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Thursday, 15 August 1912


Senator GIVENS (Queensland) - - My honorable friends opposite seem to be obsessed with the notion that this Bill is aimed at the rich men, and that we desire to impose ferocious penalties on them out of a spirit of revenge. The Bill doei not aim at anything of the kind, nor doe the provision which we are now discussing. The sole object of the measure is to make Royal Commissions effective, and to injure that the taxpayer shall get the information which is necessary whenever these Commissions are appointed. There is no question of ferocity or revenge at issue. Honorable senators are aware that Royal Commissions have continually been hampered owing to lack of sufficient power either to require the attendance of witnesses, or to compel them to answer questions. We have been told by honorable senators opposite that we wish to impose one penalty on the rich man and another on the poor man. Both Senators Millen and Clemons stressed that point.


Senator Clemons - Did not the honorable senator say so?


Senator GIVENS - I interjected whilst the honorable senator was speaking that it might be a greater penalty to exact 5s. from one man than it would be to take ^500 from another man. A fine of 55. might deprive the former of the necessaries of life, while a fine of ,£500 might not require a wealthy man to forego a single luxury of life. But if my honorable friends are distressed over that aspect of the matter there is a simple way out of the difficulty. Let us abolish the monetary penalty and substitute imprisonment for it.


Senator Millen - A rich man might be able to go to gaol for six months without the bread and butter of his family being interfered with, whereas the poor man could not do so.


Senator GIVENS - My honorable friend is very much concerned about, the poor man. but it is rather significant that his magnificent diatribes in this Chamber are always on behalf of the wealthy man. If we had in the Bill a penal clause, which imposed imprisonment in lieu of a monetary fine it could be applied all round. Would that be more acceptable to my honorable friends?


Senator Clemons - But it is proposed to punish a witness merely upon a question of opinion.


Senator GIVENS - We know that the wealthy person who comes before a Royal Commission usually has the benefit of the opinion of the most eminent counsel at his disposal. Even if counsel be not allowed to appear openly, he is usually at the witness's elbow all the time to prompt him. Although counsel were not allowed to appear officially before the Sugar Commission, we know perfectly well that they were constantly in evidence taking notes-


Senator Pearce - When the Tobacco Commission was sitting the Tobacco Trust" had their counsel present, and continually referred questions to them.


Senator GIVENS - That is so. So that ft is not a question - as Senator Clemons has argued - merely of opinion, because wealthy witnesses will probably have the most eminent legal advice beside them, all the time that they are giving evidence. If" they can afford to pay £500 for the services of counsel, surely they can afford to pay that amount if they refuse to answer a question which 'is put to them by whom ? Not by a partisan Commission, because we must presume that the Commissioners appointed will be impartial inquirers. I would point out to Senator Millen, who smiles derisively at my statement, that it will not be a prosecuting counsel who asks that question. It will be a member of an impartial Commission. The Commission should have no desire beyond getting at the actual truth. They do not want to enter upon a fishing inquiry all round the country, asking questions which have no bearing upon the subject-matter under investigation. Our experience of Royal Commissions in the past has been that witnesses have had ample consideration. The only Royal Commissioner whom I remember was violently accused by a certain section of the press of bullying and bouncing witnesses was Senator Clemons.


Senator Clemons - I can stand that.


Senator GIVENS - I-am not making the statement on my own account, but am repeating what was stated by certain newspapers.


Senator Clemons - Will the honorable senator allow me to say in answer that, while I was a member of the Commission referred to, I never found that we required more powers to get evidence out of witnesses.


Senator GIVENS - That argument has been replied to by Senator McGregor, who pointed out that witnesses before the Tariff Commission really had nothing to hide, but that their interest was to lay their cards on the table.


Senator Clemons - I dissent from that view entirely.


Senator GIVENS - In the case that we now have in mind, that of the Sugar Company - because it is useless to pretend that we have not that case in mind - there is a huge monopoly, whose whole interest it is to cover up its proceedings, to refuse to let the public have any inkling as to how its business is conducted, what its profits are, and the nature of its business methods. Unless we are able to devise means which will compel those people to let the light of day into their workings - to let the people- know what is a matter of vital concern to them, how these monopolists treat their customers, and how they treat the people who are producing and working for them - we shall never be able to get at the facts. This Bill is designed to put into the hands of any Commission which may be appointed to inquire into any matter of that kind, some surer means by which they will be able to compel the attendance of witnesses, and to compel the witnesses to disclose the facts within their knowledge. As to these so-called excessive penalties, I would remind Senator Clemons that every Judge has power to commit for contempt of Court any witness who refuses to answer relevant questions. Within my own recollection, several persons have been sent to gaol for no other offence than that, iri a case where they have been called as witnesses, they refused to answer questions. When imprisoned, they have had no redress whatever. In this instance, we are simply imposing a monetary penalty on a witness who refuses to answer questions put to him by an impartial Commission, which should have no desire to injure the witness, but merely to illicit the facts in the interest of the public. Who are to be supreme in this country? Is it to be the big combines, the people who control the Colonial Sugar Refining Company, or the Parliament of Australia? That is really the question. When a Royal Commission is appointed, the reason is, presumably, because it is desired to get certain facts regarding matters of public interest. We have the public interest on one side, and the interest of this monopoly on the other. The people must be paramount. We cannot allow a Commission appointed by the Government of this country to be flouted and turned into a laughing-stock, to have its hands tied, because of the lack of effective powers. The penalties are none too stringent. I would remind the Opposition that if any particular question is decided to be not relevant, the witness affected escapes. There is no punishment.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir AlbertGould. - There should be none then.


