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Thursday, 13 May 1965

Senator COHEN (Victoria) .- Like other honorable senators, I listened with keen interest to what Senator Wright said. I think we found, last night, that we had an extremely unsatisfactory and almost meaningless provision to deal with. As the result of overnight consideration the Minister for Defence (Senator Paltridge) has come forward with an amendment which is a very substantial improvement, in that it recognises a defence, while still placing the onus of proof on the defendant. It contemplates circumstances in which a defence may be established, and I think that is proper.

I do not feel that the analogy put forward by Senator Wright is an exact one in any way. First, to my mind the addition of the the words " without his authority and contrary to his instructions" would not greatly improve the situation, because if the action were contrary to instructions that would appear to be the larger offence and would comprehend the smaller, encompassing the phrase "without his authority". I do not think there would be too many cases where something that was contrary to instructions of the proprietor would not also be without his knowledge or authority. But, secondly, my substantial point of objection to using as an analogy the State licensing acts is that this is an altogether different kind of situation from that covered by those acts. The various licensing acts deal with the proprietors of establishments selling liquor. All of the liquor laws are directed towards securing compliance with the liquor laws, by all those who deal in liquor as a matter of business, so that publicly accepted standards on the sale of liquor will be protected and the law vindicated throughout the ramifications of the liquor industry. It seems to me that what is contemplated here under the provision which creates this offence is not the case of the person whose business it is to sell medals but that of the person who passes or sells medals and service decorations furtively because they have some value to someone who wants to obtain them improperly and illegally. With the greatest respect,, and appreciating the importance of preventing trafficking in Service medals, I cannot see why a person who is innocent of any knowledge of a matter and who can prove his innocence on the balance of probability - which is the standard in all civil courts - should be convicted and subjected to the stigma attaching to conviction for this son of offence. That is why 1 would not find any great satisfaction in the adoption of Senator Wright's proposed additional test expressed in the words " without his knowledge and contrary to his instructions ". I believe that if the defendant can establish affirmatively that he did not know anything of the sale - if he can establish innocence of any knowledge or complicity in the sale - there is no reason why he should not he acquitted of the charge and cleared of any stain on bis character.

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