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Wednesday, 12 May 1965


Senator WRIGHT (Tasmania) .- I rise because of my interest in this matter and in deference to what the Leader of the Opposition has said. I direct attention to the actual terms of proposed new section 80b (1.) and point out that there is nothing in the provision to the effect that, if a decoration is sold on a person's premises, he shall be deemed to be liable. All that the proposed sub-section provides is that a person shall not make, sell, supply, offer to sell or supply or display for sale or supply a service decoration. I see nothing in the provision which relieves the prosecution of the obligation to show that the defendant has sold or offered to sell or supply or display for sale a service decoration. All that proposed sub-section (3.), to which objection is taken, provides is -

If iti contravention of sub-section (1.) of thi& section, a service decoration is sold, supplied or offered or displayed for sale or supply on behalf of, or at the place of business of a person, it is not a defence for that person to prove that the sale, supply or offer or display for sale or supply was without his authority or contrary to his instructions.

Merely to prove that is nol a defence, but nevertheless the prosecution has an obligation. I do not see any alteration to the ordinary onus of proof.

I have not done more than glance at the position, but it seems to me that the prosecution must show beyond reasonable doubt that the defendant made, supplied, or offered to sell or supply or display for sale or supply a service decoration. Of course, if a person performed this operation through a servant, he would come within the meaning of the sub-section. But I see nothing which arises by way of implication from proposed sub-section (2.) to the effect that, if the decoration is sold at his place of business without his authority, he becomes liable. The court must consider these elements, but nevertheless it must come to the conclusion beyond reasonable doubt that there was a relationship of agency or service on the part of the hand that sold it or displayed the article. Despite the fact that the honour or award was displayed on a person's premises and sold contrary to his instructions, the court must still come to the conclusion, as I see it, that it was done for him by his servant.







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