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Friday, 9 August 1912


Senator O'KEEFE (Tasmania) .- A A layman does not like to follow a member of the legal profession in discussing questions of a legal character. But it seems to me that some of the objections raised by Senator Gould in his long deliverance, and by Senator Clemons in his more moderate speech, were somewhat overdrawn. We may approach this question by asking whether it is not reasonable to assume that any Commission which may be appointed in the future will be constituted of persons possessed of common sense? I am willing to admit that a member or the Chairman of a Commission may, in the past, have said things which will not be upheld by the general public. We may take it for granted, however, that members of Commissions will be possessed of ordinary common sense, and that they will approach their duties with a keen appreciation of the necessity for being thoroughly impartial.


Senator St Ledger - For example?


Senator O'KEEFE - I - I do not think that the honorable senator could be impartial, because he views matters' too much from a party stand-point. Senator Gould, in putting a suppositious case, referred to clause 5 of the Bill, which reads -

It shall be a defence of a prosecution under this section for failing, without reasonable excuse, to produce any documents, books, or writings if the defendant proves that documents, books, or writings are not relevant to the inquiry.

The honorable senator stated that even if the Commission wanted to probe unnecessarily into the private business of a witness, the witness possessed that safeguard. But, he added, the onus of proving the irrelevancy of the question will lie on the witness. Senator Gould then went on to say that even if the witness proved that the question was not material to the inquiry, and therefore need not be answered, he would, nevertheless, have lost his time and money, and would be without the means of obtaining redress. But I would ask whether the same disabilities do not apply to every member of the community in connexion with our criminal laws? I have in my mind the case of a man in Tasmania who, as the result of an official blunder, was placed upon his trial for murder, only two or three years ago. He was compelled to bring a number of witnesses from one end of that State to the other, and was absolutely ruined as a result of that charge. Yet he was not called "upon to prove his innocence, because at the last moment the prosecution was abandoned. He has been able to secure no redress. As a proof that this is so, I may mention that in two or three successive sessions a member of the State Parliament has moved that a certain sum be granted to him to reimburse him for his out-of-pocket expenses. But the Government of that State have persistently opposed the motion. They affirm that the individual in question was the victim of a police blunder, to which any citizen is liable. Under this Bill no citizen can be placed in a worse position than he is liable to occupy under our common law.


Senator St Ledger - Under this Bill the burden of proof will be shifted.


Senator O'KEEFE - . - Was it not incumbent on the accused to prove that he was innocent ?


Senator St Ledger - No. It was for the Crown to prove his guilt.


Senator O'KEEFE - I - It amounts to very much the same thing. I admit that under clauses 5 and 6 of the Bill there is an opening for injustice to be done to any citizen. But no honorable senator can point to any law which renders it impossible for some member of the community to be victimized.


Senator Fraser - Do not make victimization easy.


Senator O'KEEFE - Wha What will this Bill achieve more than does the original Act?


Senator Millen -That was exactly what was said in justification of the Star Chamber.


Senator O'KEEFE - Eve Every honorable senator opposite knows perfectly well that there is no desire to inflict injustice upon any member of the community. The Bill is merely designed to' insure that no citizen shall refuse to give evidence before a Royal Commission. I am thoroughly satisfied that when, by the swing of the pendulum, the present Government retire from office - and I do not expect them to remain in power for ever, although I believe they will remain there for a few years - no citizen will suffer injustice if this Bill is then the law of the land. Too much stress has been laid upon the prosecution of a witness in Sydney, who declined to give evidence before the Sugar Commission. It was inferred by Senator Gould that that was the only reason for the introduction of the Bill. Will honorable senators opposite say that when an Act is put into operation and found to be ineffective to do what is intended, it should not be amended? Will it be said that the present Royal Commissions Act is effective to do what is intended ? When it was put into operation, one of the witnesses absolutely flouted the Commission. Very soon after the Act began to operate, its weakness was discovered. The penalties were too small.


Senator Millen - Is it the honorable senator's position that with an ordinary normal Chairman the Act is sufficient, but that with an abnormal Chairman, another Act is required?


Senator O'KEEFE - No, No, it is not so. My position is that with any kind of Chairman, the existing Act is ineffective. The maximum penalty of £50 would have no effect upon some trusts and combines.


Senator Millen - Would £500 be effective in such a case as that?


Senator O'KEEFE - P - Probably it would pay some people to submit to a fine °f £5<000 rather than give certain information ; but to the extent that £500 is ten times £50, this Bill is ten times more effective than the existing Act. Reading between the lines of the speeches which have been made in opposition to the Bill, and reading the articles which have been published in newspapers against it, one can see the true grounds of opposition to it. There is a strong desire on the part of some members of this Parliament, and several writers in the press, to make the powers of a Royal Commission as ineffective as they can be, or, at all events, less effective than they ought to be.

Believing that, in the interest of the community at large, it is not desirable that a small section should have so much consideration, I shall have much pleasure in supporting every line of the Bill.

Senator SAYERS(Queensland) [i2.2o"|. - I generally listen to Senator O'Keefe with the feeling that he understands his subject ; but I have been much disappointed with his defence of this Bill. He started by mentioning a case in Tasmania where a man was arrested for murder. There is no comparison between that illustration and this Bill. In the first place, under this Bill a person has to prove himself inno-cent ; but a man arrested for murder has to be proved guilty. It a most notorious man happens to be Chairman of a Royal Commission, a witness may be threatened and bullied until he hardly knows where he is. In one recent case a man who had been examined as a witness told me that the Chairman of a Commission turned to him and threatened him that he must answer certain questions ; and when the man said that he knew nothing about the subject, the Chairman retorted, "Unless you answer that question, 1 shall deal with you as far as the law gives me power." Is that the way in which a witness in the box ought to be treated? That man told me that before he left the box he would have admitted anything to get out of it. He was not an uneducated man, either. He was a clerk in a sugar mill. He said, " I was never bullied and bounced so much in my life. T really did not know how to answer the question, and yet I was threatened with being sent to gaol if I did not." We do not know who may be Chairman of a Royal Commission. We have known a member of this Parliament to make an exhibition of himself all over the world. He would hang a man if an Act gave him power. Fancy an individual like that being Chairman of a Royal Commission and exercising the powers given by this Bill. It is inconceivable that in a free country such a measure should be submitted to Parliament. The Star Chamber was abolished long ago in Great Britain, but it is to be reestablished in this new country. I am surprised that honorable senators who believe in a reasonable amount of liberty being enjoyed should support a measure of this kind. Let us look at some of the provisions. Under clause 7, if a witness who has been summoned does not attend day after day until released by the Chairman, a warrant may be issued for his apprehension.


Senator Blakey - What is wrong with that?







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