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Wednesday, 24 February 1971

Senator GREENWOOD (Victoria) - I think the Senate is indebted to Senator Murphy for the approach he has adopted to this provision. I think his apprehension is fairly based. It is this sort of consideration which, as I said earlier, has concerned Government senators and is substantially the reason . for the amendments which the Government is putting forward at this stage. We had the same views that Senator Murphy has expressed and we believed that we should be careful in the introduction of an innovation such as a new form of service of documents under which persons can be charged with criminal offences to see that there is every protection for the individual and that every step is taken to ensure that there shall be correct service so that .the offence with which he is charged comes to his notice.

Senator Murphyreferred to section 132 of the Broadcasting and Television Act which sets out the penalty for a person who does not take out a broadcast listener's licence or a television viewer's licence in accordance with . sections 125 or 126. There is a penalty, in . the discretion of the magistrate, of a fine of up to $200 or up to 6 months imprisonment. Senator Murphy would know that the general practice in these matters is that fines are imposed for breaches of those sections of the Act. If a person goes before the court on a charge of not having a radio listener's licence or a television viewer's licence the fine imposed depends upon the magistrate at that court. But as I recall experiences in petty sessions over many years I cannot remember anybody ever having been sentenced to gaol for this sort of offence. I think this is one of the practical consequences which-

Senator Murphy - If that is the basis upon which you are going approach the matter would it not be sensible for us here and now to delete the reference to imprisonment and simply leave the fine?

Senator GREENWOOD - I am not prepared to go that far. I will give my reason in a moment. Whilst it is a fact that the penalty prescribed is either a fine or a gaol sentence, practice indicates that magistrates with good common sense do not impose gaol sentences. On the other hand if there is a repetition of the offence over a period of 5 or 6 years and the person concerned is a persistent offender undeterred by fines of S200, T think a magistrate could well take the view that he has to impose a gaol sentence and send that person to gaol for 1 month or 2 months. I think that sort of situation is very rare. I put it forward because to me the general fear expressed by Senator Murphy, though well based theoretically, does not worry me in practice as one of the likely consequences of the new system which is being imposed.

I asked a few questions when Government senators were considering these provisions and ascertained that in 1968-6.9 there were 20.959 prosecutions for offences against either sub-sections (6.) or (8.) of sections 125 and 126.

Senator Cavanagh - How were they served?

Senator GREENWOOD - The fines imposed amounted to $367,484.

Senator Byrne - Were they the only penalties imposed?

Senator GREENWOOD - They were, as I understand it, the only penalties imposed and to the best of my knowledge no gaol sentences were imposed in 1968-69 on those miscreants who failed to take out their radio broadcast listener's licence or television viewer's licence.

Senator Douglas McClelland (NEW SOUTH WALES) - ls that the total number proceeded against or the total number of convictions?

Senator GREENWOOD - That is the total number of convictions. I do not know the number proceeded against. The general pattern is that if a prosecution is proceeded with it is because the defendant has been caught redhanded, as it were. The inspector has gone along to the house and has seen a television set or a radio set and the owner has not had a licence, and really there is no defence. 1 think this is the sort of practical consideration which we should keep in mind.

In view of the number of offences which occurred in 1968-69 it is prudent to ask what Senator Cavanagh asked me a moment ago. He wanted to know how those summonses were served. They would have been served in accordance with the laws of each of the States where the prosecutions occurred. I am not sure whether in 1968-69 there was provision for service by post in all the States, lt certainly was available in some States. I am unable to say generally whether those summonses were served by post or otherwise. My belief, arising out of discussions I had with officers of the Attorney-General's Department and the Postmaster-General's Department, is that they were served by police. We recognise that there is a shortage of police in every State. There are constant clamours for policemen to be available to do what is regarded by the public as police duties.

Senator Withers - Senator Cavanagh presented a petition today about law enforcement.

Senator GREENWOOD - I am indebted to Senator Withers for the revelation that Senator Cavanagh does not have to be further informed about what I am going to say. The point that concerns the PostmasterGeneral and the Government is that the States are asking why their police should be available simply to act as process servers of summonses charging people with breaches of Commonwealth Acts, and in particular a breach of a Commonwealth Act which says that a person has to have a radio licence and a television licence. I refer the Committee to what the Minister for Housing (Senator Dame Annabelle

Rankin) said in her second reading speech when presenting this Bill. She said:

More recently, with increasing demands on the police, it has been made clear to the Commonwealth that some of the States are no longer prepared to see members of the police used to serve summonses for the more common Commonwealth statutory offences. The Chief Secretary for Victoria has already informed the Commonwealth that the Victoria Police will no longer undertake the service of summonses issued under the Broadcasting and Television Act. lt has, therefore, become necessary to arrange immediately for some other means of effecting service of summonses in respect of the common minor offences under the Broadcasting and Television Act in relation to unlicensed broadcast and television receivers.

Well, with an economy of language but with an absolute simplicity and clarity and purpose, the Minister has justified these provisions. I. think it is perfectly clear that what she is doing is simply saying that a defendant can be informed by registered letter of the offence with which he is charged. It is up to the defendant to take whatever action he wishes to defend himself. I appreciate that a person served in that way may be faced, theoretically, with the prospect of having to pay a heavy fine or of having to serve a gaol sentence.

Senator Murphy - Do you see any objection to a proviso which states that if a person does not appear and if the service is said to have been in that way he should not be sentenced to imprisonment?

Senator GREENWOOD - I do not see any objection, to that, but I do not see any benefit in it. I do not feel that the magistrate should be fettered in the type of penalty which he should be able to impose.

Senator Murphy - If the case is such a bad one that the person served could be imprisoned, surely he should be served personally. Should not the PostmasterGeneral have him served personally?

Senator GREENWOOD - I still feel that Senator Murphy should not apply his ardour, which does him credit, so strenuously in this case. He is attempting to put the Postmaster-General in the position of a person who characterises the offence before the adjudication has taken place. If initially the Postmaster-General takes the view that a certain offence is of a serious character and that therefore it requires that the person shall be served by personal pro cess, while others can be served by post, he is going very close to adopting the role not only of prosecutor but also of judge; he is influencing the magistrate in the type of attitude that the magistrate should take to the offence.

I do not believe that any of the provisions suggested by Senator Murphy are necessary because, if the Committee agrees to the words suggested by the Government as a further amendment, the Act will contain an adequate means of setting aside any conviction arrived at where this means of service is used and where the letter is not received by the defendant. The legislation contains a provision that, if a person who has been served appears in court and says that he did not receive the letter, the court must then set aside the conviction. To me, that is a complete safeguard and I cannot sec that any other provision would be as satisfactory as that. All that a person who is faced with a conviction - be it a fine or a gaol sentence - has to say is that he never received the summons. If he satisfies the court that he did not receive the summons, the conviction has to be set aside. That is a necessary corollary of the system of service which is being proposed. As that safeguard does exist, I feel that the present system should be instituted, because of the problems associated with service of documents relating to common statutory offences. Police in the States have other jobs to do and should not be required to serve documents and because the system now being set up in the Commonwealth will mean that service can be effected by registered letter. The fact that all States are adopting a similar method of service should not conclusively determine the issue for the Commonwealth, but I think that is a relevant fact which we can bear in mind when supporting the action which the PostmasterGeneral has taken.

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