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Friday, 3 November 1911

Senator KEATING (Tasmania) . - The more the Ministers address themselves to the clause, the more apparent it becomes that either they have misconceived its purpose and effect, or they are not furnishing the Committee with the fullest information that they have. Just before we adjourned for lunch Senator McGregor pointed out repeatedly what the officer, engaged on behalf of the Electoral Branch of the Home Affairs Department, will have to prove, quite heedless of the fact that the whole object of the clause is that he shall be called upon to prove nothing. The averment, which will have been made some days before the hearing of the case, and which will consist of a very perfunctory act, in most instances, will be proof in itself. Speaking more recently, the Minister of Defence has told us that the Attorney-General's Department has furnished the Government with advice, or with an opinion to the effect that a clause of this kind, is absolutely necessary to carry out the provisions for compulsory en rolment. With Senator Millen, I have no hesitation in saying that that is making too great a strain on the credence of the Senate. The Minister must have misunderstood entirely the effect of the AttorneyGeneral's opinion. I would certainly like to see the opinion of the AttorneyGeneral's Department on a point of this kind. I have never yet known a case where a member of the legal profession, eminent or otherwise, has had the temerity to give an opinion on data not supplied. The clause provides that the averment of the officer shall be proof, in any case, of a prosecution for " any contravention of any of the regulations " - that is, regulations which are not yet in existence.

Senator Findley - Let us stick to the point.

Senator KEATING - That is the point.

Senator Findley -What it refers to is " regulations in respect to compulsory enrolment."

Senator KEATING - Of course.

Senator Millen - By degrees the Minister will get to know his own Bill.

Senator KEATING - How many regulations are there fo be, and how many penalties are to be provided in connexion with, not a regulation, but any of the regulations - to enforce compulsory enrolment ? The Minister has carte blanche, as we have said repeatedly, to make any number of regulations in respect to compulsory enrolment, and to impose penalties for a contravention of them. And now we are asked to believe that the Attorney-General's Department has advised that averment for proof is the only means of enforcing compulsory enrolment - averment for proof of a breach of a regulation which is not yet in existence. I venture to say that, neither the present, nor any past, Attorney-General ever hazarded such a speculative opinion. As regards Senator Pearce' s allegation that, in a prosecution, the Department will be called upon to prove a series of negatives, I wish to say that it will be in no harder position in that respect than is' any one of the State Departments which are constantly enforcing the law. For instance, they are enforcing the Codlin Moth Act, and other Acts, relating to pests. They are enforcing the Local Government Acts.

Senator McGregor - And enforcing the Dog Act.

Senator KEATING - Yes, and enforcing the Dog Act, with which the honorable senator appears to be familiar. Senator

Pearce seemed to confuse entirely two distinct things, namely, what is called -prima facie evidence, and what is called proof. In this case, simple averment will not be prima facie evidence, but conclusive evidence, and that makes all the difference. I think I am right in saying that in the large centres of population, particularly, the course will be followed of issuing a whole host of summonses returnable on the one day. I think the Department, anticipating that there will be a great number of offences will have its own form of printed summonses. Those summonses will be issued to a number of persons, and . a not inconsiderable portion of those persons will naturally imagine that the summonses are intimations that they are not enrolled, and will suffer some penalty in consequence - the penalty of disfranchisement. Probably that is the only notice they would take of the matter until a fine was demanded of them. I do not want proposed new section 6ie to be carried without some > provision to protect the individuals who will be served with summonses in that wholesale way, and, before I sit down, I shall indicate an amendment which I shall move in the event of proposed new section 6ie not being deleted. The Minister in charge of the Bill took a totally different ground from the other two Ministers. One would be inclined to believe that, in his opinion, the form of procedure proposed is a commendable one - that is to say, that simple averment should be taken as proof if a defendant does not appear and prove the contrary. Does the Minister really believe that?

Senator Findley - In regard to this measure, yes.

