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Wednesday, 14 August 1974
Page: 930

Senator EVERETT (Tasmania) - I do not wish to become legalistic in this matter, but briefly I do wish to rejoin to what Senator Wright has said with regard to 2 matters which he described as elementary. Of course, section 78 excludes criminal proceedings as such in relation to contraventions of Part IV. But clause 76 provides that both persons and corporations who contravene a provision of Part IV are liable to pay to Australia a pecuniary penalty which may be as high as $250,000. Clause 77 merely establishes the procedure whereby action can be taken in order to recover that penalty. Proceedings may be taken by the Attorney-General or by the Commission. So clause 77 establishes a very special right so far as contraventions of clause 46 are concerned. Without wishing to argue the matter at any greater length or to cite authorities, I simply say that it is grotesque to contemplate that, if the word 'wilfully' were inserted in clause 46 as a separate and definite element, it would be sufficient to establish that wilfulness on a mere balance of probabilities when proceedings were being taken to recover a pecuniary penalty.

With respect to the second point that Senator Wright raised, it seemed to me that he saw in clause 84 some comfort for his argument against the arguments put from this side of the chamberthat is, that it would be extremely difficult, if a requirement of wilfulness were imported into clause 46, to establish that against a corporation. My rejoinder to him is simply this: Sub-clause ( 1 ) of clause 84 has nothing whatsoever to do with the matter we are discussing because it relates only to Part V.

Senator Wright -I pointed that out.

Senator EVERETT - I realise that the honourable senator pointed it out after dinner, not before. Sub-clause (2) goes very little along the way to meeting our argument because it is simply an agency provision. Does anyone imagine that the conduct that will lead to proceedings for contravention of clause 46 will not be basically as a result of decisions taken at the board table where directors will vote on the action to be taken and those directors will have different ideas in their respective minds? I simply wish to set the record straight on 2 matters which were described by Senator Wright as elementary.

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