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Friday, 3 November 1911


Senator KEATING (Tasmania) . - Proposed new section 6ie initiates a very distinct departure from the principle adopted in the Customs Act 1901 and 1902, when we first introduced a provision of this character in the law of the Commonwealth. We there provided that in certain instances the averment of the prosecution should be taken to be proof, in the absence of evidence to the contrary. It was pointed out at the time that it was a wide departure from a well-established principle of British jurisprudence to throw the onus of proof on the defendant, whereas in all cases previously the onus of proof had rested on the prosecution. But it was pointed out then, as could not possibly be urged in the present instance, that there are in many Customs cases serious difficulties in proving the guiltof accused persons. The information necessary to constitute proof often lies locked up in the breast of the defendant himself. The prosecuting Department cannot always be expected to have the same means of knowledge as he has. Moreover, it was pointed out that the defendants in all those cases were persons who were conducting business under the Customs Act, and would necessarily be conversant with its provisions. They would know that in every instance in which they were summoned the onus of proof would rest upon them, when it did rest upon them under the provisions of the Act. That is not the case here. I hope the Minister will realize that we ate dealing here with prosecutions not for offences that are now being created by the Bill, but for offences that are hereafter to be created by regulations. We are hot now providing that certain acts or omissions shall be offences against the law. These are to be offences established by regulations.


Senator Findley - But dealing directly with compulsory enrolment.


Senator KEATING - I pointed out on a. previous occasion that we are being asked to give carte blanche to the Minister and the Department, in connexion with this system of compulsory enrolment, to provide all the machinery. We are making provision for regulations which will provide for certain offences, and we are now asked by legislation to say that, if any one is charged with the commission of an offence against those regulations, the averment of the prosecution shall be deemed to be proved unless he can disprove it. Not one of us' knows at the present moment what those offences will be, since they are not set out in the Bill. The similar provisions of the Customs Act apply only to traders and persons who, from their daily association with the business of the Customs, are conversant with the existence of those extraordinary provisions in the Act.


Senator Findley - Every one will be conversant with the regulations in connexion with compulsory enrolment under this Bill.


Senator KEATING - Quite the contrary. Every one 'in the community takes it for granted that if a person is summoned before a Court of summary jurisdiction, such as a Justices Court, or a Police Court, there is no possibility of his being convicted of an offence unless the prosecution proves it. Every one would be justified in assuming, if he were summoned for an offence against the Electoral Act, that the ordinary procedure would be followed. A layman, looking through the Act, and reading even this proposed new section, would not understand that, if he were prosecuted for an. offence against the regulations under this provision, the averment of the prosecution would amount . to proof. The Minister must have been moved to consent to the introduction of this principle in the Electoral Act on departmental, and not political, considerations. The Electoral Branch of the Home Affairs Department should recognise that it is on a totally different plane from the Customs Department.


Senator Findley - Hear, hear; one is a major matter and the other a minor matter.


Senator KEATING - I am sorry for the Minister if that is the way in which he puts it here. If, in this matter he had reversed the order, he would have been perfectly correct. I do not know whether the honorable senator has had any experience in the administration of the Customs Department temporarily, in the absence of the Minister of Trade and Customs, but, even without the close knowledge which an experience of that kind would give, he must realize that the Customs Department is dealing daily with Customs experts in the community. The shipping clerks of important firms are really Customs experts. They know the Customs Act from end to end, and, in many cases, doubtless better than do the officials of the Department. They are not taken unawares when prosecuted.


Senator Millen - May I suggest another reason, namely, that there is an incentive to fraud under the Customs Act which is entirely absent here?


Senator KEATING - That is so. But it will be admitted that persons prosecuted under the Customs Act are not taken unawares.


Senator Findley - Every one in Australia over the age of twenty-one will be familiar with the regulations in respect of compulsory enrolment.


Senator KEATING - How many of those who are over twenty-one will ever read the Act?


Senator Findley - Every citizen over twenty-one years of age has been or will be supplied with a copy of the regulations.


