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Wednesday, 20 August 1980
Page: 531


Dr CASS (Maribyrnong) - by leave- I move:

(   1 ) Clause 6, page 5, sub-clause (S), lines 1 5 and 1 6, omit 'if the person charged establishes to the satisfaction of the Court'.

(2) Clause 6, page S, sub-clause (7), line 24, omit 'if the person establishes to the satisfaction of the Court'.

(3) Clause 6, page S, sub-clause (8), line 3 1 , omit 'if the person establishes to the satisfaction of the Court'.

(4) Clause 12, page 13, lines 41-43, and page 14, lines 1-6, omit sub-clause (7).

(5) Clause 12, page 14, omit sub-clause (8).

(6) Page 1 9, after clause 2 1 , insert the following new clause:

Requests etc. served on non-English speaking person "21a. Requests, instructions or notices served on a non-English speaking person in accordance with section 16, 17, 18, 19 or 21 shall be in the English language and in a language fully understood by that non-English speaking person."

(7) Clause 23, page 1 9, omit the clause.

The first three amendments relate to the question of onus of proof. By omitting the words 'if the person charged establishes to the satisfaction of the Court', this does not in any way diminish, in our view, the prospects of the prosecution achieving its objective in nailing somebody who has ostensibly broken the law. But, in our view, it provides for the Department to prove the case rather than the poor blighter who has been charged having to prove his innocence. Our practice surely is that he is assumed to be innocent until he is proved guilty. The onus ought to be on the State, in this case, to prove the person is guilty. It should not be required of a person that he establishes to the satisfaction of the court that he is innocent. The assumption is that before he does that, he is guilty. That is the reason for the Opposition's amendments to the three sub-clauses.

In relation to clause 12 on page 13 of the Bill, the Opposition is disturbed about the implied powers given to the authority who is charged with assessing whether or not something has gone wrong or whether or not there is a claim that the individual has broken the law by bringing in illegal immigrants or whatever else he may be involved in. Clause 12 (7) states:

That is a person who has to look into the matter -

(a)   shall make a thorough investigation of the matter which he is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence, but may inform himself of any relevant matter in such manner as he thinks fit;

I ask honourable members to bear in mind that if the person being investigated is found guilty, he faces enormous penalties. In view of that, it strikes us that that person should at least be given the opportunity to feel that he is being investigated with the normal procedures of a court of law being followed. It seems far too free and easy to allow an investigation without an investigating agent being required to have any particular regard to legal forms or to be bound by rules of evidence. Surely we require these things normally because to go to gaol and to be penalised in a court is a very serious business. We want to make sure that there is no mistake in the assessment and that there is no injustice taking place.

One of the devices we have come to accept in our legal system to try to ensure that justice not only is done but also is seen to be done is to provide certain mechanisms whereby people can seek to defend themselves. People are not necessarily required to incriminate themselves by answering questions. If the prospect is that by answering a question they are likely to go to gaol, they are entitled to have legal advice and all of the rigmarole that goes with a court of law and not just be expected, without any concern for the rules of evidence, to own up without the protection of legal forms. So the Opposition fairly strongly pushes that amendment mainly to remove those two subclauses - sub-clauses 7 and 8.

I do not wish to linger on this matter, but I must point out that many of the people being brought here do not speak or understand English and probably most of the people involved in bringing these refugees here do not understand English. Therefore, we feel it is not unreasonable to expect that instructions, notices and requests made to a non-English speaking person be made, of course in English, but also in a language which that person understands. For instance, to ask someone who does not understand simply to step aside could lead to a very unpleasant situation if that person feels he is being pushed around. If, when that person is asked to step aside, he tries to protect himself, this can be interpreted as obstructing the law. This can give rise to very unfortunate circumstances. This amendment does not change the meaning of this Bill. It does not diminish in any way what the Bill seeks to achieve. It simply acknowledges that this is a multicultural society and that we are seeking to provide for the needs of people who do not speak English. In some way we should be able to specify this in the legislation.

Finally, clause 23 refers to action not being taken until the Attorney-General has approved, for instance, of action being taken in the case of a proposed action against someone who has claimed to have brought in refugees, unauthorised persons or proscribed people. It is suggested that nothing should be done until the Attorney-General has reviewed the matter. The legislation should provide quite clearly the guidelines of what is or is not breaking the law. If the investigating officer considers that the law is broken surely he should pursue the matter in the court. We do not quite understand why it is necessary to have the Attorney-General look at it and check up. Depending on the mood of the Attorney-General, some people may be lucky and be let off and others may find that whatever the circumstances, they are for it anyway. It should not be left to that sort of an arbitrary judgment. The procedure ought to be clearly and explicitly placed in the legislation and the actions taken responsibly by the officer who believes that something has happened and that a law has been broken. In that belief he is prepared to take it to the court and present the case. That, in our view, is what should happen. It should not be left to the AttorneyGeneral to make a final decision.







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