Queensland

Parliamentary Debates [Hansard]

Legislative Assembly

THURSDAY, 11 APRIL 1946

Electronic reproduction of original hardcopy

Questions. [11 APRIL.] Questions. 2331

'l'BURSDAY, 11 APRIL, 1946.

Mr. SPEAKER (Hon. S. J. Brassington, Fortitude Valley) took the chair at 11 a.m.

QUESTIONS.

ROCKLEA MUNITIONS FACTORY.

Mr. PIE (Windsor) asked the Premier-'' 1. In vie.w of the Government's proposals

to take over Rocklea, will he give considera­tion to appointing a non-parliamentary com­mittee with the Secretary :for Labour and Employment as chairman, with power to eo-opt employers and union officials, so that a complete investigation can be instituted as to the best types of industries to be established at Rocklea ~

"2. Will he also investigate the possi­bilities of taking over excellent factory ,buildings at Bulimba, one of which is air­conditioned and at present being vacated by the Royal Australian Navy, gnd offering them to industrialists on a similar basis as proposed at Rocklea ~

'' 3. Will he also institute investigations in regard to taking over Commonwealth Government buildings in northern towns, particularly the splendid Allied Works bnilding in Townsville, which would be very suitable for factory developmenU"

Hon. E. M. HANLON (Ithaca) replied-'' 1 to 3. The Government will continue

the policy which it has pursued in the past -that is, to use every endeavour to encourage the establishment of new industries and to aid existing industries to expand and prosper. "

REPORT OF ROYAL COMMISSION ON COAL­MINING.

Mr. PIE (Windsor) asked the Premier-" 1. As the recent findings of Mr. Justice

Davidson were of such vital importance to the coalmining industry in Queensland, will he ascertain from the Commonwealth Government why copies of such findings were apparently made available to unions and other organisations and not the Queens­land GovernmenU

"2. In order to avoid a repetition of what has happened, will he endeavour to make arrangements for the benefit of this and future Governments with the Common­wealth Government to forward urgently any reports which affect Queensland industries~ ' '

Hon. E. M. HANLON (Ithaca) replied-'' 1 and 2. In reply to a request by the

Minister for Mines for a copy of this report, the secretary of the board of inquiry into the coalmining industry replied in the following terms under date 27 March, 1946 :-'Only five copies of the report, which is in three volumes, have been prepared in typescript, and it is regretted that no copies will be available for distri-

bution until after the report has been printed. The printing is to be proceeded with without delay, but, owing to the" report's great length and the large number of graphs, charts, &c., included, I am very much afraid it will be some weeks yet before your request can be complied with. Your letter will be passed on to the Prime Minister's Department, Canberra, and I suggest you communicate with that depart­ment in about a month's time.' In view of this reply, it seems difficult to believe that official copies of this report are as freely available as the hon. member suggests. ' '

BUILDING ADDITIONS, CAMP HILL STATE SCHOOL.

Mr. LUCKINS (Maree), for Mr. MARRIOTT (Bulimba), asked the Secre­tary for Public Works-

' '1. In view of the Government policy decided on 18 years ago, that in the case of any new school buildings, or addi­tions to existing buildings, to be erected in the metropolitan area or in provincial centres, such new buildings or additions are to be of brick construction, will he inform the House as to the reason for the continual erection of wooden additions to Camp Hill State School~

'' 2. Will he consider the adoption of a long range building policy with respect to the Camp Hill State School to overcome the present position, whereby every few years a new wing is erected, and is overcrowded as soon as completed~ ' '

Hon. H. A. BRUCE (The Tableland) replied-

'' 1 and 2. A hard-and-fast policy, such as is indicated by this question, was not approved. It was decided that, when new schools were to be built or additions made to existing buildings, the question of whether the construction should be in brick or timber framed was to be determined on its merits in each case, having regard to the views and requirements of the Depart­ment of Public Instruction. During the past four years it has. n?t be~n p~acticable to construct school bmldmgs m bnck. The limited supplies of bricks available were required for high priority jobs associated with war work. Since the cessation of hostilities, bricks have continued in short supply. 'rhe ·departme~t is stifl unabl~ to secure the bricks reqmred for authonsed additions to three brick schools in the metro­politan area. Because of the continuing and rapid increase in the school attendance at Camp Hill, necessary accommodation could not have been provided if it had to wait on brick construction. The department, therefore, had no alternative but to provide the additional classrooms in timber frame construction. The situation at Camp Hill will be the subject of consideration by the Department of Public Instruction, the Public Works Department, and the Co­ordinator-General of Public Works when the building programme for the ensuing financial year is under discussion. In view

2332 Address to the Governor. [ASSEMBLY.] Medical Acts Amendt. Bill.

of the large building programme envisaged in connection with the establishment of post-primary schools, it may be necessary to review policy with respect to primary school construction, at least for a period.''

PAPERS.

The following papers were laid on the table:-

Regulations (Timber and Quarry) under the Land Acts, 1910 to 1937 (28 March, 1946).

Regulations under the State Forests and National Parks Acts, 1906 to 1934 (28 March, 1946).

Regulations under the Land Acts, 1910 to 1946 ( 4 April, 1946) .

Order in Council under the Money Lenders Acts, 1916 to 1934 ( 4 April, 1946).

Regulation under the Employment Exchanges Acts, 1915 to 1941 (4 April, 1946).

ADDRESS TO HIS EXCELLENCY THB GOVERNOR.

Hon. E. M. HANLON (Ithaca-Premier), by leave: I move:-

"That the following address be pre­sented to His Excellency the Governor:-

"We, the members of the Queensland Legislative Assembly, desire to place on record our deep regret at the approach­ing departure from the State of His Excellency, Colonel the Right Hon. Sir Lrslie Orme Wilson, G.C.S.I., G.G.M.G., G.G.I.E., D.S.O., and to express our keen appreciation of the great service ren­dered by him during the period of 14 years in which he has achieved a record in length of service as a representative of His Majesty in Queensland.

''The House is appreciative of the zeal which His Excellency has shown dur­ing the years of peace and war in the performance of his duties; of the encour­agement which he has given the citizens of the State in promoting development and progress; in all of which Lady Wilson has contributed.

''This House, in bidding farewell to His Excellency and Lady Wilson, expresses thanks to them for their ser­vices to Queensland and heartiest good wishes for thrir success in their under­takings in the future.''

Mr. NICKLIN (Murrumba-Leader of the Opposition): I have pleasure in seconding that motion.

