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Thursday, 15 August 1974
Page: 986

Senator GREENWOOD (Victoria) - There are 2 matters that I would like to take up in the light of what the Attorney-General (Senator Murphy) has said. I think that the way he has presented the case does not give sufficient weight to words which appear in the clause. The first point I make relates to the point on which he relies with regard to the gravity of the conduct with which a person is charged affecting the standard of proof which the tribunal will consider. As I understood him, if it is a really serious offence the court which is charged with hearing the matter will therefore expect a higher standard of proof and it is fair enough to have the standard of the balance of probabilities.

Senator Murphy - You know that there are only 2 standards; but you know that, in the application of the civil standard, if it is a grave offence that is alleged a higher degree of satisfaction will be required. Do not let us quibble over words. There are only 2 standards as such.

Senator GREENWOOD - I agree with the Attorney-General that that is the language one can find in the reports. I think that language can be found in the case to which I referred. The difficulty always is the application of it. Maybe we are at one in putting it that way. But when the Attorney-General uses that argument in this case he ignores the fact that in clause 76 of the legislation gravity is expressly to be taken in account in fixing the amount of the penalty. It seems to me, therefore, that before one gets to the penalty one has to decide whether the person is guilty of the conduct- the act or omission- charged. It is at that point that one uses either the standard of the balance of probabilities or the standard of reasonable doubt. If one uses the standard of reasonable doubt one has to establish that the man is, shall we say, guilty of what he is charged with in accordance with the traditional concept which I think, with regard to criminal conduct, none of us would want to alter. If he is guilty, then the penalty will vary according to the gravity of the offence.

If it were an inadvertent breach of the monopolisation provisions in which the conduct engaged in really was not intended, I would imagine that the counsel appearing for the person or company could put up a pretty strong case that the penalty should not be high. It would be for the court to decide what the penalty would be. On the other hand, if the conduct amounting to monopolisation was obviously purposeful and was designed quite positively to eliminate or damage a competitor, then the court could conceivably take a very serious view of it, and properly should in my judgment. But these matters are expressly to be taken into account under clause 76, which says:

A person ... is liable to pay to Australia such pecuniary penalty ... as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Superior Court of Australia or the Australian Industrial Court in proceedings under this Part to have engaged in any similar conduct.

They are the matters which relate to the gravity of the proceedings. Therefore, to bring in gravity as a relevant factor in support of using the standard of proof of the balance of probabilities is not to give sufficient weight to the fact that the legislation requires the gravity to be taken into account in determining the amount of the penalty which is imposed. I think that that aspect of what the Attorney-General says is relevant to what we are considering.

The second point I make is that there is a distinction between the ordinary civil suits- the claims by persons one against the other- and the criminal actions. There is no doubt that under clause 76- the clause we are considering- it is an action by the state against the individual. The action can only be brought by the AttorneyGeneral or the Commission and the money, when it is ordered to be paid, is paid to the State. That is why I say it is properly to be regarded as a fine. One is not concerned with the amount which an individual has lost; one is concerned only with the imposition of a penalty which is payable to the State. Let me use a homely example for the benefit of one or two people who might have had some experience of the situation. If ever a union were convicted and a penalty imposed, it would be required to pay a monetary sum. That sum could be $ 1 ,000 or $2. But it goes to the State and is imposed irrespective of what the loss might be. The penalty mentioned in this clause is of the same character. It is obviously the sort of penalty which ought to be imposed when the standard of proof is the standard of proof in a criminal action.

The other type of action is the civil action. One may bring a civil action under clause 82 of the legislation, which provides:

A person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part

Iv or V may recover the amount of the loss or damage by action against that other person.

That is a civil action. If a competitor is injured by virtue of monopolisation, exclusive dealing or price discrimination, he has a cause of action which he can take to the court. On that issue he relies on the balance of probabilities. That is properly so because it is an action in which one citizen litigates against another citizen. That is an instance in which the balance of probabilities standard of proof ought to apply. That is where civil action is appropriate. It is not appropriate in the other area.

I ask the Attorney-General to look at the matter in that way because- I have heard the AttorneyGeneral use this argument when he was in Opposition- once precedents are created for breaking down a consistent and accepted standard, the way is opened on some other occasion for people to use the precedent and to apply it in some other circumstance. The Attorney-General well remembers the judgment in Woolmington's case about which lawyers in their undergraduate days learn- that there is a golden thread which goes right through our criminal law, namely, that a person is not guilty of a criminal offence until all the ingredients of what is alleged against him are proved according to the criminal standards of proof beyond a reasonable doubt. Let us preserve it in that way for all offences that this Parliament establishes.

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