Senator GIVENS - I do not want a witness to be punished under such circumstances. He is only punished when he refuses to answer a relevant question, and deliberately flouts a Commission. A man who does that flouts the people whose representatives appointed the Commission, and ought to be punished. If honorable senators want the Bill to operate equally with the poor man as with the rich, let them propose a penal provision instead of a monetary penalty, .and I, for one, shall be inclined to support them.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD (New South Wales) [3-45]- - I think we are all agreed that if the Commonwealth Government appoints a Royal Commission, steps ought to be taken to make it effective. We ought to give it power to carry out the duties imposed upon it. But, at the same lime, I think that we are not assisting in the attainment of that end if we impose penalties that may fairly be looked upon as vindictive - penalties that may be inflicted to one extent on one man, but to a lesser extent on another man, who may have been guilty df the same offence.


Senator Givens - A fine of £500 would mean less to the honorable senator than £5 would to me.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - I doubt that very much; but, even if it were so, is that a reason why, if I refuse to answer a question, I should be fined ^500, whilst the honorable senator, for refusing to answer a precisely similar question, should be fined only £5 ?


Senator Clemons - Why should it cost Senator Givens ,£5 to hold a certain opinion, and Senator Gould ^500?


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - Exactly. The whole idea in imposing penalties is to have, such as may reasonably be expected to be effective for the purposes for which the penalties are imposed. If it is a mere question of relevancy that is in dispute, a small penalty will be quite sufficient to make it plain to a man that he has made a mistake ; and if it is sufficient, there is an end of the matter. If the penalty is not sufficient, the offender may be prosecuted for a second offence, which certainly will not be of the same character as the first. By all means let there be larger penalties for the second offence, but it is not a fair thing to make them so heavy in the first instance. When a magistrate has before him a direction by Parliament, that in certain circumstances a fine of ,£500 may be inflicted, he naturally takes into consideration that, in the opinion of Parliament, the offence in question was sufficiently serious to necessitate a heavy penalty. It is only reasonable that when Parliament speaks by its Acts, Judges should follow out what they conceive Parliament intended to be done. A penalty of ^25 may be quite as effective as a fine °f £2>5°° for the purpose in view, but the Court will see that a heavy maximum fine is prescribed, and may, therefore, be inclined to impose a larger penalty than necessary. We are told that we are dealing to a great extent with a particular company. It may be that affairs in connexion with one company had directed special attention to the state of the law. But this Bill is not really being passed to deal only with one company. It will operate in regard to offences committed by witnesses called before any Royal Commission. I should like to say in passing, that I do not believe honorable senators will find that an attempt will be made by the Colonial Sugar Refining Company to hide a single transaction that the Sugar Commission may desire to inquire into. The whole difficulty arose in consequence of the Commission refusing to allow a witness to read a statement which had been prepared, in consequence of which certain persons thought that they had not been treated fairly.


Senator Givens - Does the honorable senator think that that individual was justified in persisting in conducting the proceedings of the Commission in his own way.


Senator Lt Colonel Sir ALBERT GOULD - My opinion is that when a witness is called before a Royal Commission, it is his duty to answer questions that are put to him and are pertinent to the inquiry. 1 do not say that there was justification for a witness absenting himself, because he thought some one else had been treated unfairly. But I do say that the full statement that had been prepared was of such a character as would have given the Commission a great deal of information regarding the working of the company. If the Commission, after hearing it, thought that the statement was not full and ample, they could have examined the witness further. I think that honorable senators have treated the company unfairly by saying that it is a combine, and has been acting injuriously to the public. I do not know what the company has done.


Senator Givens - The honorable senator ought to know. He is a member of the company.


Senator Lt Colonel Sir ALBERT GOULD - Yes, if the honorable senator wishes to know, I have some shares in it. It commenced in a small way, and has become singularly successful.


The CHAIRMAN - I must ask the honorable senator not to pursue that line of argument. We are dealing with penalties which may be applied by Royal Commissions generally.


Senator Lt Colonel Sir ALBERT GOULD - The company consists of something like 2,000 shareholders, the great bulk of whom do not hold more than twenty-five shares each. That, however, is entirely beside the question. I agree that if there is a determination by persons not to give evidence before a Royal Commission, that determination should be broken down. Persons should be compelled to give evidence on matters pertinent to the inquiry. If a witness is asked a question that he does not consider to be relevant, it is proper that a Court should determine whether it is relevant or. not. If it is held to be relevant it becomes the witness's duty to answer the question, and I would not shield him from any consequences of continued refusal. I point out another peculiar thing with regard to penalties. We find that if a penalty is imposed, and the money is not paid, periods of imprisonment are prescribed, the duration varying according to the amount of the penalty. The period of imprisonment for a penalty over £50 and not more than £100, is three months; for penalties up to £200, six months; for penalties over £200, one year. It is singular that although it is prescribed in one clause that a man who shows recalcitrancy shall incur heavier penalties up to £1,000, the alternative is only three months' imprisonment. So that the Government have regarded a period of three months' imprisonment as sufficient to punish a man who refuses a second time to answer questions, and yet a person who does not pay a penalty of £500 for a first refusal, has to go to gaol for a year. Personally, I believe that if a per7 son were taken to Court, and were shown that he must answer a question considered pertinent to the inquiry, a milder form of punishment would be sufficient. We shall find that the law will be regarded as vindictive. I put it to honorable senators that it is undesirable to impose maximum penalties so high that they will have the appearance of vindictiveness, although I quite agree that persons who persist in not answering questions which are relevant, should be subjected tomeasures which will make them do so. I believe that once our people get a decision of the Law Courts they will be prepared to abide by it. If they know that they can be fined for a certain offence they will not run their heads against a stone wall. I believe also that if a man knows that he may be subjected to a fine of £20 if he does not do a certain thing, he will do it as readily as if he knew he might be fined £100.







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