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Thursday, 1 April 1971


Senator WILLESEE (Western Australia) - We have heard two different explanations of the inclusion of this averment clause. One came from the Minister who said, as 1 understood him, that it was included in order to be fair and so that everyone would have to pay the levy. Frankly, I could nol follow that argument. Senator Milliner agreed that we do not want some people 1o pay and others not. We do not want to pass a law like that. The defence offered by the two honourable senators who are lawyers. Senator Withers and Senator Byrne, is the classic defence. Of course, averments are lawyers" dreams, particularly lazy lawyers. If they can make averments it is much easier for them to prosecute or to handle a case.


Senator Byrne - What was that about lazy lawyers?


Senator WILLESEE - I said: 'Particularly lazy lawyers'. I did not say that you were particularly vehement in putting your view forward.


Senator Gair - What about lazy politicians?


Senator WILLESEE - 1 see lazy politicians; I am looking right at one. We should always challenge the inclusion of averment provisions. Their inclusion has been challenged many times in this Parliament. It is true, as Senator Byrne said, that they have slipped through. He commented recently about having regulations and not instruments in writing. He said, quite correctly in my opinion, that he was worried about this piecemeal approach. I think he implied that that sort of thing should not be included in legislation. For that very good reason I suggest that averment provisions should be wiped out of all legislation. Surely, if you walk up to a person and say: 1 aver that you are 75 years of age and 1 am going to hold that against you in some way', it is simple for the person concerned to produce his birth certificate. He has that right and the fact is within his knowledge. That is something which should be within his knowledge only. I do not think people can go round getting people's birth certificates.

I have not been convinced by the two honourable senators who supported the Minister, because they contradicted him. Those were not the reasons he gave for the inclusion of averment provisions. I am not convinced that this is such a simple matter. To use the words of Senator Byrne, I am not convinced that we should have averment provisions because they are a convenient method of administration. That is not sufficient reason. If we drafted all legislation with a view to having convenient methods of administration - all civil servants look for it - vastly different legislation would be passed in this place from that which we have examined so closely from time to time. If the averment is simply a matter of stating your name and age, that is one thing. In this case I do not believe it is so simple. If a matter comes to court, then the onus should be on the shoulders of the prosecution to say what levy or charge a person has to pay. Honourable senators on the Government side say it is easy for a person to prove that he did not sell a certain amount or that he should not have to pay a certain levy. I say it is just as simple and just as administratively convenient for the prosecution to have to deal with these matters. I support the amendment moved by Senator Milliner.







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