Page 911 - Week 06 - Tuesday, 25 July 1989
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mistake on the part of a public servant. It is possible sometimes that the registrar will make mistakes; we all make mistakes. It is possible that if this occurs here and the registrar signs a certificate which is inaccurate, without a provision such as this it might be the case that some courts would say, "I have no power to review this evidence. I must accept this evidence and therefore I will not provide any challenge to this evidence".
Subclauses (5) and (6), which I have put forward here to add to that clause, amplify that protection. I am aware of advice from the Minister's advisers - and I thank them for their helpful assistance today - that provisions of this kind are not necessary; they can be read into the clause, or similar provisions can be assumed into the clause. I accept that there is a view that that is the case. I have not seen any conclusive evidence that that is the case, that there is irrefutable legal or common law opinion that this should be the case. In the absence of any such evidence, I urge the Assembly to consider whether it should not make it clear in the legislation at the outset, and make clear that citizens who face prosecutions in these circumstances have certain rights to prove that certain chemicals are not as the registrar claims they are. It does not mean that the citizen's word is taken over that of the registrar; it simply means that the issue is opened up for a legitimate contest in a court of law, which is to date our best means of determining issues of this kind.
MR WHALAN (Minister for Industry, Employment and Education) (9.37): Mr Speaker, the Government opposes the amendments. The proposed amendments to subclause 77(1) and (2) to include the words "prima facie" we would suggest are unnecessary as the words add nothing to the provision. With or without the phrase, the evidence would be given, whatever probative value a court chooses to attribute to it, and it may be rebutted by contrary evidence the court found more persuasive. In order for evidence to be conclusive, a provision must make express reference to the evidence being conclusive. We urge the Assembly to oppose the amendment.
MR COLLAERY (9.38): Mr Speaker, the Rally does not support the amendment. In discussion with my colleague Mr Moore, he has informed me of the comments that the Deputy Chief Minister has just made. The Rally takes the view that to import the words "prima facie" may extend litigation unnecessarily. The magistrate or the judge has an inherent jurisdiction to ensure that there is no miscarriage of justice. They have always had that, as my colleague Mr Humphries will concede. To create a lesser standard of proof in a matter that is merely dealing with the certification of documents would create a situation which one could parallel by example. In the magistrates court, as my colleague Mr Stefaniak well knows, certificates are tendered constantly as to the readings on breathalyser machines. If we interpreted "prima facie" before the relevant clause, as my colleague Mr Stefaniak knows, we could lengthen quite a bit of litigation in this city.
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