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Wednesday, 12 May 1965

Senator COHEN (Victoria) .- I refer to clause 19, which relates to the proposed new section 80b (3.). The clause was discussed by Senator Wright and the Leader of the Opposition (Senator McKenna). lt is a most extraordinary provision, lt contemplates the position where a Service decoration is sold or supplied or offered or displayed, not by the particular person in the business but by some other person. It contemplates the position where you have, perhaps, a servant or an agent making a sale or making some disposition of a decoration in circumstances where the ordinary inference would be that it was made on behalf of the principal. Once the sale or the supply of the decoration was proved by a person, say, in a shop or in a place of business, you would then turn to see who the principal was. What this clause seems to say that you can identify the principal and then that principal has the onus of disproving his knowledge or his authority. But when he does that it is still no defence.

To my mind this is a quite unprecedented provision. I have not seen the like of it before. We often have cases where the onus of proof of certain facts rests upon the defendant. The ordinary position is that the Crown carries the onus of proof. But in certain statutory offences, and even in some offences under such legislation as the Crimes Act, the onus of disproving the offence actually rests upon the defendant. In this case circumstances are set out in which the defendant could make an effort to disprove his guilt, and although he does that, the clause provides that it is still no defence. I would like to know, if the Minister can tell me, just what would be a defence. If the defendant proved that the sale or the supply was not made with his knowledge and even further that the sale or the supply was effected contrary to his instructions, and if the court dealing with the matter were satisfied of those things and was nevertheless required to convict the man, under what circumstances could he escape liability?

Senator Wright - Where is the language that says he cannot be convicted until you prove that he has sold it or supplied it himself or through his agent?

Senator COHEN - .If it is sold at his place of business-

Senator Wright - But the provisions do not state that that is an offence.

Senator COHEN - That is perfectly true.

Senator Wright - You have to prove that the defendant did it. I think that there is a good deal of confusion.

Senator COHEN - With great respect, I do not agree with the honorable senator. Once you show that the sale or supply was effected at the place of business of a person and you have somebody there who is ostensibly the agent or the employee of such a person, there do not appear to be any circumstances in which the apparent principal can escape liability. I would like to know from the Minister, if he can tell me, the kind of defence that would be available to a person who has a place of business at which, contrary to his instructions, the sale or the supply of a decoration is effected.

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