Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 15 August 1912

Senator McGREGOR (South Australia) (Vice President of the Executive Council) . - We have already, in a previous clause, agreed to a penalty of£500.

Senator Millen - I have explained that I had overlooked that.

Senator McGREGOR - I know that the honorable senator mentioned that, but it is there anyhow. What I do not like is that Senator Millen, and other honorable senators opposite, should be continually talking of these maximum penalties as if the Court had no option but to impose them. Senator Millen knows as well as any one else that the Court will be able to inflict a penalty which, in its judgment, will be adequate to meet the offence. The penalty imposed might be £1, £10, or £20, and under the Bill up to . £500 if, in the opinion of the Court, such a penalty should be imposed. What difference would it make if the maximum penalty were£300 rather than £500 in the case of certain persons who may offend against the provisions of this Bill? A penalty of £20 might be much more severe upon one culprit than a penalty of . £500 on another. The Court must take into consideration the severity of the penalty upon the culprit.

Senator Millen - Is the payment to be adjusted according to his capacity to pay?

Senator McGREGOR - No ; but his capacity to pay would qualify the penalty.

Senator Millen - Which is the same thing.

Senator McGREGOR - We do not desire that the Court should be so hampered that it must limit the penalty when it would know that a fine of£300 would be of no more consequence to one offender than a fine of 5s. to another. Honorable senators opposite have shown their desire to be fair to trusts and monopolies, such as the Colonial Sugar Refining Company, but we know that institutions of that kind would be prepared to pay large sums of money to avoid answering some questions which they might be asked. It is in order that the Court may have the necessary latitude to impose a penalty to meet the offence that a maximum penalty of £500 is proposed. It is proposed later in the Bill that these penalties may be repeated, and it does not matter how wealthy a corporation may be, before the Court is finished with them they will be glad to answer all the legitimate questions they may be asked, whether their answers reveal the way in which they have been treating the public or not. I see no difference, in the circumstances, between the penalty proposed in the clause and that suggested by the amendment.

Senator Sir JOSIAHSYMON (South. Australia) [3.10]. - Some remarks which have fallen from the Vice-President of the Executive Council urge me to repeat what I said yesterday. I said that I was not here as an advocate of the Colonial Sugar Refining Company in any sense, and that my view of the matter was entirely apart, as I had hoped that the view of the Government would be, from any consideration of the Colonial Sugar Refining Company or any other body against whom proceedings were intended to be directed with the object of destroying a supposed combine or monopoly.

Senator McGregor - There is no intention to destroy any body.

Senator Sir JOSIAH SYMON - I also took very good care to make it clear that I was just as anxious as the Government were, at the proper time, and under proper circumstances - apart from any feeling of irritation created by the existing circumstances - that there should be more ample powers of examination for the ascertainment of facts by means of Royal Commissions in connexion with monopolies or anything else. When I heard my honorable friend say a few moments ago that honorablesenators on this side, in their fairness towards the-. Sugar Company, took the views which they had been expressing, it occurred to me that the converse of that is true, and that he states his views in his unfairness towards that company.

Senator McGregor - No, in my fairness to the general public.

Senator Sir JOSIAH SYMON - I think it would be a good thing if my honorable friend would abstain from these taunts when he is arguing a simple question. I do not think it matters two pins whether the' maximum fine is made £200 or ,£300 or £1,000. In that respect, and to that extent, I rather agree with my honorable friend. The introduction of this enormously increased penalty - ten times the amount provided in the Act - is a pointed indication that this legislation is specially directed at the pockets of a wealthy corporation. From that point of view it amounts to an indication to the magistrates, and is an inducement to them to discriminate, and to make this a kind of class punishment, which it ought not to be.

Senator McGregor - They will temper the wind to the shorn lamb.

Senator Sir JOSIAHSYMON.Whether they do or not my honorable friend indicates to the magistrates that the penalty ought to go up, within the limit provided in the Act, not according to the character or seriousness of the offence, but according to the depth of the pocket of the offender. The Government have entirely misunderstood the situation. I defy any one to name a case in which the mere refusal of a witness to answer a question, because it is not relevant to the inquiry, justifies a penalty of even £5. The Commission say to the witness: " This is a question which we regard as relevant, ' ' and the witness says : " I do not take that view, and with great respect, I decline to answer the question."

Senator Givens - Whom would you have to be the judges?

Senator Sir JOSIAH SYMON - The Bill has withdrawn that power from the Commission ; they cannot impose a penalty. That is the extraordinary position. If the Commission should finally decide that the question is relevant, and punish the man, they may say, as a Judge would say : "You will be imprisoned till the rising of the Court, or till you answer the question."

Senator McGregor - Only yesterday you were grumbling because, the Court did get some little power.

Senator Sir JOSIAH SYMON - I do not think that my honorable friend has attentively read the Bill. In the case I have mentioned, why should the witness be fined more than a nominal sum to indicate that he is wrong? The Government have made this matter ridiculous, because if the witness is recalcitrant, and will not give the information, under a subsequent clause the Commission can impose a penalty, with a minimum limit of £500. The first offence is a venial thing. The Commission cannot order the witness to answer the question, but have to lay an information before the High Court, or a Court of summary jurisdiction in order to have the matter determined. But if there is a persistent refusal to answer the question, or some suggested defiance of the Commission, that is an offence for which they can punish him in proportion to the wickedness of his refusal.

Senator Millen - There seems to bs an assumption on the other side that the payment of this fine will release the witness from the necessity of answering the question.

Senator Sir JOSIAH SYMON - It will not. Really, my honorable friends opposite are behaving like a lot of children in a nursery when they try to legislate about things which they do not understand.

Senator Givens - Are you in favour of the clause under which, for a persistent refusal, a witness can be fined from ,£500 to £l>°o°?

Senator Sir JOSIAH SYMON - I do not think that a fine of ,£500 would make any difference, but it is consistent - that is to say, it is a fair thing on a second refusal that the witness should be severely punished. I admit that as a principle, quite irrespective of his pecuniary resources. I certainly am not going to force any amendments upon the Government. If any mischief has arisen which it is proper should be remedied, it is in the proceedings which were necessary under the provision for a £$0 fine in the Act to determine whether or not the witness had a reasonable excuse for not attending. The proceedings appear to have been dragged out for a very long time, and, of course, in the meantime the work of the Commission has been suspended. But the multiplying of the penalty by ten times will not get rid of that mischief. If the witness does not answer the questions, the infliction of the penalty will not help the Commission, because they will have to take proceedings for an offence under the Act, just as they have to do now under the provision for a £50 fine, before either magistrates or the High Court, and there may be just the same scandal, if scandal it is, in prolonging the inquiries and hanging up the Commission then as now. The High Court is greatly occupied with other things, and possibly might not be able to entertain a case. It would be ridiculous nonsense to take a matter of this kind in the first instance before the highest tribunal in the land. It ought to be dealt with by the magistrates, and if a case is taken before them, what possible guarantee does' the increase of -the penalty give that the proceedings will be expedited by one hour? From these two points of view, and not with the view of lessening the power of the Government to get the information, I suggest that my honorable friend should reconsider the whole thing.

Suggest corrections