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Wednesday, 24 February 1971


Senator RAE (Tasmania) - I have listened with some interest and concern to Senator Cavanagh's speech and would like to reply to some of the points he raised. When the proposed amendment was first mentionedI was as concerned as Senator Cavanagh about it. I do not like now and did not like then the idea of abolishing personal service. Discussions ensued as to the reasons for the practices followed throughout Australia in this particular matter and I must admit that I was very surprised to learn of the extent to which a new practice had been introduced throughout Australia for the service of summonses both of civil courts and courts charged with determining questions of breaches of duty and simple offences. That change has been most marked, not just in the last year or two but over quite a few years. It may have come about as a result of a changing attitude towards the efficacy or otherwise of service by post. It seems that the result of a very careful study made by governments of all political shades in the States, Labor as well as Liberal and Country Party governments-


Senator Cavanagh - Where?

Seantor RAE - I am coming to that. The matter has also been the subject matter of a study by parliaments in every State. It has been studied by committees, law societies and various law enforcement bodies. It has been the subject of a considerable amount of investigation and study over the past few years. The net result is that the apparent conclusion reached is that, provided adequate provision is made for re-hearing if necessary, the method of service provided for in the proposed amendment is the best method to be adopted in the interests of efficacy, economy and convenience. I share with Senator Cavanagh a concern whenever it appears to me that the rights of an individual may be infringed in the interests of any one of the 3 factors I have mentioned, lt seems that in the amendments moved by the Minister and the amendments foreshadowed in the circulated list we will achieve adequate safeguards of the rights of individuals because in the unlikely event - it happens sometimes - that a person does not receive a summons, adequate opportunity will be given for that individual to go before a court and obtain a re-hearing.

My own personal experience, and I am sure that it is shared by other members of the legal profession, is that providing a valid reason for having the first hearing and judgment or order set aside is submitted, it will be set aside and the case reheard. Terms may be imposed for a rehearing, but that is a matter for a court. I have sufficient faith in the operation of our judicial system to believe that this is the sort of function which a court can adequately exercise. On the balance of convenience it appears that it is unreal to have to get a police officer to act as a process server for every single summons that has to be served. In the interests of the protection of the community and the other interests served by the police for the community it is unreal to occupy the time of policemen in process serving. It is also unreal to take the stand that a postman cannot act as a process server, with safeguards; that is, by registered post or by the alternative means of an AR card, which was discussed but not adopted. There is no reason to believe that that method is not just as adequate as the method of service by a policeman.

Senator Cavanaghpointed out that a registered letter could be left with a person involved in a matrimonial dispute or in other circumstances which would cause the person involved not to receive notice of his trial. But that situation exists at the moment because much of the process serving in the various fields in Australia involves leaving a summons with a person over the age of 16 years, and apparently over the age of 16 years, and apparently resident on the premises. So it is clear that the method provided for in the amendment is no worse than that which has been adopted for many years.- 1- therefore suggest to Senator Cavanagh that his concern in that particular respect is not justified.

A number of the matters before us have been very carefully considered, not only by the Government and its advisers but also by honourable senators on this side of the chamber who have spent a considerable time in studying them. I think it is unfair and unworthy of Senator Cavanagh to imply that the only reason why honourable senators on this side of the chamber have shown concern and consideration is because of the points raised by Senator McClelland. I do not wish to take anything away from Senator McClelland. I simply justify what we have done by way of consideration as being in the interests of the protection of the individual. Provided adequate safeguards exist for a person to apply for the setting aside of a conviction obtained without his knowledge, on the balance of convenience 1 believe the interests of the individual will be adequately protected. . lt is my belief that until such time as this amendment is carried the safeguards are not adequate. With the amendment they will now be adequate. In other words, if one has 2 years in which to apply as of right, and after that one has such time as a court may allow, the interests of the individual will be adequately protected. I have every confidence that the courts will ensure that those interests are adequately protected.

The only other matter I wish to mention is in relation to what Senator Cavanagh said. He used an expression which f would like him to reconsider. He spoke about serving notice at the address at which the pimp says the defendant lives'. I think that was rather an unfortunate expression to use about an officer who is charged with the function of being an inspector.


Senator Cavanagh - lt is not an officer. It can be a neighbour.


Senator RAE - If the honourable senator reads the Act he will see that the person who makes the complaint is an officer of the Postmaster-General's Department. I suggest that Senator Cavanagh look at subsection (2.) (a) of proposed new section 132a. which provides: (2.) An affidavit by a person stating that -

(a)   he is an officer of the Postmaster-General's Department;

I ask Senator Cavanagh to reconsider. I am sure he did not mean what he said. I hope he did not mean it. He is describing as a pimp any officer of the PostmasterGeneral's Department who will be carrying out his necessary function of ensuring that people comply with the law and not unfairly leave the payment of the necessary fees to others. I do not think such an officer should be called a pimp. I draw that to the honourable senators attention and ask him to reconsider.







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