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Wednesday, 2 November 1910


Senator GIVENS (Queensland) . - I am in hearty accord with the intention of this clause, but I do not approve of its construction. I hope the Government will not take up the attitude that the Bill as introduced must necessarily be perfect. The whole of our experience in legislation proves that Bills as introduced are ordinarily very imperfect. Three-fourths of the time of Parliament is taken up in remedying the defects cf previous legislation. That being so, it will hardly be contended that the construction of this Bill is absolutely beyond cavil. In this clause the Government are striving to do something which they will be unable to do as the clause is drafted. They wish to make the undervaluation of land an indictable offence. They propose that the taxpayer shall be called upon to prove his innocence of an intent to defraud if he has undervalued his estate to the extent of 25 per cent, or more. If he has so far undervalued his estate the presumption under this clause is that he is guilty of an intent to defraud. The difficulty is that the Government are presuming something after the case is closed, and the taxpayer is given no chance of refuting the charge made against him. There are very many cases in English law in which the onus of proof is thrownon the defendant, but it is thrown on him at the beginning of the case, and he is given an opportunity to prove his innocence. Under this clause a certain- thing is presumed after the jury have found it, and the taxpayer is given no chance at all.


Senator McGregor - Not at all.


Senator GIVENS - I shall read the provision to show that what I have said is an absolute fact. Sub-clause 2 of clause 67 provides that -

Where the value stated in the return is less by 25 per centum or more than the value as found by the jury, the value shall be presumed, in the absence of evidence to the contrary, to have been understated with intent to defraud.

At what time do the jury come to their finding ?


Senator Pearce - Has the honorable senator never heard of a jury returning a verdict that something was done with, or without, an intent to defraud ?


Senator GIVENS - That is not what is provided for in this clause. The first part of the clause is all right, and reads -

Any person who, with intent to defraud, in any return understates the unimproved value of any land, shall be guilty of an indictable offence.

Under our law any person charged with an indictable offence has a right to be tried by a jury.


Senator Pearce - There are two things found by the jury - the undervaluation and the intent to defraud.


Senator GIVENS - Under the first part of the clause a person who, with intent to defraud, understates the unimproved value of his land, not to the extent of 25 per cent., but to any extent, is held to be guilty of an indictable offence, but in sub-clause 2 we have a direction to the jury. Can an Act of Parliament give a direction to a jury in an indictable offence? For an indictable offence the person charged has a right to be tried by a jury.


Senator Pearce - Under this clause the defendant is charged, and the jury find him guilty or not guilty. If they find him guilty there are two counts to the indictment - one the undervaluation, and the other the intent to defraud.


Senator GIVENS - I have no objection to that. The taxpayer is guilty or rot guilty of an indictable offence, but under this clause we place upon the jury a further duty. We ask the jury, after til the evidence is closed, to decide whether the taxpayer has undervalued his estate. If they decide that he has done so he is presumed to be guilty of an intent to defraud. I' say that if we are going to presume an intent to defraud on the part of a taxpayer we should do so at the beginning, and not at the end of the < ase.


Senator Needham - They have heard the evidence in the meantime.


Senator GIVENS - If I am going to be charged with an indictable offence in which I risk the loss of my liberty and the imposition of severe penalties, and I am going to be presumed to be guilty, I wish, in common fairness and justice, to be presumed guilty at the beginning of the* trial, and not at the end of it.


Senator Rae - So a man is presumed to be guilty, or he would not be put on trial before a jury.


Senator GIVENS - A man is not presumed to be guilty merely because he is charged with an offence. Under the British law, with some important exceptions, a man is presumed to be innocent until he is proved guilty. The honorable senator's statement is unadulterated bunkum, because it means that all that is necessary in order to presume that a man is guilty is to arrest him and charge him with an offence. Some of the most innocent of men have been arrested and charged with offences. Even in cases where the onus of proof is thrown on the accused person, he is not presumed to be guilty. A man is not presumed-


Senator McGregor - The honorable member has said that about fifty times already.


Senator GIVENS - I shall say it fifty times more if necessary. Because the Government happen to be the authors of a Bill, the honorable senator, like most of those who sit at the Ministerial table, thinks that it represents absolute perfection.


Senator McGregor - The honorable member can vote against it.


Senator GIVENS - I shall please myself about that. I want to see our Acts made as nearly perfect as possible.


Senator Rae - Will not the evidence which shows the undervaluation show by what means that evidence was obtained ?


Senator GIVENS - The jury will be in possession of all the evidence, but in the case of an indictable offence they cannot be charged with the duty of saying what degree of offence has been committed. If they decide that a man has been guilty of understating the value, it will not matter whether it is by 1 or 50 per cent. 1'he intent to defraud will have to be proved, and, if the intent is there, the man is equally guilty and ought to be punished.


Senator McGregor - Is the honorable senator going to repeat these statements all night?


Senator GIVENS - The honorable senator, because he happens to be the comic relief of the Government, thinks that everything ought to be regarded as a mere joke. I consider that this is very serious business, and that it ought to be treated seriously. I have asked the honorable senator for information as to why the clause appears in this particular form, and have failed to get it. The clause is the acme of bad drafting and bad construction.







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