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Tuesday, 29 May 1928

Mr LATHAM (Kooyong) (AttorneyGeneral) . - Under sections 6 and 6a offences were created and penalties fixed. Section 8 does not in. the early part of it - I am not now referring to the proposed new sub-sections 3 and 4 - impose a penalty. It is a purely evidentiary section. Sections 6 and 6a relate to persons doing something in the nature of a lockout or a strike, and under them penalties may be imposed upon organizations as well as upon persons for certain acts. Section 8 provides that an organization which defies the law or incites the commission of certain acts in the nature of a lockout or a strike shall itself be deemed to be guilty of an offence the penalties for which are found in section 6 and 6a. Proposed section 6b makes provision for the mitigation of penalties when an organization has been found guilty. If some members of a committee of management or some of its officers have been trying /to prevent the commission of the offence, that action is to be taken into account in fixing the penalty. If the secretary of an organization has full power to perform the act he has performed, and the court finds that that act is. the commission of an offence, an organization may be found responsible for the action of its secretary. It may appear, however, that a number of the members of the committee of management, considering that the secretary was wrong, may have tried to prevent the commission of the act for which the organization had been convicted. In such a case the organization should be convicted, because the authorized officer had acted contrary to the law ; but this clause provides that in such a case where there is no doubt that some members of the committee of management tried to prevent it, that fact shall be considered in fixing the penalty.

Mr SCULLIN - Would this clause have been inserted if clause 8 were not embodied in the bill?

Mr LATHAM - Yes. It must be remembered in dealing with an organization of this class that an organization is no more real than a company, but is equally so. The liability of an organization as a corporation depends upon the acts of the persons who are in a position to act with real or apparent authority on its behalf. Outsiders are entitled to judge a corporation by the apparent authority which it confers upon its agents in accordance with a well-known principle of law. Had clause 8 not been in the bill it would still have been possible to take proceedings against an organization for an offence under earlier provisions. "When a prosecutor contends that an organization has been guilty of an offence, it is necessary to ascertain the facts, and who committed the acts complained of. .Some individual would have to be discovered upon whom to fasten responsibility, and if he were proved guilty, the question would arise as to the nature of his authority. I point out to honorable members that the latter part of section 8, which appears in italics in the memorandum, was only inserted in 1920. Section 6a also was only inserted in that year. I assure honorable members that their acceptance of this clause will not in any way compromise them in relation to clause 8, for it would be quite a proper provision irrespective of what is contained in clause 8. I therefore ask the committee to equip the court with power, when an organization is convicted of an offence committed by its officers or committee of management, to take into account the endeavour of other officers or members to prevent the committal of the offence.

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