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Thursday, 13 May 1965


Senator McKENNA (Tasmania) (Leader of the Opposition) . - I am very pleased to hear from the Minister the result of his consideration of our submissions yesterday. The amendment that he now proposes cures the very grave defect that existed in the proposed sub-section 3, the effect of which was that the proprietor of an establishment, even if he proved affirmatively and conclusively and to the satisfaction of a court that he had nothing to do with the sale, the subject of the charge, that proof would not relieve him from liability and punishment. Now that principle has been completely abdicated, and that is a good thing. I welcome the Minister's discarding of the first proposed sub-section 3. I am fully aware of the truth of his reference to the need in special circumstances to impose the onus of proving a degree of innocence. 1 know of cases in law where that necessity is imposed. In this case I would not contest that a proprietor might carry the onus of proving affirmatively that he had nothing to do with the transaction. However, it occurs to me that in the previous sub-section 3 it was slated that it is not a defence for a person to prove that the sale, supply or offer or display for sale or supply of a service decoration was contrary to his instructions. That aspect has been picked up by the Minister in relation to the new onus that is cast upon a person, but he has deleted the words " was without his authority". I do not know whether that deletion was deliberate.


Senator Wright - What is the wording of the amendment?


Senator McKENNA - They are, " unless he proves that the sale, supply, offer or display was contrary to his instructions ". The words " was without his authority " appeared in the sub-section we are now to discard, lt is a particularly tight onus of proof to prove in every case that the transaction complained of was contrary to a person's instructions.

I put to the Minister the hypothetical case of a sale in an establishment such as a haberdashery store or a bar in a hotel. There may be a transaction in relation to a service decoration between two customers, lt may happen that in a tobacconist's shop a customer sells a service decoration to another customer. This is not a remote possibility. It could arise. The only way that the proprietor could jump clear in relation to that sale, if he were charged, would be to prove that what was done was contrary to his instructions and that he had no knowledge of it. He could never establish that. It seems to me that he should have the advantage of the alternative of escaping by establishing that the sale was made without his authority.

I hope I have made the position clear. It seems to me that the amendment proposed by the Minister would be completely acceptable if he adopted the two elements of the discarded sub-section, namely that the person concerned could prove that the transaction complained of was without his authority or was contrary to his instructions. If the Minister were to include those two elements I think he would carry the subsection as far as we could reasonably expect him to carry it. Would the Minister indicate why the words " was without his authority " were not translated into the new sub-section so that the person charged would be able to have two avenues of escape, by showing that what was done was done without his authority or, alternatively, that it was contrary to his instructions? The case I submitted to the Minister is a real possibility. Two persons in a store of any category have a transaction between themselves. The proprietor of the establishment could well be caught up under this provision, in that he had given no instructions that the transaction should not take place. I think it should be competent for him to prove as an alternative that what was done was done without his authority.


Senator Wright - Would the honorable senator be good enough to bear with me? I did not quite follow the instance that he gave.


Senator McKENNA - 1 am citing the case of any kind of establishment at all, be it a tobacconist's, a hotel or haberdashery store. Two customers are in the store. They are there to purchase haberdashery. One says to the other, " I will trade you a service decoration ", or " I will sell you a service decoration ", and the transaction takes place between the two of them.


Senator Morris - Between the two customers?


Senator McKENNA - Between the two customers, customer A and customer B, in the haberdashery store. While they are making their respective purchases, they have a transaction between themselves. That fits into this proposed new sub-section, which provides that a person at whose place of business there is a sale is liable, unless he proves that the transaction was contrary to his instructions. How could he possibly instruct either of those two people? He would have no knowledge of the transaction. I think that we could perfect the amendment proposed by the Minister if we just adopted the exact wording on that point, of the sub-section that we propose to reject, which reads -

.   . 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.

AH that I am suggesting is that the two elements - being without his authority or being contrary to his instructions - would be two elements on the proof of which - the onus being on him to establish the proof - he should not be convicted. There must have been a reason for this, or it might have been sheer inadvertence.


Senator Paltridge - It was not inadvertence.


Senator McKENNA - We advance that far. I invite the Minister particularly to consider the circumstances that I have stated at short notice. Two people are in a haberdashery store. They have a transaction between themselves, not in the hearing of the saleswoman, the proprietor or anybody else at that stage.


Senator Wood - Would that be considered to be within the scope of the business?


Senator McKENNA - Yes. Let me read the provision to the honorable senator to make the provision plain. I shall read the relevant part of the amendment.


Senator Wright - It would not be considered to be within the scope of the business. I think Senator McKenna did not hear Senator Wood clearly. It will not be within the scope of the business.


Senator McKENNA - No, not within the scope of the business. I thought Senator Wood said " within the scope of the section " not " within the scope of the business ". It could be and it could not be. To make the case completely clear, I have referred to a haberdashery store. Take a tobacconist's store, which does not deal normally in service decorations. Two people are in a tobacconist's store. Let us assume that they are customers. They have a transaction between themselves. In the terms of the amendment that we are considering, this is what would apply: The person at whose place of business this transaction took place, that is, the person at whose tobacconist shop the service decoration was sold, supplied or offered or displayed for sale or supply, would be in contravention of sub-section (3.) unless he proved that the sale, etc. was contrary to his instructions. On that ground, and on that ground alone, he should be exculpated.

I invite the Minister to deal with the case I pose: Two customers in a tobacconist's shop conduct a transaction relating to a service decoration, such transaction being prohibited under the proposed section we are now considering. If the proprietor of the shop is charged in those circumstances he is given one way out only. That is to accept the onus of proving that the transaction was contrary to his instructions. He cannot possibly prove that. He had no knowledge of it. He had no means of acquiring knowledge of it. Surely he should have available to him the element that was included in the sub-section we are discarding, namely that the transaction took place without his authority. That should free him. 1 regret the necessity to reiterate this point two or three times, but I think the Minister should be aware of the point that I make. What I propose to him is that before the words " contrary to his instructions " we insert the words " without his authority or ".







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