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Tuesday, 23 May 1972
Page: 1909


Senator CAVANAGH (South Australia) - Clause 8 provides: (1).) The following amounts may be recovered by the Commonwealth as debts due to the Commonwealth:

(a)   levy that is payable;

(b)   an amount that is payable to the Commonwealth under section 6 of this Act; and

(c)   an amount that is payable by way of penalty under the last preceding section. (2.) In proceedings for the recovery of an amount referred to in the last preceding subsection, an averment of statement in the complaint, claim or declaration of the plaintiff is evidence of the matter so averred or stated.

The Opposition opposes sub-clause (2.). I move:

Delete Sub-clause (2.). The Opposition has always opposed the conviction of a defendant on a statement which appears in a publication, and also the taking of the onus of proof from the prosecution. We agree that if levies are not paid some action should be taken by the Commonwealth. In such proceedings the Minister or the prosecution should prove that the defendant sold milk and that he refused to pay or had not paid the levy. Because we have the right of inspection, this can be easily proved by calling for the books of the factory to which the milk was sold. Evidence can be called to the effect that the milk was sold to the factory. It is not difficult to prove that the milk was sold, and it would be very simple to prove that the levy was not paid or that the Commonwealth did not receive the levy. Having proved that, it is then the responsibility of the defendant to prove his innocence on the case that had been presented.

When someone is taken to court, prima facie he is guilty of having sold X gallons of milk and of not paying the levy because the summons states this. He has to prove either that he did not sell the milk or that he did pay the levy. This is a complete reversal of the principle of onus of proof resting on the Crown. It is completely contrary to the British system of justice. It is contrary to the system under which we operate in Australia in relation to prosecutions. Placing the onus on the defendant is permitted at times when a matter would be extremely difficult to prove otherwise, but there is no difficulty in relation to proof in this case. The Government should accept its responsibility of proving its case when it prosecutes a person in the courts. Consequently, the Opposition will oppose clause 8 (2.).







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