Motion agreed to.

Hon. E. M. HANLON (Ithaca-Premier) I move-

'' That the Address be presented to His Excellency by Mr. Speaker accompanied by members of the Legislative Assembly at such time as may suit His Excellency's convenience.'' Motion agreed to.

MEDICAL ACTS AMENDMENT BILL.

SECOND READING.

Hon. T. A. FOLEY (Normanby-Secre­tary for Health and Home Affairs) (11.13 a.m.): I move:-

'' That the Bill be now read a seoond time.''

At the introductory stage I gave a some­what detailed and exhaustive outline of the main principles contained in this Bill, and indicated to the Committee that they were embodied in the measure as a result of repre­sentation from the Medical Board.

Hon. members conversing in loud tones,

Mr. SPEAKER: Order! There is far too much noise in the Chamber.

Mr. FOLEY: We found that, since its establishment the board has been handicapped by certain disabilities or anomalies in the Act, and it is proposed, in the first place,. to insert a provision to allow the board to appomt a chairman from its own members at any meeting from which the president and the deputy-president may be :absent. That power does not exist now, and it is proposed to give it to enable the board to proceed in an orderly manner with the meeting should both those gentlemen be absent.

The next main purpose of the Bill is to ensure that the Medical Board, instead of incurring heavy expenses in arranging for witnesses at an inquiry by the board to come to Brisbane and appear before it for the purpose of establishing whether a prima­facie case exists, may in certain cases direct a stipendiary magistrate to take statements from them so that these statements may be considered by the board. It may happen, for instance, that a case arises at Charleville or Mt. !sa, and heavy travelling expenses would be incurred in bringing people from there. Naturally, the board can arrive at a decision just as easily from the statements made to the stipendiary magistrate.

Another principle is that if a medical prac­titioner has been summoned by the board to attend an investigation to enaHe it to ascer­tain whether the evidence establishes a case against him, the medical practitioner shall not be allowed by the board any expenses incurred by him in attending befo<re the Medical Board of Queensland if he is found by the Medical Assessment Tribunal to be guilty of prof,essional misconduct. It is hoped that as :a result a further saving in costs will be effected. The main purpose in the minds of the deputation that waited on me as to the cutting down of the board's costs was that its revenue comes principally from registra­tion fees of medical practitioners and special­ists. On oee.asions it has been in debit and on several other occasions has been sailing very close to the wind.

In order to give hon. members some idea of the costs at times involved, I would inform them that in one case in which the board moved for the deregistration of a practi­tioner, the cost to the board was £143 18s. 6d. In another case, an appeal against an order

Medical Acts [11 APRIL.] Amendment Bill. 2333

of tl;le tribunal, the cost to the board was £466 6s. 6d. In that case the tribunal's order was quashed and the registration Testored. In an appeal against a refusal by the board to register a specialist the costs were £316 17s. 3d. In a charge by the board in which the practitioner was found guilty and fined 1s., the cost to the board was £97 17s. 6d. In a charge by the board in which the complaint was dismissed the cost to the board was £89 19s. Sd. An appeal against the refusal of the board to register a specialist cost the board £66 6s. 6d. A case in which the board charged a medical practi­tioner cost the board £99 7s. 6d. Other cases have cost £101 4s. 9d. and £425 9s. 2d.

These expenses are high and they are caused by the fact that a complaint is made to the board and the board, acting in good faith, takes action against a medical practi­tioner with a view to protecting the interests of the public and the good name of the medical profession. Under this Bill, if any medical practitioner who is brought before the board on a charge is found guilty he will not be entitled to any costs whatsoever.

A very important principle in the Bill deals with the repeal of the existing pro­visions relating to the duties of assessors. Under the new provision it will be the duty of the assessors to advise the judge as to what in their opinion is the proper deter­mination of any question of fact that may arise with respect to any matter before the tribunal, and for that purpose they may ques­tion any witness and may discuss, during the hearing, any question of fact with counsel appearing for any of the parties.

Although the present Act provides that the judge shall be assisted by two assessors, who are reputable medical practitioners appointed by the Governor in Council, no question of fact has ever yet been referred by the judge to the assessors at any hearing of the tri­bunal. The result is that these men, who are paid a fee of approximately £10 10s. a day during the hearing of the case, have not been requested to offer any advice and it is the feeling of the Medical Board that if the judge had referred certain questions of medical fact to the assessors at some of its hearings his decision might have been different. The board has requested, and the Government have agreed, that in future the assessors will not have to wait for the judge to refer questions of fact to them; they will be able to question any witness or bring under the notice of the judge facts they think it necessary for him to know. Whether the judge takes notice of the point so raised is purely a matter for him but at least the assessors will feel satisfied that the judge will have brought before him facts that otherwise might not have been brought out in the evidence as presented by counsel for the parties.

A small provision in the Bill requires a medical practitioner to notify the nearest Government medical officer as well as the Director-General of Health and Medical Services by the most speedy means possible of any case in which he obtains information

indicating an attempted or completed crime or an illegal operation or is called to treat a case of injury from a lethal weapon or a case of strangulation or asphyxiation that he is not satisfied was accidentally caused.

That is being done mainly on the recommen­dation of the Commissioner of Police, who points out that at times it takes at least 14 days for information concerning such a matter to reach Brisbane because the locality is far removed from the capital city, and bad weather conditions with broken telegraph lines, and the absence of rail and air trans­port make communication difficult. In these circumstances the information arrives too late to enable the police to take effective steps to bring the persons who have violated the law before a court.

Briefly, those are the provisions in the Bill. I feel that the proposed amendments, especi­ally the one relating to the expenditure incurred by the board in administering the part of the Medical Act that is its responsi­bility, will enable it to discharge its functions in future without financial embarrassment. The other amendment will be of advantage not only to the members of the medical profes­sion but also to the people of Queensland, especially the one giving the assessors on the Medical Assessment Tribunal the right to advise the judge on medical facts and to ask questions of witnesses so as to bring relevant matters before the judge. The information thus elicited may have the effect of prevent­ing the tribunal from giving a wrong decision.

1Ir. BRAND (Isis) (11.26 a.m.): The Minister has gone to considerable trouhle to give a complete explanation of the Bill, both on the introductory and second-reading stages. The way in which professional misconduct of medical practitioners is dealt with by Act of Parliament is of great concern to the people of Queensland and of importance to the medical practitioners themselves. It is a pro­fession that is held in the highest esteem, and naturally its members are anxious to uphold the traditions for which it stands.

