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Thursday, 15 August 1974
Page: 983


Senator GREENWOOD (Victoria) - The next amendment is also to clause 76 (f). I move:

Leave out 'is, if the Court so orders, liable to pay', substitute 'is, upon proof of the act or omission concerned beyond reasonable doubt, liable, if the Court so orders, to pay'.

The Opposition regards this as a significant amendment to which we would like the Senate to give its closest attention. I have indicated that clause 76 imposes a pecuniary penalty of $250,000 upon persons in respect of matters in regard to which those persons may be brought before the court. So that if a person contravenes a provision of Part IV, or attempts to contravene such a provision, or is in any way involved in a contravention, that person may be liable to a penalty of $50,000, and in the case of a company the penalty may be as much as $250,000. Clause 77 indicates that when the proceeding is instituted in the court by the Attorney-General or the Trade Practices Commission, he or it may do so by way of civil action for the recovery on behalf of Australia of the pecuniary penalty. The Opposition views this as the imposition of a fine in the way in which any person who is charged with an offence is liable to pay a fine if he is convicted.

The language in the Bill is not the usual language which is used when people are charged with an offence. But no matter what words are used the effect is precisely the same. If a person contravenes a provision of this Act then he is liable to pay a penalty. In the case of an individual the penalty is $50,000 and in the case of a company the penalty or the fine is $250,000. There is no escaping the fact that it is the same type of situation, with the same deterrent, as one finds over the whole broad spectrum of criminal law. I believe that the standard of proof which we have long accepted in our community as the standard of proof for conviction of a person ought to apply in this area as it does in other areas. A person may be charged with a parking offence. That is probably the most minimal type of offence for which our law provides today. I hope I am not overstating the position. But even if a person who is charged with a parking offence contests the facts he knows that he is presumed innocent until he is proved guilty, and for him to be proved guilty of that offence requires that every ingredient of the facts necessary for his conviction must be established to the satisfaction of the tribunal beyond a reasonable doubt. The words beyond a reasonable doubt' are hallowed words and they constitute the bulwark of our system of criminal justice. Anyone accused of a crime or charged with an offence is presumed to be innocent until it is established that he is guilty in accordance with that standard of proof. I hope that we will not see any inroads made into that standard, into that concept.

We believe that this provision which we are now considering makes an inroad into that concept. We do not believe that simply because the character of the legislation is trade practices legislation it should be easier for individuals or for companies to be found guilty of an offence.

We believe that if an offence is committed against this legislation, a contravention of a provision of Part IV, then that offence is precisely the same as an offence against or a contravention against any other provision of any other legislation for which this standard of a reasonable doubt applies. Therefore what we propose to do by way of amendment is to leave out the words which appear in the clause 'is, if the Court so orders, liable to pay', and to insert the words 'is, upon proof of the act or omission concerned, beyond reasonable doubt, liable, if the court so orders, to pay'.

The amendment substitutes for the standard of proof which applies in civil actions the standard of proof which applies in criminal actions. We believe that is appropriate to the type of contravention with which we are concerned. If citizens are engaged in litigation which involves establishing to the satisfaction of the court certain facts before the plaintiff can win his case against the person he is suing, the court has to be satisfied whether, on the balance of probabilities, the facts are as the plaintiff alleges them to be. It is a standard of comfortable satisfaction that what you are doing and what you are finding is right. It does not require the standard which is involved in the prosecution of criminal offences of being satisfied beyond any reasonable doubt. Why should that earlier standard be the standard which applies when an individual is liable to pay a penalty of $50,000 or when a company is liable to pay a penalty of $250,000. It is the type of financial exaction, the securing of proper conduct by the imposition of a deterrent, which has all the earmarks of the criminal law. It ought not to be supposed that there is no distinction between these two standards of proof.

The Attorney-General will be familiar with the case of Rejfek and McElroy which is a decision within the last 10 years in the High Court of Australia. It was a decision- the reference is in the Argus Law Reports of 1966, page 270- in which the full court of the High Court of Australia consisting of the Chief Justice Sir Garfield Barwick, Mr Justice Kitto, Mr Justice Taylor, Mr Justice Menzies and Mr Justice Windeyer delivered a unanimous judgment. It was a statement of action in which 2 citizens were involved. One was making a claim for monetary compensation for damages for fraud. The question was whether the Supreme Court of Queensland had applied the right test in this civil action. The Queensland judge had applied the standard of the criminal courts and said that because the plaintiff was alleging fraud against his neighbour that fraud had to be established beyond a reasonable doubt. The High Court said that in a civil action that standard was not the applicable standard. I shall read the headnote in the law report to make one or two points. The headnote reads:

In a civil proceeding Tacts which amount to the commission of a crime have only to be established to the reasonable satisfaction by the tribunal of fact, a satisfaction which may be attained on a consideration of the probabilities.

That, of course, states the well known proposition with which, I think, all lawyers would be in concurrence.The court then said- I again read from the headnote:

The degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not, with respect to any matter in issue in such a proceeding; to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.

We believe that it is unreal to view the type and substance and the heaviness of the penalty which is to be exacted from a person who contravenes this legislation as not arising from a proceeding which is essentially penal or criminal in nature. The words which have been used in the clause endeavour to state that such a proceeding would not be a criminal proceeding. But I say that that is what is covered by the ordinary rendering of the word 'subterfuge'. We believe that the appropriate standard of proof is the criminal standard and that individuals and companies ought not to be taken apart from the ordinary range of cases under this legislation and made liable to be fined these large amounts on anything less than the criminal standard of proof. Accordingly, we have moved this amendment.







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