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Wednesday, 24 February 1971

Senator HANNAN (Victoria) - I think Senator Murphy's solicitude in this matter does him credit, but he knows better than I do of very many instances of court procedures in which a notice of appeal is in fact treated as the appeal itself. Senator Murphy knows from his own experience in the High Court that it is quite customary on a hearing of an application for leave to appeal for the appeal itself to bc heard.

Senator Murphy - But that provision is not included in the Bill or in the proposed amendment.

Senator HANNAN - Wait a moment. I gave you a very free hearing. Senator Murphy knows that that is a common practice in legal circles. I go further and say that these proceedings would normally be heard in courts of petty sessions, magistrates' courts or the equivalent courts in other States, known by different names. At present in Victoria there are certain provisions in respect of re-hearings. On an application for re-hearing the law states that the actual re-hearing may take place on the day on which a re-hearing is granted. So all this nonsense about 2 application 's rather irrelevant. On the point of natural justice, as I understand the proposed amendment a defendant has an absolute right lo have the conviction set aside if within 2 years he satisfies the conditions set out in sub-section 4 of proposed section 132a. It seems only reasonable that after a lapse of 2 years some form of onus should bc placed upon an applicant to establish his bona fides. The legislation contains very generous provisions for rehearing and in the circumstances Senator Murphy seems to me to be straining at gnats and swallowing a camel in pursuing the line he has taken. I support the proposed amendment.

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