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Thursday, 15 August 1974
Page: 984

Senator MURPHY (New South WalesAttorneyGeneral) - The Government does not agree with the amendment and it will oppose it. There is a clear distinction between the trade practices provisions and the consumer protection provisions in the Bill. For the most part, the consumer protection provisions deal with conduct which amounts to a criminal offence. This is in cases where there are false representations or conduct which is obviously of some fraudulent type and which is of a kind ordinarily covered by the criminal law. In the trade practices area, the conduct is more commercial conduct dealing with competitors, driving them out of business and so forth. An endeavour has been made to treat this area in the civil sense. The nature of the penal provisions are such as to create what are called civil offences rather than criminal offences. This is a well known concept in the law. For example, the categorisation of such offences in this way is carried out in industrial law in relation to ordinary strikes and lockouts which are met by the imposition of monetary penalties. These are regarded as civil offences. Exactly the same standard of proof applies in relation to such offences as applies in this case.

I am familiar with the cases to which the honourable senators refers. I suppose that in the course of my career I have had occasion to delve very deeply into this subject. It is clear that if you have a civil offence such as this, the standard adopted is what is called the civil standard. But when a tribunal is being satisfied that the civil offence has been committed, the degree of persuasion depends upon the gravity of what has been alleged. So if a person commits some relatively trifling infraction of a law, the tribunal might be more readily satisfied of this than if some allegation were made which was getting close to being a criminal offence. The gravity of the allegation would be taken into account before the tribunal would determine that it was satisfied. Therefore, as a matter of law- not merely as a matter of practice- if a grave breach is alleged the degree of persuasion of the tribunal must be measured in relation to the seriousness of what is alleged.

We think it is important not to import into the trade practices area the notion of criminality as such. We have endeavoured to avoid doing this. I concede that where a very grave breach is alleged to have been committed by a corporation, in a case which one may say is the worst case of some systematic breach, one might come very close to applying the criminal onus, but the tribunal would need to be fully satisfied. We thought it was important not to import the atmosphere of criminality into the commercial area in which offences committed would not be criminal offences but what could be properly described as civil offences. Inevitably, if the Opposition is successful in its bid to include in the clause the phrase 'beyond reasonable doubt', businessmen who are caught up by these provisions will be treated as criminals. If the Opposition wants to include the words 'beyond reasonable doubt' one may as well say: 'Why not treat it as a criminal offence?' But that would introduce the atmosphere of criminality, and in that event a person or a corporation would not be able to say: 'Under this area it is true that we are subject to a fine- a monetary penalty- but we are not criminals. ' There are plenty of offences which carry with them the imposition of monetary penalties but which are not criminal offences. They are civil offences.

Senator Greenwood - What sort of offences?

Senator MURPHY - I have given as one example the strike or lock-out provisions. As a matter of fact, many years ago I was involved in a case in which there was an exhaustive examination of the law and it was determined that the proper onus of proof to be applied was the civil onus. But, of course, the tribunal would need a good deal of satisfaction before proceeding to conviction in a case where a grave breach had been alleged. Nevertheless, it is a civil offence. The Opposition is seeking by this amendment to turn this group of civil offences under this area of the trade practices legislation into criminal offences. The Opposition may find that those people whom it thinks it is helping will not be at all happy when they realise the significance of what it is seeking to do. As the Opposition knows, we have ameliorated a lot of these sorts of things. But having passed a number of provisions the Opposition is now seeking virtually to turn civil offences into criminal offences. It is seeking to introduce into a civil case the onus of proving a matter beyond a reasonable doubt. As the Opposition is aware, the onus of establishing something beyond a reasonable doubt does not apply in civil offences. Senator Greenwood instanced a High Court case, but that is quite distinguishable. I am well aware of that case; it dealt with a civil claim for damages. Under this legislation we are dealing with a civil offence which carries a monetary penalty. The Opposition is seeking to turn a civil offence which carries a monetary penalty into a criminal offence. I suggest with all respect that there is plenty of protection available on a proper judicial approach, that is, a legal approach. This is spelt out in cases such as Briginshaw and later cases. Where a grave offence has been alleged the tribunal would want to be very clearly satisfied. I suggest, with respect, that that has been very carefully considered- and regard has been had for the clear distinction between the criminal offence in the consumer protection area and the civil offences which are under the trade practices heading. I think the Opposition is not achieving very much because where there is a grave breach alleged, the tribunal would want to be satisfied according to those standards which have been laid down taking into account the gravity of the matter. What the Opposition is doing is introducing this criminal element into an area where the Government are concerned to keep it out.

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