Page 2880 - Week 11 - Thursday, 22 October 1992
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would all agree, is a bad thing. Again, there is an advantage to that person in not having to go through the early stages of proving that he is in fact a consumer. On balance, while it is fair to say that the subclause is a reversal of the onus of proof, I think it is one which serves some benefit, however minor.
MR HUMPHRIES (11.04): Madam Speaker, I have to support the position taken by my colleague Mr De Domenico and indicate that this Assembly should, only in the most serious circumstances, consider reversing the onus of proof. When the Minister said that it was a lineball decision, I do not know whether he meant that it was lineball as to whether it was more efficacious or not to have a reversal of the onus of proof. But in my opinion the line, in that sense, should fall not on whether it is more or less advantageous to one or other party in a proceeding but rather on whether it is absolutely essential or not that that reversal occur because of the nature of the circumstances in which it might be applied. In other words, it is a very serious matter to ask a defendant in proceedings - a person who is, by common law, innocent until proven guilty - to suspend that presumption and to prove that certain elements of the charge are, in fact, not the case. My party in particular views a reversal of the onus of proof in any circumstance with a great deal of scepticism.
Madam Speaker, I really do not believe that the Government has discharged the very serious onus on them to establish a case for reversal of onus of proof. It just has not occurred in this case. It is not just so-called consumers - it might be, as the Minister points out, companies - who might be benefited by this reversal of onus of proof. Of course, it is the party conducting proceedings of any kind; it is the plaintiff. In fact, it could be the Trade Practices Commission. I really see no reason why the Trade Practices Commission should be given an advantage by removing the presumption that permeates the whole of our common law that a person is entitled to have a matter proved against him or her on the balance of probabilities.
I exaggerated slightly by talking about being innocent until proven guilty, but that is not an uncommon trait for anybody in this house. So, I can be forgiven for that, I am sure. Even in civil proceedings, that reversal is a matter of great concern. I think we should abandon the presumption that the plaintiff has to prove his or her case comprehensively before a court on the balance of probabilities only in the most exceptional circumstances. Quite frankly, Madam Speaker, those exceptional circumstances are not made out in this case. That is why the Scrutiny Bills of Committee recommended that the matter be re-examined and why I believe that we need to take the matter up and pass the amendment which Mr De Domenico has proposed here today.
MS ELLIS (11.08): Madam Speaker, I rise very briefly to endorse the words of my colleague Mr Connolly. I think it appropriate and proper that if we are going to lean towards a side we should always lean towards the consumer. Any definition should support the consumer. In this debate we need to note the Federal Opposition's apparent motives in the consumer affairs debate. It is apparent to my learned colleagues in the Federal Parliament that the post of Minister for Consumer Affairs will be abolished in a Hewson government. We need to enforce even more our belief in the consumer in this world, and I endorse thoroughly the words of my colleague Mr Connolly.
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