Page 1790 - Week 07 - Tuesday, 18 August 1992
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We are not amending or voting against this provision, because we accept that there will be circumstances in which you can say something which is technically true but which creates a false impression, in a way. The concern that I still have is that we talk here not just about the intention of the person making the statement to create the misleading impression but also about the creation itself - if you like, to use the word that Mr Berry used before, the "subjective" creation in the mind of a listener of the impression that something is the case when in fact it is not.
I also point out, again without suggesting that we amend this, that the provisions of subclause (2) are quite draconian. It states:
In proceedings under this section against the manufacturer, producer or importer of any food ... it shall be presumed that the defendant published the advertisement, but the presumption is rebuttable.
What do you need in order to establish that presumption? You need no more than the fact that a prosecution is launched against Bloggs, who has been involved in the manufacture, production or importing of food. The department says, "Right; we are suing you for false advertising". The assumption is that you published whatever advertisement they have found and at which they take offence, and then you have to prove that you did not publish that advertisement.
That is a reversal of the onus of proof. It is fairly hefty. It is established merely by the fact that a prosecution is launched against an individual who is involved in some way in getting a particular food product onto the consumer's plate. It, again, goes quite a long way. I will accept that there are certain circumstances in which that would operate in a fashion which is not unfair, and we are prepared to accept that provision. But again I say that, if there are signs of abuse of that sort of provision, if it goes too far in its operation, then certainly we will be moving amendments to the legislation.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (9.18): Madam Speaker, these criticisms that were picked up by the Scrutiny of Bills Committee were rebutted. As I indicated in the letter to the chair of that committee, Mrs Grassby, in relation to the advertising point, that is a rebuttal of a presumption, and it is essentially there because it would otherwise be very difficult. It would force the requirement of proof that the ad from a corporation or an individual trader was placed in a newspaper. One can normally assume, that when a paid ad appears in a newspaper, that they placed it there. It would be onerous to require the proof of every such matter, but a rebuttable onus of proof for such technical matters is not an uncommon provision in legislation. I note Mr Humphries's criticism. I also note that he says that he will accept that but will watch it for abuse. We would be quite happy to say that, if there were abuse of that, we would be concerned as well. But I would expect that that would operate as many such rebuttable presumptions of technical matters do.
In relation to an advertisement which, even though every bit of it is true, can still give rise to an offence, I would remind the Assembly of a scam, which was operating in Britain a few years ago, by a particularly clever Australian entrepreneur and Ms Samantha Fox, a prominent pop singer and page 3 girl - - -
Mrs Carnell: The diuretic tea man.
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