I think we might say that the mai~ object of the Bill is to reduce the expenditure of the Medical Board, which is financed by the payment of registration fees, £2 a year _fo~ a medical practitioner and £3 for a specrahst. The fund thus created enables the board to function. It is questionable, as a matter of principle whether we should endeavour to reduce the cost of policing the services of medical practitioners. The Minister proposes to change the procedure that has been followed in the past, which he contends has caused unnecessary expenditure, and to do it to such an extent that evidence relating to the alleged misconduct of a medical prac­titioner may be taken by a stipendiary ma~is­trate and such evidence sent to the Me~1cal Board for it to consider whether there IS a prima-facie case warranting an inquiry before the Medical Assessment Tribunal. Personally, I cannot see any very strong objection to that procedure.

I believe that there have been occasions when complaints have been made in respect of which medical practitioners have had to

2334 Medical Acts [ASSEMBLY.] Amendment Bill.

travel from the countryside to Brisbane with great inconvenience to themselves and the people requiring medical service in the country. If those complaints were inquired into by a stipendiary magistrate the evidence elicited and sent to the board might obviate not only the cost but the inconvenience that usually follows such a call upon a doctor's services and the resultant disadvantages to the people concerned. If the principle enunciated by the Minister is followed and evidence is adduced by the stipendiary magistrate, an authoritative statement can be submitted by him to the board, which can determine whether there is warrant for itself determining the question. This means, by which the board is relieved of some of its expenses, may be of advantage not only to the profession itself but to the persons who are personally concerned. Therefore, the prin­ciple embodied in the Bill will be of great advantage in the future.

The Bill proposes that the expenses of persons summoned to appear before a stipen­diary magistrate or before the board shall in future be limited to travelling expenses. That of course materially affects the doctor involved. The Minister stated this morning that a complaint may be laid against a doctor quite wrongly but all that he can claim under this Bill is his actual travelling expenses, whieh are a very minor part of his costs. It is known that a medical prac­titioner, when leaving the centre where he may be practising, must provide a locum tenens to carry on his work during his absence. The practice of reimbursing the doctor concerned for those expenses should be continued. I recognise the force of the Minister's contention that if the medical practitioner involved is found guilty of the offence on which he is charged he should not be reimbursed his full expenses. After all, the costs are only a small amount of the expenses involved. The principles of justice demand that an innocent man wrongly charged should not have to pay all his expenses. We have heard the Minister's statement of costs involved in matters already dealt with by the Medical Assess­ment Tribunal. They are heavy. He con­tends that persons who are found guilty should pay those costs, but surely those who are innocent should receive not only their costs but also the expenses incurred in being brought before the tribunal. In this respect the Minister is endeavouring to do a little cheese-paring. He should recognise that a man charged with some offence, no matter who he is, may be able to convince the stipen­diary magistrate that a Jlrima-facie case against him does not exist, that it is a trumped-up charge that has no basis in fact or law. In such circumstances the medical practitioner so charged should be reimbursed the costs that he is compelled to meet in defending his professional honour before the tribunal. I recognise, as I have stated, that it is necessary that the people of Queensland should be amply protected but we do not want to err by making it easy for irresponsible complaints to be made against a doctor-we know that there have been quite a number of

such eases-and for the medical practitioner concerned to be compelled to meet the whole of the costs involved. In such cases, if the medical practitioner is not reimbursed his costs and his travelling expenses, we shall give him a raw deal. In this respect the Bill is not a just one.

I agree that the minor alteration providing for the oolection of a member of the board as chairman when the Director-General and the Deputy Director-General are absent is sound and indeed a very good one. The personnel of the board is such that the men on it could with advantJage to th€! profession and the department preside over the meetings of the board. There is nothing contentious in the provision that it is now proposed to make in this regard.

An important principle arises in regard to the practice that shall be followed by those who constitute the Medical Assessment Tribunal. It is constituted by a judge and two medical practitioners, who are there for the purpose of advising the judge.

lllr. Foley: They are assessors.

Mr. BRAND: They are there for the purpose of advising the judge on matters t.hat come within the purview of medical practitioners.

Mr. Fole,y: The medical facts of the case.

Itlr. BRAND: It is now proposed that the two assessors shall have the right to cross­examine witnesses that may come ,before the tribunal. I believe that we should recognise that cross-examination of witnesses should be done by legal men.

Mr. Foley: As a rule, both sides have counsel there.

Mr. BRAND: I recognise that the opposing parties would be represented by barristers but I do think the right to cross­examine ~ witness should be left with the judge. If the assessors desire to cross­examine a witness they could do so through the judge and not directly; because owing to their limited knowledge of law they may put a question to a witness that may involve or implicate the questions that have been. asked by the judge who has been endeavourmg to bring out certain evidence.

Mr. Foley: The judge gets a knowledge of medicine from the two assessors.

JUr. BRAND: The judge is the expert in law. I believe that the proper person to decide even a question of fact is the judge, after having advice from the assessors. It may be found a dangerous practice to g~ve the assessors the power to cross-examme witnesses or a man who may be charged before the tribunal with alleged misconduct. After all, we must not forget that the Medical Assessment Tribunal has very great powers. It has power to remove a doctor from the register, and so deprive him of the oppor­tunity of earning his livelihood. That is a very great power to give to a tribunal.

Mr. Fol~y: It has the powers of a court almost.

:Medical Acts [ll' APruL.J Amendment BiU. 2335

Mr. BRAND: It can take away his liveli­hood. For that reason the assessors, who are medical men, in my opinion should not have the right.to ·cross-examine a man so charged. If they desire to do so, I think they could with advantage suggest certain questions to the judge. I believe that practice operates to-day.

Mr. Foley: No. They have to sit there like dummies.

Mr. BRAND: We should be able to make it possible for the assessors to submit to the judge certain questions they desire ·to be asked on matters of medical practice. The presiding judge could then frame these questions in a way that would best enable the truth to be obtained. After all, it is a matter of principle in our law at all times and in all things that the person or man charged should have the benefit of any doubt. The judge, being a capable legal man, should frame and put the questions to the witnesses particularly to a defendant, so that thei; rights under our law may be protected.

The board has power also to suspend regis­tration for a specified period and to order the restoration of a name on the register. There is also power to inflict a fine of £100. The new power of granting the assessors the righ~ to _question witnesses cannot be justified, considermg the tremendous powers given to this tribunal. It might mean that some medical practitioner who may be charged will be unfairly dealt with ·hy the assessors. We all know that that right has always been left in the hands of a judge of the Supreme Court of Queensland in order that justice generally may be done. We have implicit faith in the fairness and impartiality of our judges and I feel s~rongly that the new power sought is not as JUst as we would desire it to be.

