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Tuesday, 23 May 1972
Page: 1910

Senator CAVANAGH (South Australia) - We accept the fact that the Government cannot accept the amendment, and because we disagree we will have to vote on it. But I do not want the Minister to accept that he has explained the position. It was the most ridiculous explanation I have heard. He said in effect: 'We have always had this provision in other legislation imposing levies. Because we went wrong in relation to imposing one levy previously we will continue to go wrong'. The Minister has never tried to show that there is some justification for this averment clause. The only justification he has given is that the Government has the big responsibility of having the oversight of all milk sales transactions, and of knowing when a person is not paying the levy on those sales. I only hope that the Minister has knowledge of the selling activities of a producer before proceedings are instituted. The Minister is saying: 'Because we know nothing about it, because we have no proof, we act on suspicion. Bill Brown, a dairy farmer, has never done an honest thing in his life and it would be out of character for him to pay the levy, so lel us charge him with not paying the levy and let him prove that he has paid it'.

The only reason that the Minister has given for this averment clause is that he does not have oversight of these transactions. He says in effect: 'We are not looking into these transactions so, without knowledge of whether the law is being broken' - this is on the Minister's own admission - 'we will accuse the person and let him prove his innocence of the charge'. The Minister then went on to point out - I thought everyone would have known this - that the clause relates to an averment of evidence, not an averment of guilt. I understood him to take up the position that because these things were stated in the summons the person charged was guilty and that the judge's duty then was only to inflict the penalty without considering whether the person charged could prove his innocence. Of course, the averment can relate only to evidence but the averment constitutes evidence. That is the whole point of the clause. Sub-clause (2.) reads in part: an averment or statement in the complaint, claim or declaration of the plaintiff is evidence of the matter so averred or stated.

If the prosecutor avers that someone sold 1,000 gallons of milk last month and did not pay the levy, that evidence is proof until the defendant exonerates himself only by proving otherwise. If he owns a cow or produces any milk this is evidence on which a conviction can be recorded against him and a penalty imposed. This is wrong. I am informed that the Opposition has opposed similar provisions in all other levy collection Bills. The Government will not budge on the question. I cannot accept that additional work is involved for the Government, insofar as suspicion of guilt must exist before a prosecution is instituted. Therefore all I can say is that we will oppose this provision.

Senator Webster - I have a question, before you resume your seat. While the Opposition has opposed this type of provision over a period, can you cite any instance of a farmer complaining of it or of unjust treatment, during all these years?

Senator CAVANAGH - Senator Webster is in close consultation with the farmers. I have never spoken to a farmer who has been prosecuted on this score. It would surprise me if there had been any successful prosecutions in which the defendant had not protested. I think one would find that they did exist. Apparently, Senator Webster does not recognise the possibility that the provision could be used capriciously against someone. Why include it in the legislation when, as he says, it is not needed because no farmer has ever complained? If one has been prosecuted, it is suggested, he has accepted his guilt. It was guilt that the prosecutor could have proved and which is being proved in every other type of prosecution. It appears that this provision is used more frequently in the collection of levies. As the honourable senator has said, it would appear that it is never abused, but why include it in the legislation if there is no need for it? There is always a danger and I think that anybody who is protecting civil liberties must be prepared to see that we do not write into legislation any provision that could cause injustice or harm to an individual. Irrespective of whether there have been complaints, the provision should be omitted. The responsibility should be on the Crown to prove its case.

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