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Wednesday, 2 April 1941


Senator A J McLACHLAN (SOUTH AUSTRALIA) . - The retrospectivity of legislation appears in a somewhat lurid light in this measure, because it is rarely, if ever, that legislation of a criminal character is made retrospective. Section 73c of the principal act, which it is proposed to amend by clause 3 of the bill, is as follows: -

1.   Any contractor, purveyor or other person, and any employee of a contractor, purveyor or other person, who fraudulently supplies to the Commonwealth or any officer of the Commonwealth for use by the defence force -

(a)   any article of food which is inferior in quality to or less in quantity than that specified in the contract, agreement or order under which it is to he supplied; or

(b)   any material, equipment, or beast of draught or burden which is inferior to that specified in the contract, agreement or order under which it is to be supplied, shall be guilty of an offence.

2.   Any officer of the Commonwealth who fraudulently receives for use by the defence force any article of food, or any material, equipment, orbeast of draught or burden supplied in contravention of this section, shall be guilty of an offence.

The essence of the offence is that the offender acted fraudulently. Under this legislation we propose to throw the burden of proof upon the accused, and that involves the alteration of a vital principle of the British criminal code. I suppose that very good reason exists for making this legislation retrospective to the 3rd September, 1939. In addition, however, section 73c of the principal act is to be amended by omitting the word " fraudulently ". That means that on any person who supplies goods to the Government which should later turn out to be inferior, or of less quantity than that specified in the contract, will rest the burden of proving his innocence. He must prove that he had no fraudulent intent and that he did not know that the articles were inferior, or of less quantity than that specified in the contract.


Senator Collings - Any provision less than that would allow an offender to escape.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - But we need to have our eyes open when we agree to this amendment, because we shall thereby apply a principle which although quite common in French law, is new to British jurisprudence. As I have said, a good reason may exist for the amendment. The point I emphasize is that we are now applying the retrospectivity provision only to offences under the Defence Act. Apparently, it is because the Governmenthas found it diffi cult to prove fraud in respect of the supply of material to it, that it now proposes to adopt this new principle. However, I repeat that in agreeing to the bill we should do so with our eyes open. We should regard this amendment as an exceptional provision in order to meet particular cases. In throwing upon some people, such as employees and managers who may, perhaps, be unaware of the existence of collusion between the person delivering the goods and the person receiving them, this provision may operate with great harshness. It is pretty tough; however, we are living in tough days, and I suppose that it is necessary.







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