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Thursday, 15 August 1974
Page: 1015

Senator GREENWOOD (Victoria) - I have not been privy to whatever discussions have taken place. I am interested to see on the circulated sheet what the Government proposes. I hope if I misinterpret the position I can be corrected by what the Attorney-General (Senator Murphy) says hereafter. The proposed amendment will place in existing clause 76 the words: If the court is satisfied'. Then will be set out matters about which the court must be satisfied. The amendment provides that where the court is satisfied that a person has contravened a provision of Part IV or has done any of the other things which are set out in the amendment the court may order the person to pay to Australia such pecuniary interest not exceeding $50,000 in the case of a person not being a body corporate and $250,000 in the case of a body corporate. Then the clause proceeds as it is in our Bill. It appears to me that this still maintains the civil standard of proof. Where there are words in a statute which say 'if the court is satisfied' that does not impute the criminal standard of proof; the court is satisfied on the balance of probabilities. That is the very core of the Opposition's objection.

If one examines the subsequent amendments which are proposed one finds that the words 'by way of civil action' are excluded from the subsequent clause, and it may be that the removal of those words is designed to allay any fears that it is a civil action which is being pursued. It does not allay my fears because by the use of the words 'if the court is satisfied ' the acceptance of a standard of proof on the basis of less than a reasonable standard of doubt follows.

The subsequent clause, clause 78, is not sought to be amended, and it is apparent that criminal proceedings do not lie against a person by reason only that the person has contravened a provision of Part IV. That particular clause goes a long way towards indicating that it is a civil standard of proof which is to be applied in the case of an application by the Commission or the AttorneyGeneral for the payment of a pecuniary penalty. In short, the Opposition's position remains constant, and we do not depart from it. If by legislation there is imposed upon a person who commits certain conduct an obligation to pay a sum in the amount of $50,000 or $250,000 if it is a company, that constitutes the creation of an offence which ought to be established by the accepted standards of criminal liability in this country. It is not good enough to make an exception and to say that this sort of money is payable to the State when the standard of proof is less than that which is applied in, for example, an ordinary parking offence. It may be that the Government has the numbers to carry this. If it has the numbers, it carries this against the protests and against the vote of the Opposition. We believe that offences of this character must be proved in accordance with the ordinary concepts which have always applied in this country. We object to the change which is proposed.

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