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Wednesday, 6 December 1911

Senator FRASER (Victoria) .- -If I had my way, I should throw responsibility for his act upon any officer who by gross negligence causes the destruction of a ship, and the loss of human lives. The officer should, in such a. case, be responsible.

Senator Sir Josiah Symon - So he would be. He would be liable to be criminally punished if he were guilty of gross and' criminal negligence resulting in the loss of life and property. If by negligence he omitted to have his light shining, and a ship were 'destroyed and lives lost as the result, he would be liable to prosecution.. The clause debars only civil prosecutions. It does not apply to criminal prosecutions at all.

Senator FRASER - Then I give way to the opinion of the honorable senator.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [3.41].- Senator Symon has said that if I propose the omission of the words, " the Commonwealth or the Minister," he will be disposed to vote for such an amendment. I am not prepared to go so far as to say that the Commonwealth or the Minister should bemade liable in all cases. The Commonwealth might be mulcted in damages because of the negligence of one of its officers, who, as Senator Symon pointed out, might neglect to light his lamps. This only brings me back to my original proposition. Why should an officer who neglects to light his lamp, and thereby causes a wreck to take place and a great loss of life and property, be protected by this Parliament from the consequences of his neglect. He should be made to realize that under such circumstances Parliament would not protect him, but that he would, have to put up with the consequences.

Senator Fraser - I think that is right.

Senator Guthrie - Why not apply thesame principle to all public servants, and, for instance, make the Crown Solicitor liable if he gives bad advice?

Senator Lt Colonel Sir ALBERT GOULD .- If the Crown Solicitor occasionally makes a mistake, it is probably due to the fact that a case has not beenproperly put before him. I submitted my amendment in order to get an expression of opinion from the Committee, and with a view, possibly, to submitting another amendment later. I think it would probably be better to leave out the words "or any officer of the Commonwealth." The clause would then read -

An action or other civil proceedings shall not be maintainable against the Commonwealth or the Minister by reason of any act, default, error or omission.

That would leave it perfectly open to any person to take proceedings against any individual guilty of culpable negligence, and would tend to make the officers of the Department much more careful than they mightotherwise be. It may be said that it is sufficient that an officer guilty of negligence is liable to a criminal prosecution ; but my reply to that is that he may be guilty of" a certain amount of negligence resulting inserious loss of life and property, but which might not be of such a character as would render him liable to be punished criminally. Why should a man guilty of negligence, though it may not be of criminal negligence, be entitled to the protection of an Act of Parliament? If he undertakes certain duties, he should be responsible for any act of misfeasance or malfeasance which he may commit, irrespective of whether he is rich or poor. I ask the leave of the Committee to withdraw my amendment, with the object of moving that the words " or any officer of the Commonwealth ' ' be left out. It will then make a clear cut issue on which the Committee can give a decision.

Amendment, by leave, withdrawn.

Amendment (by Senator Lt. -Colonel Sir Albert Gould) proposed -

That the following words be added, " and that new clause 8b be amended by leaving out the words ' or any officer of the Commonwealth.' "

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