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Friday, 3 November 1911

Senator MILLEN (New South Wales) . - It appears to me that Senator Henderson and another senator who has spoken have purposely confused the issue raised by this clause. It has nothing whatever to do with what the Government may seek to do in its relation with electors. The Government are not called upon to administer this clause. The Court is called upon to do so, and when Senator Henderson tries to draw a picture of a Government so perfect that it is going to follow, study, and nurse every elector so as to keep his feet in the straight path, he is absolutely outside the clause, and he knows it.

Senator Long - Is not the Court part of the government of the country ?

Senator MILLEN - I have no doubt my honorable friend wants to make it so, but hitherto one of the distinguishing features of the British system of government has been that it has kept the Judicature apart and distinct from the Legislature.

Senator Henderson - The honorable senator is following his usual method of mystification.

Senator MILLEN - There is no mystification about it. If Senator Henderson cannot see the difference between the Judicature of the country and the administrative part of it I cannot help it. If he turns to any work on government he will see the distinction drawn. One thing that we have always done is to keep the Court - the officials whose duty it is to interpret the law - quite beyond the influence of the Government. Why is this proposal put in the' clause? We have nothing to do at present with what happens in connexion with the Department's efforts to get the electors to enroll. Weshall have passed beyond that stage when this clause becomes operative. It only becomes operative when a case has got into Court. The provision commences with the words, " In any prosecution in any Court of summary jurisdiction." When the provision comes into operation a prosecution may be launched. No longer can the Government or the officials of the Department do all the things that have been spoken of - issue millions of regulations, and so on. That has all passed when the case comes before the Court. By what reasoning can the Government justify the fact that they propose to exempt the officials of the Department, when a. case has got into Court, from the obligation that is laid upon every other citizen who makes a charge? In connexion with any other matter any person who makes a charge is called upon to prove it, but under the clause the high and mighty officials of the Department will not have to do so.

Senator Lynch - If you make a charge of burglary you have to prove it.

Senator MILLEN - A man who makes any other charge is called upon to prove it. Why should the officers of the Department be relieved of an obligation which is placed on every other citizen who makes a charge?

Senator Findley - They are not relieved of that obligation. They make a charge, and the person charged can disprove it.

Senator MILLEN - Take this supposititious case. I affirm that Senator Findley was drunk yesterday. Now I ask Senator Findley ' to disprove that charge.

Senator Findley - The Department will affirm that a certain person ought to be on the roll, and that that person is not on the roll'.

Senator MILLEN - The provision does not only apply to that matter. It applies to any regulation that may be made. A departmental officer might bring the honorable senator before the Court, and say, " Senator Findley 's name is not on the roll. That is my charge, and I have summoned him here to answer it."

Senator Keating - He need not even produce the roll.

Senator MILLEN - He should have to produce the roll in Court to show that Senator Findley's name is not on it, and should also have to prove that Senator Findley's name ought to be there.

Senator Findley - Would any officer be so foolish as to charge a man with an offence unless he could prove it?

Senator MILLEN - Let him prove it, then. That is all we ask. The proposal of the Government is to make the officer, not merely the accuser, but the judge, because the Minister says that if the officer likes to think an offence has been committed, he is to determine that it has been committed. He should go before the Court and state the facts on which his charge is grounded, and it should be for the magistrate to say whether an offence has been committed. Let us take that section of the community which my friends opposite claim particularly to represent - the working classes. Take the navvies employed on railway construction in New South Wales, or other States, who are moving on all the time as the railway' line is constructed.

Senator McGregor - The very fact that we are here shows that the people who move about are very particular about being on the roll.

Senator MILLEN - I know the honorable senator will turn any matter into a joke if he can do so. Do honorable senators assent to the proposition that, because an official of the Department makes an accusation, the guilt of the person whom he accuses is proved?

Senator Findley - " In the absenceof proof to the contrary." Why does the honorable senator leave that out?

Senator MILLEN - Is it necessary to read the whole of the clause every time? As Senator Keating has pointed out, in the absence of the person charged, on the mere averment of a departmental officer that a regulation had been broken, the Court would have no option but to impose a fine.. Take the case of men who move about from one place to another.

Senator McGregor - Don't talk about the men moving about. They know what they are doing. The other day you blamed them for subscribing to The Worker.

Senator MILLEN - I did not blame them at all for subscribing to The Worker. I said it was a piece of hypocrisy for those subscribing to whimper and cry out when they thought a few pounds would be going to the independent press. I make a final appeal to honorable senators on the other side to consider what they are going to do. Suppose a Government consisting of the members of the party to which I belong proposed that, if any officer of the Department chose to make an accusation against any elector for a breach of the regulations - we have not seen the regulations yet - the charge should be held to be proved until the person charged went to the trouble and expense of disproving it. Honorable senators opposite would say that such a proposition was a reversion to the methods of barbarism, and so it is. It is surprising to me that such a proposition has come from this Government; and I would be more surprised if I did not believe in my heart that it is not the Government which is responsible for the authorship of the provision, but the officers of the Department. There is a desire on the part of those officials to constitute themselves a sacred caste, and to have it laid down that once they have made a charge it is to be taken as proved. They are not to be reduced to the level of ordinary citizens, and to have to accept the obligation that is cast upon me, and upon other citizens, of having to prove any charge we make. The mere averment of an official of the Department is to prove the case unless the person who is summoned disproves it. The person who is summoned may be absent. If honorable senators opposite were to apply that principle to any other law, they would see at once that the thing is absolutely indefensible. Seeing that the provisions of the Bill will not in any sense be weakened by the proposal I have submitted, I ask them to seriously consider whether they will pass the proposed new section or not.

Senator Keating - The only case where such a provision is justifiable is in cases where the Department sends out notices to people, whose names are on the rolls, that their names will be removed unless they object, because they are then believed to be dead.

Senator MILLEN - No one should die in Australia without an official certificate.

Senator Findley - A lot of people died politically on 13th April,

Senator MILLEN - And a lot of them were revived politically on 26th April. The honorable senator, by his interjection, may seek to obscure the issue; but there is no party question involved in this. Senator Russell has made the statement - I do not know whether it is correct or not - that the majority of the officers of the Department are favorable to the views of honorable senators on this side of the chamber. If that be so, honorable senators opposite must see that, if this clause is passed and is put in operation, they and their friends will suffer more than the friends and supporters of honorable senators on this side. I rest my objection to the provision on this single question : Ought we to relieve an officer of the Department from the obligation which is placed upon every other citizen of proving any charge which he makes ?

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