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Friday, 10 November 1905

Senator PULSFORD (New South Wales) - I ask honorable senators to negative this clause. They will take note of the fact that, by virtue of it, this Bill is to become a portion of the Customs Act of 1901 .

Senator Playford - That is done purposely.

Senator PULSFORD - I am aware of that, and I desire to show the object for which it is done, and the danger involved. By having the two measures" read together in the way proposed the whole of the provisions of this Bill will be brought within the penal sections of the Customs Act. Section 243 of the Customs Act provides. -

The minimum pecuniary penalty for any offence against this Act shall be one-twentieth of the maximum which is prescribed in pounds.

That means that in this Bill where the maximum penalty prescribed is£100 for any offence, however much a magistrate hearing a case may desire to let the defendant off with a nominal fine of, perhaps,1s., the clause now under consideration will prevent the imposition of a less fine than£5, and if the defendant is unable to pay the£5 he can be sent to gaol for fourteen days. Section 258 of the Customs Act provides -

Where any pecuniary penalty is adjudged to be paid by any convicted person the Court -

1.   may commit the offender to gaol until the penalty is paid ; or

2.   may release the offender upon his giving security for the payment of the penalty; or

3.   may exercise for the enforcement and recovery of the penalty any power of distress or execution possessed by the Court for the enforcement and recovery of penalties in any other case.

Here, again, we have a very severe penal section applied to this Bill by the operation of this clause. Section 260 of the Customs Act provides that -

The gaoler of any gaol to which any person has been committed for non-payment of any penalty shall discharge such person - (i.) on payment to him of the penalty adjudged; (ii.) on a certificate by the Collector that the penalty has been paid or realized ; (iii.) if the penalty adjudged to be paid is not paid or realized according to the following table.

Then follows a table showing the length of time during which the defendant may be imprisoned according to the amount of penalty unpaid, and it will be found that the time ranges from seven days to one year. I need not tell honorable senators that the sections of the Customs Act are very severe, nor need I remind them that various cases of most severe hardship and of undoubted injustice have occurred in connexion with the administration of that Act. I have in mind a case in which the cook of a foreign ship sold a cask of ship's waste fat, generally known as " slush," which was bought for the purpose of being used in the manufacture of soap. Both buyer and seller were brought before a magistrate in Newcastle, and fined. The cook was. fined £5, which the captain ofhis vessel paid, and he was able to return to his ship, but the man who bought the " slush," being a poor huckster,' was unable to pay his fine of £5, and went to gaol, and he was kept there for one month.

Senator Lt Col Gould - Shameful !

Senator PULSFORD -" Shameful " is a weak term to apply to it. Under this clause a man guilty of some merely technical offence against the provisions of this so-called Commerce Bill may be sent to gaol. It willbe admitted that I have urged exceedingly strong reasons why the Committee should negative this clause. There is anotherreason to which attention might be directed. . There is a possibility that the passing of this clause in the Bill will render it invalid. Honorable senators will be aware that the Customs Act is incorporated with the Tariff Act. By the incorporation of this Bill with the Customs Act, which is also incorporated with the Tariff Act, we may bring about a state of things which might justify the High Court in deciding that this Commerce Bill does not comply with the provision of the Constitution, which requires that a measure of taxation shall include no other matter. If we tack this Bill on to the Tariff Act, as the result of its incorporation with the Customs Act, we shall probably have done thatwhich, according to the Constitution, will invalidate the measure. Ministers might do well to consider that point. It is not one which greatly concerns me, because if this Bill were declared by the High Court to be invalid, I should not feel disposed to weep very much over it. I am, however, inclined to grieve over the prospect of the authorities having the power to bring the severe penal sections of the Customs Act into operation for the punishment of people who may make some slight technical error in the marking or shipping of goods. I have every confidence in asking every honorable senator who is prepared to consider the just claims of the people to assist me in negativing this clause.

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