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Thursday, 15 August 1974
Page: 1016

Senator MISSEN (Victoria) - I wish to add to what has been said. I think if anything this is an insulting suggestion that is now put before the Committee. In fact it is a play with words only to suggest that there has been some real change. What is achieved by taking out the words 'by way of civil action'. The clause then has to be interpreted as it stands and I do not believe the removal of these words will make any difference. The clause does not have a different meaning by taking out the words 'an action' and inserting 'a proceeding' in their place. It is constantly found in many areas of legislation, in divorce legislation for example, that the words 'an action' or 'a proceeding' are often used as alternatives. If anything 'proceeding' is a more general word which would cover an action, perhaps commenced by writ, and various other types of acts or proceedings that are instituted in courts.

The proposed change achieves nothing. If the amendment is accepted the clause will not say whether the court has to be satisfied on the balance of probabilities or whether it has to be satisfied beyond reasonable doubt. The whole nature of the amendment, in my view, means that it is even more likely that the court will have to be satisfied only on the balance of probabilities. If anything the amendment moves further away from what was suggested previously. The previous clause was rejected by the Committee and I suggest even more strongly that the Committee ought to reject this amendment.

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