There is nothing much else in the Bill that can be the subject of argument.

].fr .. WAN STALL (Toowong) (11.45 a.m.): :r'hiB Is a very: ~hort Bill but contains very Important proVIsions and it should be debated with a view to arriving at what will best serve the public of the State.

The first principle provides for the con­tingency arising from the absence of the Director-General and Deputy Director-General of Health and Medical Services from a meet­ing of the board. It is merely a machinery clause and is necessary, having regard to the purposes of the parent Act. Some such pro­vision should have been in that Act but it is not and this is the time to remedy the omission. I do not propose to say any more on that principle than that I support it.

The next principle arises from the proposal to make arrangements to obtain statements and . evidenc~ by the . agency of stipendiary magistrates m cases m which the witnesses are located in remote places. We see there really t~e extension of a c~mcept that is well kno~ m all systems of JUstice-the taking of eVI_dence on commission. That is really what 1t amounts. to. Frequently in this city counsel are appomted by the Supreme Courts of other States or countries to hear witnesses

1946-4K

who live in Brisbane, to take their evidence, and submit it to the authorising tribunal. Of course, that is a very useful expedient and one that really reduces costs and incon­venience. The principle is quite sound, but I have a number of criticisms to make in. regard to it, particularly as to the method by which it is incorporated in this Bill.

When a charge is made against a medicai practitioner in a small country centre it is a very notorious and important event in the life of that community. For instance, take a doctor practising at Mt. Isa against whom a charge of professional misconduct :is made to the Medical Board. Under this Bin the board can refer the matter to the stipendiary magistrate stationed at Mt. I sa.

The board asks him to ·gather the evidence from the witnesses, who are in the town, and submit the evidence to the board. That is an event that would give rise to a great deal of interest in that small community and in all othe-r communities of the size I have in mind. It is trite to say that a charge of pro­fessional misconduct can easily be trumped up by somebody who has a grudge against a doctor. If that happens public memory often does not recall whether the charge was sus­tained or dismissed; what the public will recall is that Dr. So and So was up before the Medical Board and charged with pro­fessional misconduct. The very bringing of the charge against the medical practitioner is in itself likely to damage his reputation considerably, even though he beats the charge.

Mr. Devries: That will apply in every walk of life.

Mr. WANSTALL: That is so, and that leads me to the point I wish to make. That difficulty is accentuated when the hearing takes place in a small local community where everyone knows the person concerned and everyone knows what charge is being investigated by the stipendiary magistrate.

Whilst I have no strong objection to the Medical Board's being able to avail itself of the services of stipendiary magistrates in the collection of evidence, I do suggest that there should be some safeguard of secrecy at that stage of the proceedings in order to protect the reputation of a medical practitioner against whom a false charge is made. It does not matter so much in Bris­bane, especially having regard to the present system under which the Medical Board carries out preliminary investigations in camera. There is no publication of proceed­ings against a medical practitioner under the Act until the charge is brought before the Medical Assessment Tribunal and the practitioner is arraigned before it.. That is the first occasion on which the public beco'?le aware that the practitioner is charged with professional misconduct or any of the o~her allied offences under the Act. The Medical Board makes these investigations and inquiries in camera, behind closed doors so to speak, and that is an essential. safeguard against damage to the reputatiOn of 3;ll innocent medical practitioner, but there 1s

2336 Medical Acts [ASSEMBLY.] Amendment Bill.

nothing in the principle outlined that in any way ensures that that secrecy will be main­tained when the stipendiary magistrate is investigating the charge.

Mr. Devries: Would professional jealousy go so far as to lay a trumped-up charge~

1Ur. WANS'fALL: It need not be pro­fessional jealousy; it may be a disgruntled patient who brings the charge.

Mr. l''oley: The Minister must first of all be satisfied that such proceedings are neees­sary.

Mr. WAN STALL: But suppose the Minister is satisfied that they are.

Mr. Foley: The board must have a strong case before the Minister will be satisfied.

Mr. WANSTALL: Even so, does the Minister suggest that he is in a position to say whether the medical practitioner is inno­cent or guilty until he has heard the evi­dence~

Mr. Foley: No, but he can say whether . it warrants investigation.

Mr. WAN STALL: But why not have that investigation carried out in camera, as is done by the Medical Board in Brisbane, particu­larly in a small local community in which the doctor is probably the best known citizen~ Why accentuate the harm that may occur to him, when he may subsequently be found innocent of the charge~ Why not write into the Bill those safeguards that would protect a medical practitioner at that stage from the harmful effects of publicity, particu­larly if he practises in a limited area~ After all, that is what the Medical Board '1oes, in fact, do in Brisbane. It does not give any publicity to the proceedings that come before it until it has made up its mind that there is a prima-facie case on which to charge a medical practitioner before the tribunal.

Mr. Devries: But only a professional man would make a charge against a pro­fessional brother.

Mr. WAN STALL: Not necessarily. The hon. member is dealing with one particular way in which a charge may be brought. Under the Act a patient has the right to bring a charge, and I have personal experience of a ease in which a patient did make a charge, a charge that was subsequently dis­missrd.

Mr. Kerr: In some parts of Queensland publicity is given to the case and in other parts of Queensland it is not.

Mr. WANSTALL: That is so. It does not operate fairly. The Minister would not weaken the provision in any way if he accepts the suggestion I am putting up. It would be a trage{!y if we permitted circumstances to arise in which any innocent person could suffer h8rm as a result of a charge brought against Jrim. The publicity of the charge--

Mr. Foley: The same argument applies where a person is charged before a court.

Mr. WAN STALL: A charge comes before a court ollly wllere there 1s pnma-tacie evi­dence to support it, but in this case, when the Medical Bo:;trd makes up its mind that there is a prima-facie case for a charge--

Mr. Foley: No. A case comes before the court with the object of establishing whethn a prima-facie case exists.

ll'Ir. WAN STALL: That is so, but the Minister misunderstood me. The police are prima-facie satisfied. Until the Medical Board decides that there is a prima­facie case there is no publicity under the Act as it stands at the moment, and the publicity occurs only when the charge is brought before the Medical Assessment Tribunal. Then it does not matter so much, because at all events we have had some sort of investigation by a statutory body, the Medical Board, which is satisfied that there is sufficient evidence against the doctor con­cerned to justify his being charged publicly. That is all right. According to the Bill, the publicity might occur before the board had decided that there was a prima-facie case . I want the Minister to distinguish between the tribunal and the board. 'l'he board does not make any charge under the Act unless it is satisfied that thrre is a prima-facie case and until it reaches that decision no publicity is given to the charge.