Senator KEATING - The honorable senator may supply every citizen of the Commonwealth with a copy of the regulations," but how many will read them? How many will feel bound to read. them? Every merchant in the community is bound . to read the Customs Act if he is to carry out his daily, .duties properly, and every shipping clerk of a reputable firm must know the Act practically from end to end.


Senator E J RUSSELL (VICTORIA) - How many boys read the Defence Act?


Senator KEATING - How many who have read the regulations will be aware of this provision? I say that before we establish a system of this kind we should be abundantly certain that it is justified. We shall next have some other Department of the Public Service asking for similar legislation to come to its assistance. We adopted this principle in connexion with the Customs Department after lengthy debate and careful consideration, and not until it was shown to be justified for the reasons I have just stated. Those were compelling reasons, but there is not one of them which can be applied to this Bill. If similar legislation be adopted at the request of other Departments, the result will be that, in future, it will be competent for any officer merely to make an averment, and the mere fact that the party charged is not present when the case is called on will mean that he will be convicted without the case even being heard. At present, if a person charged with an offence does not attend in Court at the time fixed for the hearing of the case, because he is unable to appear, has mistaken the time, the date, or the place, or for any other reason, the case is heard ex -parte, but it is still an obligation upon the prosecution to prove the case in the absence of the defendant. Under this provision, however, if a person charged with an offence against the regulations fails to attend, or does not attend punctually, or at the proper place, the mere averment of the prosecution amounts to a conviction. The Minister says that this is only a minor matter, but a conviction in a Court of Petty Sessions for a minor offence is just as much a conviction as for a major offence. Let me point out further that, in the State of Victoria at any rate, unless the fine imposed exceeds £5, no proceedings can be taken to have the conviction quashed.


Senator Findley - The defendant can ask that the fine be increased to that amount.


Senator KEATING - How can he ask that the fine be increased if he is not present when the case is heard? And let me tell the honorable senator that it is when the defendant is not present that this provision will operate.


Senator Findley - What is the use of stating hypothetical cases?


Senator KEATING - The Minister will find that the greater percentage of convictions under this provision will be secured in that way. The Electoral Department of the Commonwealth is highly organized, and has all the means at its disposal of proving its cases. It has greater facilities for attending the Court, and submitting the circumstances of each case, than have average individuals. And yet this is a departure prompted undoubtedly by departmental rather than by political considerations. There is not the slightest analogy between prosecutions by the Electoral Office and prosecutions by the Customs Department, and there is not a tittle of justification for establishing, in connexion with the work of the Electoral Office, such a departure from the established system of jurisprudence, which is that no man shall be convicted on the mere averment of another. Why an officer of the Electoral Office should be able, in the absence of a defendant, to secure a conviction against him by a mere averment, I do not know. When we consider, further, that such convictions cannot be quashed, at any rate in the State of Victoria,- unless the fine imposed amounts to a certain sum, it is clear that, under this proposed new section, we shall be making provision for wholesale convictions.


Senator FINDLEY (VICTORIA) (Ministerwithout portfolio) - Will . this Bill prevent any elector entitled to enrolment appearing in any Court when a charge is preferred -against him?


Senator KEATING - No. But if that is the reason, there is no excuse for this provision at all. My honorable friend has given the best reason why such a provision should not appear in the Bill. Is there any reason at all why the Electoral Office cannot be represented? I am saying that the bulk of the convictions under this proposed new section will be secured against persons who do not appear to answer charges against them. That is what it is designed for, and if it is not designed for that, it is of no use at all. If the defendants can appear-


Senator Findley - Thev will appear.


Senator KEATING - The Minister should know that he is stating what is not in /accordance with practical experience. The Department, in this matter, wishes to shirk its responsibilities. It is a wellorganized Department, and why should it be relieved of the obligation cast upon every ordinary citizen and every business firm? Why should it be relieved of its responsibilities because it seeks to secure wholesale convictions against persons who may not realize that their presence in Court is even necessary? It is the persons charged with these offences who will be convicted and punished, and the Department will not be advantaged in any way. Why such a principle should be applied to the work of the Electoral Office passes my comprehension, and I am surprised that any Minister could be found who would yield to any such suggestion from the Department.







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