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Wednesday, 4 June 1969

Senator MURPHY (New South WalesLeader of the Opposition) - It seems to me that the main point of what Senator Cavanagh was saying in relation to clause 5 is that no limit is stated and no guide lines or criteria are laid down on which a remission may be made. That seems to be a serious matter. Whether it is in relation to this Bill or any other measure, the point raised by Senator Cavanagh is an extremely important one. In some circumstances it might be possible to read into such a clause some kind of limit. For example, I suppose it would be fair to say that a remission could not be granted for some improper reason or some corrupt reason. To that extent there would be a limit. Perhaps it could be said that the levy could not be remitted capriciously, but the clause is left so wide that situations could arise which could give rise to complaints that the power to remit was being used unfairly because no limits to the power had been set. Some kind of criterion, such as hardship, should be laid down.

The point made by Senator Cavanagh is a valid one. If the provision is not corrected here the Government might chose to correct it, if the Bill is otherwise amended, by putting in some other limitation. It is a matter which should be cured in the future. It is extremely valid to point out that while power to impose the levy is given under all sorts of strict provisions for its enforcement, the power to remit is given without any bases, grounds or limits being laid down.

To pass on to other matters, unless Senator Cavanagh wants to persist with that point, could the Minister give me an answer to the question I asked last night about clause 6 (2.)? That provision states:

In proceedings for the recovery of an amount referred to in the last preceding sub-section-

That relates to the recovery of a debt due to the Commonwealth- an averment or statement in the complaint, claim or declaration of the plaintiff is evidence of the matter so averred or stated.

Why should we have these averment provisions, which are special provisions used when there is some particular difficulty? Why are they brought into this ordinary legislation dealing with chicken hatcheries? Why does not the same general rule that applies to the recovery of debts by the Commonwealth apply to people in this industry?

Why are they singled out for the use of a provision which has always been looked upon in the law with suspicion? The use of an averment provision has the effect of transferring the onus of proof. But this is a civil matter in which the Commonwealth may, even after a lapse of several years, put the onus of proof on a person to show, in effect, that he does not owe the debt. The onus should be on the Commonwealth to show that he does owe the debt. Can the Minister answer that question for me?

Senator McKELLAR(New South Wales -Minister for Repatriation) {10.30] - First I should like to answer some of the questions raised by Senator Cavanagh and Senator Murphy with relation to clause 5. As I said yesterday when we were dealing with the Meat Chicken Levy Bill, you cannot attempt to pin down everything. Any attempt to specify reasons would limit the area in which remissions could be made in deserving cases. As I understand the position, if we set down limits, the authority would not be able to give any remissions to people outside the definitions we lay down. I submit that is a most valid reason for this provision.

I come now to clause 6 and here I express my thanks to Senator Murphy for giving me the opportunity of getting some advice on the matter and obtaining an answer for him. Sub-clause (2.) of clause 6 provides that in proceedings for the recovery of levy or penalty an averment is evidence of the matter so averred. Senator Murphy asked why there is a departure from the ordinary law of the Commonwealth in this respect and why primary producers are being singled out in this way. Keeping in mind his statement yesterday that he would not be satisfied if the answer went along certain lines, I still propose, for the benefit of other people, to refer to some of the other areas in which this provision applies. I have been told of several Acts relating to levies and charges on primary producers where exactly similar provision is made. For example, I refer to section 8 of the Live Stock Slaughter Levy Collection Act of 1962, section 9 of the Honey Levy Collection Act 1962, section 7 of the Dried Vine Fruits Contributory Charges Collection Act 1964, section 9 of the Poultry Industry Levy Collection Act 1965 and section 81 of the Wool Tax Administration Act 1964. I understand that there are other Acts in which similar provision is made, but I have limited the examples I have given to those which relate directly to the collection of levies on primary products for the benefit of the branch of primary industry concerned.

Senator Murphyalso said that usually the averment provision is limited to providing that only particular matters may be averred. I can assure him that this is not the general position under Commonwealth legislation, as reference to the Acts referred to by me earlier will show. The need for an averment provision in connection with the collection of taxes and levies, whether for the benefit of the particular industry, or taxation at large, has been demonstrated many times over the years. I understand that it is felt to be particularly relevant in connection with the present Bill because of the rapidity of the transactions concerning chickens where the sale from the hatchery normally takes place within 72 hours of hatching. Because of this, it is very difficult to find out at a later date the facts surrounding particular transactions. This is very much so, of course, in the case where a hatchery proprietor deliberately sets out to evade the levy.

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