Mr. Foley: There may not be under the Bill either.

Mr. WAN STALL: There may not be but there should be every safeguard. It is time that we stopped legislating on this hit-and­miss principle that something may or may not happen. If there is a danger we should gua1·d against it, and unless we do that we are not doing our job as legislators. That is why I ask the Minister to accept my sug­gestion. So far as the actual hearing before the stipendiary magistrate is concerned, I think it would enable the person charged to have a very much fairer hearing than he gets under the Act when he is charged before the Medical Board. I have had some experience in defending a medical prac­titioner charged before the board and before the tribunal, and I want to say that so far as the proceedings before the Medical Board are concerned when presided over by Sir Raphael Cilento they were a travesty of jus­tice. In saying that I do not want to be associated with the extravagant charges made against Sir Raphael Cilento earlier in the session bv the hon. member for Munding­burra, but I· do want to point out that there is absolutrlv no chance of getting a11 impartial and fair investigation in the intere·sts of a person charged before the Medical Board as it now conducts its busi­ness with a view to deciding whether there is a prima-facie case.

Let me illustrate what I have in mind by telling some facts. The medical practitioner who is charged has no riqht to cross-examine anv of the vvitnesses who may be called !i'!l'ainst him. That is the first ·reason why

Medical Acta ( 11 .APRIL. J Amendment Bill. 2337

I say that the proceedings before the board are a travesty of ju1tice. The medical prac­titioner is denied the right of cross-examina­tion, and when I say denied the right I say specifically and positively that he is denied the right because, representing a medical prac­titioner before the board, I claimed the right to cross-examine witnesses called before the board and the chairman ruled that I had no right to cross-examine the witnesses although he did permit me the ineffective and unsatis­factory privilege of submitting to him ques­tions that he would put. The plain fact is that the board does not permit a medical practitioner the right to cross-examine wit­nesses called aganist him. That is No. 1 point.

No. 2 point is that the board is not in any way bound by the ordinary rules of evidence. That is not an unmixed blessing because it permits the board to investigate a charge fully, but at the same time it is tragic that there is such loose conduct of the investiga­tion as does in raet go on. I know from my own personal experience of a case in which the board acted on third-party hear­say evidence-that a certain person told the board that his wife had been told oy a doctor in a certain town certain things. That is the sort of evidence that the board acted on and no evidence was called from the doctor whose opinion was put before the board as a reason why a certain person should be charged. That doctor was not called, but a person called could express an opinion, not his own but that of some third person down the scale, and so on. That is the sort of thing that goes on before the board pre­side-d over by Sir Raphael Cilento. I make that point particularly for this reason, that I do not blame the mrdical men on the board because thev are not well versed in the proper way of conducting judicial inquiries. They are medical experts purely and simply, not lawyers, not trained in the discharge of judicial functions, but Sir Raphael Cile-nto at least has the theoretical qualifications of a barrister of the Supreme Court of Queens­land and so I think that the responsibility should be pnt at his door and not at the door of the medical experts on the board.

I do not know how the board conducts its proceedings when it is not presided over by Sir Raphael Cilento, but I do hope, in the interests of justice, that there is an improwment from what was my experience. I am not joining in any extravagant attack on Sir Raphael Cilento when I bring these matters before hon. members,,

lUr. }'oley: A medical practitioner is brought before the board not merely for a penalty to be imposed but only to bring out certain facts EO that they can be presented to the tribunal.

Mr. WAN STALL: Its functions are some­what T'imilar to the functions of a stipendiary magistrate when hearing evidence on an indictable offence. He mnst satisfy himself whether there is sufficient evidrnce on which to commit the person charged for trial. The proceedings of the Medical Board should

accord precisely with proceedings before a stipendiary magistrate in relation to a man charged, say, with stealing, which must eventually go to the Supreme Court, when the person so charged goes to trial. That is the function of the Medical Board-to investigate complaints, hear evidence, and decide whether there is a prima-facie case against the accused person. That is the function of a magistrate in relation to a person charged with an indictable offence. He does not attempt to inflict a penalty but merely hears the evi­dence on the charge or charges. All he does is to hea·r the evidence put before him, hear the cross-examination on behalf of the accused person, as well as any evidence that the accused person may give, and decide whether there is a prima-facie case. If he comes to the conclllB'ion that there is, he then commits the accused person for trial before the Supreme Court. So the functions of the Medical Board should accord entirely with the functions of a stipendiary magistrate hearing an indictable offence. It is not an answer to my charge to say that the board does not decide the charge finally.

Mr. Foley: The board dismisses a lot of cases.

Mr. WAN STALL: So does a stipendiary magistrate.

Mr. Foley: You only quote one case you happen to know. You have not quoted any that have been dismissed.

Mr. WANSTALL: It is the board's duty to dismi,s those cases wherein it considers the evidence offered is not sufficient to sup­port the charge. No tribunal could be jus­tified in deciding one way or the other on the evidence put before it in the case before the board to which I referred. The evidence tendered was third-rate hearsay evidence, and no cross-examination one way or the other was allowed.

I was dealing with the Minister's inter­jection that the board does not decide. It is true that the board does not decide, but it.s duty is to make up its mind wh ther a prima-facie case has been made out. It should have the opportunity of making up its mind on reliable evidence, not on second-rate or third-rate hearsay. When I say it will not be an unmixed blessing that a stipe-ndim:J magistrate has been called in as part of t_h1s judicial arm, I wish to illustrate by s'aymg that when a person iR before a: stirendiar;v magistrate he will get a better opportunity of defending himself than he has obtained before the board itself, so far as my experi­ence goes. As I have pointed out, it is not the acquittal of the charge or conYiction on the charge that sticks in the public mind. Ask a man in the street a fortnight or a month after a charge has bPen hearrl whether the accused got out of the charge, and he will not be able to tell you, but he will know that the doctor so charged before the board or tribunnl wns charged with professional mis­conduct. That is· where the dn'maQ'P occurs when a man is innocent. Therefore the board should leave no stone untumed in its inquiries and investigations with a ,.i~w to

2338 Medical Acts [ASSEMBLY.] Amendment Bill.

deciding whether there is a prima-facie case, because once it comes to that decision the whole matter becomes open to the public and they know that the doctor has been charged before the tribunal. Therefore, it is of great :importance to innocent practitioners against whom unfounded charges may be brought to earry out a: proper judicial inquiry as to the sufficiency of the evidence brought against them before the board.

