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Thursday, 15 August 1974
Page: 986

Senator MISSEN (Victoria) - I consider that this is a very important and necessary amendment to this Bill. It is all right for the Attorney-General (Senator Murphy) to say that we would be importing a notion of criminality into this if, in fact, it is beyond reasonable doubt. But I think we have got to look at the substance of the clause which is proposed. It is one which imposes very heavy penalties not only on people who commit offences under the Act but also on those who induce the offence and those who are directly or indirectly concerned and those who conspire. It is not just a matter of a wealthy company paying the penalty. It is a matter of individuals who may be fined a pecuniary penaltythe word 'penalty ' is used in the Bill- of up to $50,000. This sweeps far in excess of most of the criminal penalties that are found in our community. To talk about importing a notion of criminality into this matter, when in fact it concerns a very grave offence and a very grave penalty on the part of persons, is I think a matter that has substance. Furthermore, to say that the gravity of the matter will be taken into account by the court when it is considering say, the penalty, is I think -

Senator Murphy - Not the penalty. I am talking about whether the offence has been proved.

Senator MISSEN -Whether it has been proved?

Senator Murphy - Yes. Leave aside the question of penalty. We are talking about the proof of the matter.

Senator MISSEN -When we refer to the proof of the matter we refer to the person who it is claimed has committed an offence having the right to demand that the commission of the offence be established. He should not have to depend on the fact that the court may consider that it is a very serious offence and therefore may impose in its own mind some higher standard of proof. That is what the Government is really suggestingthat the court somehow will make up its mind to impose a higher standard. This is not what the Government is setting out in this Bill. It is leaving the question as a matter of proof on the balance of probability. It is not sufficient in my view that the Government should leave it to the person who is adjudicating the offence to determine that it is a very serious matter and that therefore he will require more proof. It is important that citizens will know, from reading the Bill, exactly what their offences may be and what proof will be required.

I want to remind the Committee that last night we did two things in respect of clause 46, the

Senate decided it would not put in the word 'wilfully' to establish the offence of monopolisation. There is, of course, a lot of doubt and vagueness about that clause. I suggest that if the Government is not going to have words like 'wilfully' in the Bill then it certainly does want a standard of proof which is high before penalties are imposed.

I refer now to another example of what we did last night- clause 49 which relates to price discrimination. The Committee would not in subclause (1) include the word 'knowingly'. Not only that, the Committee left it as a matter of fact to be established as to whether there was discrimination between purchasers of goods. In that same clause there is a provision that persons can, of course, prove that they have not committed an offence. That is in sub-clause (2). Sub-clause (3) of clause 49 states:

In any proceeding for a contravention of sub-section ( 1 ), the onus of establishing that that sub-section does not apply in relation to a discrimination by reason of sub-section (2) is on the party asserting that sub-section ( 1 ) does not so apply.

So, we are already importing an onus on the defendant if he is to establish a defence under subclause 2. We should bear in mind the decisions which we made and the fact that we did not include these last night. On that basis I think that at least in this clause, bearing in mind the reality of the matter- not whether the penalty will be given the name of a civil penalty or a criminal penalty; that is not the substance. The substance is the amount of money and the responsibility which individuals in this community will undergo if they are convicted of charges under Part IV. I think that, bearing in mind the substance of the whole matter, it would be outrageous for us to impose these penalties without requiring the criminal standards of proof to be satisfied before people are subjected to these charges are sustained.

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