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Friday, 3 November 1911

Senator PEARCE (Western Australia) (Minister of Defence) . - There are two very simple propositions before the Committee. After long deliberation, the Committee has affirmed the principle of compulsory enrolment. We are now called upon to deliberate as to how that principle is to be given effect. Much of what Senator St. Ledger has said about compulsory enrolment has nothing whatever to do with the matter now under discussion. We are faced now with the question of how we are to carry out a principle we have affirmed, and the Government, with the advice of the Crown Law officers, say that this is the only practical way in which we can enforce compulsory enrolment.

Senator Keating - Do I understand that that is the advice of the AttorneyGeneral's Department?

Senator PEARCE - Yes.

Senator Keating - Is it a legal question or the advice of the Crown Law Department?

Senator PEARCE - The question arises as to how we are to enforce the principle of compulsory enrolment, and the Crown Law Officers say that this is the only practical way in which to do it. The proposed new section 6ie reads -

In any prosecution in any Court of summary jurisdiction in respect of any contravention of any of the regulations relating to compulsory enrolment, instituted by any officer or by any person acting under the direction of an officer, the averments of the prosecutor contained in the information or complaint shall be deemed to be proved in the absence of evidence to the con.trary

What is the alternative ? It is that the Department shall prove that the person charged is not entitled to be enrolled, and is not enrolled. Let honorable senators consider what a task the Department would have to take upon itself in order to prove these two negatives. It would, first of all, have to prove that the elector was over twenty-one years of age, and it would be necessary to hunt up birth certificates to do so. It would have to prove that he had been in the Commonwealth for a certain length of time, and then that he was not enrolled for any one of the seventy-five electorates throughout Australia. Before honorable senators allow themselves to be carried away by the sentimental objection to this provision, they should consider the difficulty which would be placed in the way of the Department if, by the adoption of the only alternative for this proposal, it was called upon to prove a negative. The opposition to this proposed new section is really opposition to compulsory enrolment. If there is a general desire for compulsory enrolment, the Bill provides the only practical way of giving effect to it. While the officials of the Department would, if the ordinary procedure were followed, be called upon to prove a negative, the individual charged under the proposed new section could, at any time and with the greatest possible ease, establish the affirmative. He would know whether he was enrolled or not. I ask honorable senators to bear in mind, also, that the averments of the prosecutor are to be deemed to be proved only in the absence of evidence to the contrary, and if a person charged under this proposed section is prepared to appear before a Court, and say that at a certain time and place he registered his name as an elector, the Department would then be called upon to prove its case, and that he had not registered his name at the time and place mentioned. It is clear that if a frivolous prosecution were instituted under this proposed new system, and the Department could not refute the evidence of a man brought before the Court, it would have to pay the costs of the prosecution.

Senator Millen - Where are costs given against the Crown?

Senator PEARCE - In plenty of cases in which it is considered that the Crown has brought a frivolous charge before the Court. Of course, my honorable friends opposite do not want compulsory enrolment, and, therefore, do not desire the adoption of a provision by which it could be enforced. I quite understand their position. I am not appealing to them. I do not expect them to vote for any proposal which would give effect to a principle in which they do not believe. But I do appeal to honorable senators who desire to see the system of compulsory enrolment made effective. Unless they are prepared to give the Government the power asked for in the proposed new section, it cannot be made effective. But for such a provision the Department would be placed in an impossible position, and the Bill, so far as it makes provision for compulsory enrolment, would be made unworkable.

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