Itir. Devr'ies: Do you say Dr. Barlow's future is ruined because of the action taken against him~

Mr. "lYANSTALL: His is an different case. He was charged eriminal offence.

entirely with a

Mr. Devries: He has been acquitted.

Mr. WAN STALL: He was not acquitted. A nolle prosequi was entered by the Crown in his case. Here is the point. Dr. Barlow was charge-d in the Supreme Court. A magis­trate heard all the evidence against him. His eounsel had an opportunity of cross­examining the witnesses and the evidence elicited to support the maximum offence the Crown could bring against that doctor. There was a proper judicial inquiry before the stipendia'ry magistrate as to the evidence that could be brought against that doctor. It was only then that he was charged and com­mitted for trial. Unless that position is granted the Medical Board becomes a police­man, not a judicial body. If it merely carries out ex-parte investigations and endeavours to eollect evidence concerning a person of whom it has had a complaint it is merely perform­ing the functions and duties of an officer of the Criminal Investigation Branch.

I am submitting that it is only fair to an innocent person to correlate the function of the Medical Board with those of the stipendiary magistrates rather than those of the Criminal Investigation Branch. Some­body has to collect the evidence. There is some confusion under this Act ~tween the functions of a judicial officer and a police officer.

The next principle referred to is that by which it is propo;;ed to limit the amount given to an innocent man for his travelling ''xpenses. That I must oppost most strongly because I think it is very unfair that an innocent man against whom a false charge is brought is limited to receiving his travel­ling expenses only.

Mr. Foley: That is all that was intended ilriginally.

Mr. WANSTALL: If it was intended originally I should have opposed it as much then because I think it is wrong. In regard to all other tribunals, the witness called to gh-e evidence receives not merely his travel­ling expenses but all reasonable expenses that he incurs in coming to the place to give Bvidence. When it is necessary to serve a subpoena on a witness in another State it is necessary to invoke the provisions of the Commonwealth Service and Execution of Process Act. Before you can issue the sub-

poena you have to go before a Supreme Court judge arid you have to satisfy the judge­and the Crown has to do this too-that the person is going to suffer no loss in connection with his being brought to Queensland to give evidence. 'l'he judge has to be satisfied either that he has been paid or arrangements have been made to lodge in his bank an adequate amount to cover his transport and his maintenance here and any reasonable expenses he is put to. That is a principle that has been enforced and it is a principle that governs witnesses' expenses in all types of matters before the court, but not, accord­ing to the Minister, in regard to matters that come before the Medical Board.

I would point out that not only does this pro.ppsed principle affect the person charged, but it may affect an absolutely disinterested third person-somebody who has nothing at stake and who has no interest in the pro­ceedings but who merely happens to have witnessed something. He is called to give evidence and may suffer loss, of his private estate, his personal money, his employment, or he may lose his wages; and all he gets is travelling expenses. Surely that is not a fair principle. In all seriousness let us at least be fair to the disinterested third per­son who may be called. Surely there can be no argument that could possibly support such a proposal.

The a'rgument used by the Minister is that the Medical Board is either bankrupt or in danger of going bankrupt, and therefore wit­nesses should not receive an adequate reward or compensation for their loss when brought before it. They do not want to make a profit out of it. In fixing the costs the board or the tribunal would in no circumstances permit a witness to make a profit. They would recoup him for his out-of-pocket expenses. When a: Minister goes on tour in the country on Government business he is paid travelling allowance to recoup him for his expenditure.

Mr. Devr'ies: A reasonable allowance.

Mr. WANSTALL: Yes, that is only fair and reasonable. When the public servant is sent on tour in the country he is paid so much per day, in accordance with the scale of salary he draws in order to meet the amount he has to spend.

A Government Member: So are the members of the Queensland People's Party.

Mr. WANSTALL: When the members of the Queensla'nd People's Party go on circuit they bear most of their expenses themselves.

I mention those things to show that it is a universally-accepted principle that when you are sent on the business of your master or of somebody else the only fair thing to do is to see that you do not suffer loss as a result. But the principle being- introduced by the Minister will result in causing innocent disinterested third parties to bear their own expenses. Suppose one of those necessary witnesses is a medical practitioner­a colleague of the person charged-and he is brought from Toowoomba, Gympie or

Medical ActB [11 APRIL.] Amendment Bill. 2~39

Maryborough to Brisbane to give evidence. He has no interest in the proceedings except that he happens to have examined the patient who is concerned in the charge. He has to leave his town for two or three or more days to come to Brisbane and give evidence--,­probably much against his wishes because he does not want to be brought into it at all. Then he has to pay a locnm. which will cost twenty guineas or more a week. But under this principle, if it goes through, that dis­interested witness will have to appear and pay for the cost of a locum tenens out of his own pocket. Why, in the name of all fairness, is that principle being written into this Bill~ I must protest against it very strongly.

I now wish to pass to another a'spect. If a witness is tendered reasonable travelling expenses he is under legal compulsion to attend at the court to which he has been summoned, but he need not give evidence unless satisfactory arrangements have been made to recoup him for his necessary expenses. I foresee this set of circumstances: a witness will dutifully attend the board or tribunal to which he has been summoned as a result of receiving his travelling expenses; he will go into the witness box, but he will not be sworn and will not give any evidence because no arrangements have been made to make up to him the rest of the unavoidable expenses to which he has been put, and no court in the British Empire will compel that witness to give evidence in these circum· stances. The court would act on the universal principle that a: witness must be satisfactorily recouped. Mind you, Mr. Speaker, so long as a witness under subpoena attends the court he has complied with the obligations that the serving of the subpoena and the tendering of travelling expenses have placed upon him. Consequently, the Minister, whether he likes it or not, may find that his board will be compelled to tender reasonable expenses to these witnesses. And why should it not¥ Why does the Minister argue that because the board is bankrupt and its income does not run to the figure it would like, other citizens of the State, completely disinterested persons, should lose as the result~ If ever there was, an example of an endeavour to get justice on the cheap, here it is.

Mr. Folen There is another solution: that is cutting down barristers' expenses.

Mr. WAN STALL: Barristers' expenses do not enter into this argument at all, because the witness does not get barristers' expenses­he does not pay them.

