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Thursday, 13 May 1965

Senator COHEN (Victoria) .- I am pleased to see that the Leader of the Government in the Senate (Senator Paltridge) has proffered an amendment to the Bill, but I regret he has said so firmly that he will not accede to the suggestion made by the Leader of the Opposition (Senator McKenna). I want to put to him another example of what might happen, even under the amendment that he proposed today. I refer to the case of a business establishment having a number of employees. There may be half a dozen, there may be a couple of dozen or there may be hundreds. The business establishment is not concerned with the supply of medals or similar articles. The proposed section does not refer only to persons in the business of dealing in medals or decorations of any kind. It applies to places of business of any kind.

Take the situation where one of a large number of employees sells a medal over the counter to a customer or to somebody entirely outside the scope of the business of the employer and entirely without his knowledge. Under the amendment that the Minister now puts to the Senate, such a person would not be able to escape liability even if he established those matters. I suggest that is a case in which, provided the bona fides are accepted and that the person has proved affirmatively that the whole thing was done without his knowledge, he should be entitled to the benefit of the exception. He has proved his good faith, an absence of knowledge and an absence of authority on the part of the employee.

The contrary view, which is implicit in the Minister's amendment, is that an employer who does not deal at all in matters like decorations and medals in the course of his business would be required at his peril positively to instruct each employee that in no circumstances must he, whilst in his employment, sell, offer or supply any service decoration.

Senator Paltridge - So he should.

Senator COHEN - To every employee?

Senator Paltridge - Yes.

Senator COHEN - Should he line his employees up at any stage, particularly his new employees, and specifically warn them that in case they are thinking of selling a service decoration at any time in the future, they can take this warning as express notice that that would be contrary to his instructions? It seems to me to be going a long way. 1 have given an example of a retail establishment, lt could be a factory, a petrol station or any one of a large variety of places of business. ls it incumbent on a person who employs a large number of workmen in a factory, as it would be under the amendment, to issue a positive instruction to everyone coming into his employ in the factory? Must he say to (hem: "One thing 1 want to tell you is this: I will never consent to your disposing of or selling any service decorations that you might have. You can accept this now as express notice that I instruct you never to do so."? That would be reducing the thing to absurdity.

I can understand, and I fully appreciate, what is in the Minister's mind. He does not want to make it easy for people to dispose of service decorations, I would not go beyond what my leader said, that this is the exceptional kind of case in which one can conscientiously agree to place the onus of proof on the defendant. It is a question of what he has to prove and whether what he has to prove is reason* able. I ask the Minister to consider those examples and to turn his mind again to the question of whether he would not be prepared to put before the words " contrary to his instructions " the words suggested by Senator McKenna " without his authority or ".

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