Senator KEATING - In the Commonwealth Statutes 1905, the Minister will see, if he looks at page 218 in the " Index to Acts in the Appendix - Electoral Act," pretty nearly the whole of a closely printed page under the heading of offences. Will the Minister tell me, in connexion with what other offences under the Electoral Act is averment proof? It is provided in section 173 that -

To secure the due execution of this Act and the purity of election, the following acts are hereby prohibited and penalized -

(1)   Breach or neglect of official duly.

Then section 174 provides that - " Breach or neglect of official duty " includes -

(1)   Any attempt by any officer to influence the vote of any elector or, except . by recording his vote, the result of any election.

(2)   The disclosure of any knowledge officially acquired by any officer ' or scrutineer touching the vote of any elector.

(3)   Any neglect or refusal by any officer to discharge any official duty and any violation by any officer of any provision of this Act.

(4)   Any attempt by a person authorized or required by this Act to witness the signature of an elector on the counterfoil of a postal ballot-paper to influence the vote of the elector whose signature he witnesses.

The Minister said just now that he believes that to insist on the principle of averment being proof is the best form of procedure in connexion with this Act. Will the Minister, and the Department behind him, be prepared to take themselves the sauce which they provide for the goose?

Senator Findley - I said " in regard to this measure."

Senator KEATING - Here we have an Electoral Act which is filled with provisions for offences, and if the Department, well equipped as it is, and having all possible organization and means to put forward its knowledge in a proper form, thinks that it is necessary to fall back upon averment for proof of an offence against an individual, why will it not accept the same position itself? If any of the officers of the Electoral Branch are charged with an offence against the electoral law, are they prepared to allow a simple averment to be taken as proof of their guilt in the absence of proof to the contrary? If not, I ask, why do they wish to hold that advantageous position as against an individual ? If there should be any advantage at all in these matters, the advantage should be extended to the individual - not to the official or the Department. I think it should be certainly explained why, if averment is to be taken as proof in the one case, it should not be taken as proof in the other. I indicated a moment or two ago that I believe that prosecutions under the provision with which we are dealing will be instituted in a wholesale way, and that, in most instances, the Department will find it necessary to have on hand a large number of information or complaint forms, so that the persons alleged to have evaded the obligation of compulsory enrolment may be summoned at a proper time and dealt with in a batch. I can understand that, if the Department had twenty or thirty persons who had endeavoured to evade their obligations to proceed against, it would wish to have them dealt with on the one day, so that the officers could give evidence in a number of cases without having to attend Court on several days. But it is obvious to me that a number of persons served with summonses will take no notice of them, and, for that reason, if proposed new section 6ie is carried, I desire to have an additional provision inserted.

Senator Millen - You do not mean that the persons who would refrain from taking notice would do so out of disrespect for the law ?

Senator KEATING - No. I would suggest that if proposed new section 6ie is carried, the following should be inserted as new section 6if -

Every summons to a defendant in any such prosecution as last mentioned shall have conspicuously printed upon the face of it a notice in the following terms, namely, " At the hearing of this information or complaint you must lender or produce evidence, otherwise the statement above set forth will be taken as proof without the evidence of any further witness or witnesses in support of the same, and the penalty prescribed for the offence with which you are charged is here set forth."

Unless something of that kind is conspicuously printed on the face of the summonses, a large proportion of the persons receiving them will take them as being notices of the kind which they have received in the past, non-compliance with which involves no responsibility or punishment.

Senator McGregor - The honorable senator is placing a very high estimate on the intelligence of his fellow citizens.

Senator KEATING - I am not dealing with the intelligence of my fellow citizens at all. I am speaking from some experience and observation, and I know that many circulars sent out in conformity with various Acts of Parliament, both Federal and State, are not read. My honorable friend may think that 'he glamour of his particular legislation will have a greater attractive force for the recipients of summonses, but I venture to think that experience will prove him wrong. What possible objection can there be to notifying the recipient of a summons that, unless he tenders evidence to the contrary, the statements set forth in the summons are to be taken as proof? I have only indicated this amendment in case there is no possibility of defeating proposed new section 6ie. I certainly think that provision should not appear in an Electoral Act. I hope it will be defeated, but, in case it should be carried, I intend to move the addition of the further provision which I have indicated.

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