According to the Minister the boa'rd has had to pay some fairly large amounts that the hon. gentleman read out. In virtually every one of those cases the Minister made this eomment, ''The tribunal's decision was Upset when the charge was brought before the Appeal Court,'' or ''The tribunal dismissed the charge." In those instances I think the board was extremely fortunate that it did not have to pay the costs of the innocent person it charged. That would be the ordinary rule in a civil matter. If you bring a charge

against a person or sue him and you do not succeed you pay his costs as well as your own. The board is very fortunate, in fact it is darned lucky that it did not have to pay the cost of the medical practitioners against whom incorrect charges were brought. It shows at least that there is no room for complaint on the lines on which the Minister has been briefed by the Medica:! Board. If the board brings a charge a·gainst a medical practitioner that it cannot sustain at least it should not be heard to complain if it has to pay its own expenses; it did it with its eyes open. Theoretically it should have done it only after having satisfied itself that there was prima-facie proof against that person. It has no right, authority or duty to bring a charge against a medical practitioner unless it is satisfied that there is at least sufficirnt evidence in its hand to amount to a prima­face case. A prima-facie case means a case that unless it is rebutted will result in the conviction of the person concerned.

If the board does find itself obliged to pay costs beyond its means perhaps the answer should not be to endeavour to get justice on the cheap by making other parties subsidise its costs, but by exercising its functions a little more carefully and considering the explanation of the medical practitioner concerned or the witnesses, and perhaps then the case woulil not collapse as it subsequently collapses when it comes before the Medical Assessment Tribuna:!.

Mr. Foley: In that case they give them reasonable travelling expenses.

Mr. WANSTALL: The Minister does not give them anything else. In that case he wants to get justice on the cheap and that is never a good thing. The Medical Board is financed by levies on medical practitioners. The justification for the existence of the board is the interest and welfare of the public genera:Ily. It is not there to promote, safeguard or uphold the interests of the medical profession or any one section of the community. It operates purely and simply as the watchdog of John Citizen, his wife and family. That is all that justifies its being there. It is performing a public duty, which is carried on in the interests of the people in the community, and it renders a service to the community. That is the duty placed on it.

The only fair principle is that the people to whom that service is rendered should bear the expense of administration and the per­formance of that public function. The Minister would be well advised not to listen to the urgings and promptings of the depu­tation that waited npon him and whose brief he carries in introducing this Bill, but to look at the question from the larger view­point of the public intPrest and to say that this is a service that the Medical Board is carrying out on behalf of the Government, to police the conduct of the medical pro­fession of the State in the interests of the public. It is the public who benefit from good administration by the Mooical Board, just as it is the public who suffer from bad

2340 Medical Acts [ASSEMBLY.] Amendment Bill.

administration by the Medical Board. That being so, the only proper way of :financing the Medical Board is from the public purse. If that were done we should not be here rebutting the argument put forward by the Minister that justice on the cheap is justi­fied. It can never be justified.

The next principle referred to by the Minister is an extension of the duty of the assessors. The principle of having assessors in courts sitting as part of the judiciary or performing functions allied to those of the judiciary is well known in the British sys· tern of justice. We have admiralty assessors who sit in admiralty jurisdiction in toases that come before the Courts of Admiralty, and they perform a very useful and necessary ser­vice in advising the admiralty lords on tech­nical matters brought up in the cases that come before them. We have them also in other types of litigation of a technical nature; so the principle of assessors on the Medical Assessment Tribunal is quite sound. The Minister says that up to date the judge of the tribunal has never referred one question of fact to the assessors for advice. I know the Minister is quite sincere when he makes that statement, but it is not correct. If the Minister refers to the Queensland State Reports of 1942 he will find that in the Michel ease Mr. Justice Macrossan referred one question of fact to the assessors and obtained their opinion on it. I merely men­tion that to show that when the judge did feel the need of the advice of his assessors he was willing to refer the matter to thPm and to receive their opinion upon it. The Minister has apparently overlooked that fact. He cannot dispute it because in setting out the special case Mr. Justice Macrossan refers to the incident.

Whether or not the judge does refer ques­tions of fact to the assessors, I am glad to notice that the Bill does not attempt to remove from the judge the sole and exclusive authority to decide questions of fact and of law. Although the duty of the assessors is being wide·ncd in the sense that they are being instructed legislatively to advise the judge on their own initiative, on matters on which they think he should be advised, the judge is still perfc ctly fre-e to reject their advice if he does not want it, and that is as it should be.

I do not agree with the Deputy Leader of the Opposition when he objects to giving the assessors the· right to cross-examine witnesses. In practice I have no doubt that the judge on the Medical Assessment Tribunal would accept suggestions from the assessors that certain questions should b0 put to the wit­nesses. Any judge who is keen in the dis­charge of his judicial duties will himself ask questions of any witness who comes before him, and I am quite certain that if the judge constituting the Medical Assessment Trirunal wanted to ask technical questions of a witness he would arm himsr If first of all by a private conversation on the bench with the assessors. Now that the assessors themselves are being given the right to ask questions directly, I think th0 proceedings will be shortened and probably result in the framing

of technical questions in their proper set­ting in such a way as to be readily under­stood. One of the great difficulties counsel has in cases of that kind is to absorb in the short time available to him a complete under­standing of the technical terms and some his­tory of the disease or complaint that is being investigated or is incidental to the com­plaint being, heard. In the case in which I was concerned I had to read three large teXJt­books on the complaint in about a week and to absorb much general knowledge of the nature of the disease concerned in the charge so that I could put reasonable cross-examina­tion to the medical witnesses.

The proposal to permit the assessors them­selves to ask questions improves the effici­ency of the tribunal, but here I have one very strong objection and it is to that prin­ciple which permits assessors to discuss with counsel engaged in the case any matters that may arise in the course of it. That is a vicious and bad principle and is introducing the principle of extra-judicial evidence, evi­dence that an assessor may gather from a private conve•rsation.

Mr. Foley interjected.

Mr. WAN STALL: It does not say so, but I hope that the Minister will put that safeguard into the Bill. An assessor could talk with ·counsel for the prosecution or counsel for the defence in the pub. or in the dub, in any part of the yard, or the court, anywhere that he liked.

Mr. }'oley: You are stretching it.

Mr. WANSTALL: It is not stretching it; there is absolutely no restriction in the Bill. It says that the assessor may discus,s with counsel any matters arising out of the pro­ceedings before any tribunal. It does not say that he may discuss any question of fact while he is actually sitting on the tribunal, and proceedings b( fore the tribunal may extend over several days. That principle is a very bad one and I hope that the Minister will tighten it up.

Mr. J. F. BARNES (Bundaberg) (12.26 p.m.): I rise to oppose the Bill. The very fact that so many stories have been told about the Medical Act prompts me to say that one has to be on one's guard against it. 'The entire Medical Act, so far as I am personally concemed, is not in aceordance with the principles of British justice, and as I pro­ceed with my speech I shall stress various points to establish the fact. When the· Medical Act was before the House both the Minister and the hon. member for Baroona told mimer­ous untruths about it. There mllst be some reason for that. I am not going to content myself with simply making such an assertion, but I shall quote many of the things that were. said. At this stage I will be charitable so far as the Minister is concerned and say that he did not have the· n ce' '~'rv knowledge' to :fit him to bring in the Bill now before us. I am being charitable to the Minister at this stage in saying that he did not have the necessary knowledge to bring this Bill before the House. In other words, he did

Medical Acts [11 APRIL.] Amendment Bill. 2341

not understand 'the full purport of the Qriginal Act, otherwise he would not have made the statements that he did on the introductory stage of the Bill. It may be that the Minister has been prompted by somebody and is deliberately misleading this Hou' e. If the Minister is innocently misleading this House that is no excuse, but he is in duty bound to know the facts before he introduces the Bill. On this occasion, the evidence that I shall submit will prove conclusively that the Minister did not kl•ow th' fn~ts, but, as I said before, I shall be charitable towards him and say that there is no doubt that he has not got the capacity to understand the Medical Act so as to realise what bearing this Bill has on it. On the other hand, it may possibly be that certain parties had a conference with him before he introduced the Bill, that they deliberate~y misguided him, knowing that any Bill introduced into Parliament at this stage would not be severely debated. This Bill would have been more severely debated had it been introduced earlier in the session, more fully debated than it will be today at the end of the session.

The Minister, in answer to a question asked by the hon. member for Albert, Mr. Plunkett, at pa"' 209:1 of '' H ansard'' and a<:rain at page 2101, whether if a medical practitioner is able to prove his innocence his expenses would be paid, replied, "Yes." That is the first untruth.

1\fr. SPEA T\F.R: Order! The hon. mem­ber is not entitled to say that the Minister told an untruth.

Mr. J. F. BARNES: PerhaP's then I Rhould say that the Minister misled the House.

Mr. ~WEAKER: Order! The hon. mem­ber will have to withdraw that remark.

J[r J. }' JH ~NES: I will withdraw that remark and ask you, Mr. Speaker, how I should express what I want to say.

::\Ir. !>11'17 "~ Xfo'"J? • 'f'he hon. member can­not refer to the Minister in that way. There are plenty of words in the English dictionary to enable the hon. member to express himself.

}lr, J. F. BARNES: I will continue from where I left off. Perl).aps I should quote from Queensland Law Reports, 31 January, 1942.

~fr. l'n}PY: What principle are you deal­ing with now~

)fr. ;r_ F. R\R~E'l: Well. let me deal with the matter in greater detail, and let me now refer to pages 2093 and 2101 of '' Hansard.'' I am going to quote the Minister's own words so that he will know what I am talking about.

)f:r. l>'f''l'v ~ Thrre is a proper stage at which to do that. There are certain principles you have to deal with at this stage.

llir. ,J F lU RNES: I am sneaking to the principles. You are not the Speaker.

Mr. SPEAKER: Order!

Mr. J. F. BARNES: The Minister made statements in reply to the hon. member for Albert which are to be found at pages 2093 and 2101 of "Hansard." At page ::081! the hon. member for Albert asked-

" If a medical practitioner is able to prove his innocence his expenses will be paid~''

Mr. Foley replied­''That is so.''

Now on page 2101 the same question was asked by Mr. Plunkett. He said-

'' I should like some clarification by the Minister of the point whether the Bill con· tains provision for meeting the expenses incurred by a doctor who is brought before the tribunal and proves his innocence.''

Mr. Foley replied-'' That is so; reasonable travelling

expenses from where he came to the place of hearing.''

That is wrong.

Mr. Foley: The Act provides for that.

Mr. J. F. BARNES: The Act does not provide for that. To prove that I am now going to quote from the Queensland Law Reporter of 31 January, 1942, wherein is recorded the decision of the Supreme Court of Dr. Michel versus the Medical Board of Queensland. This is what we find is con­tained on page 2 of that report-

" the appelate court had no power to ordrr tne respondent board to pay the appellant's costs. of the proceed­ings before the Medical Assessment Tribunal.''

There is no provision in the Medical Act to allow a doctor who is successful before the Medical Assessment Tribunal to receive his expenseS! in any direction. Yet. the Minister tells this House not once but tWice that there is. When the hon. member for Albert asked a question on that point at page 2093 of ' ' Hansard' ' he got his answer as I quoted, but he wanted it clarified, and again asked the same question, and the Minister again told him ''Yes.'' When a Bill is introduced and so many untruths are told about !t, _not only now but back in 1939 when the prmc1pal Act was introduced, there is grave reason for doubt.

We will proceed to the second misstate· ment made, whieh is found at page 2095 of "Hansard." The hon. memb~Cr for Wind· sor was speaking. I will quote exactly what happened then. He said-

'' The next question is the appointment of a chairman of the board. The Director· General, I take it, is the permanent chair· man of the board, but he is out of the country. Is the Deputy Director-General the permanent chairman at present .... the Minister did not tell us that."

The hon. member for Wan·ego then came into the picture in his ignoranr2o and said­

'' You were in the House when the Bill was passed and you should know. ''

Mr. SPEAKER: What is the page tbe hon. member is quoting from~

2342 Medical Acta [ASSEMBLY.] Amendment Bill.

Mr. J. F. BARNES: I am quoting from • 'Hansard'' of this debate, not only of this session but of this debate--1946. The hon. member for Windsor goes on-

" Babbling brooks do not run except in stormy weather. I should like the Minister to make it quite clear that in the absence of the Director-General the Deputy Director-General shall act for him, and that in his absence the members of the Medical Board have "the right to appoint their own chairman. ' '

Mr. Foley interjected-'' That is the position.''

That is, that members of the Medical Board have the right to appoint their own chair­man.

The hon. member for Windsor goes on further-

' ' The hon. gentleman did not say that. I wanted that fact made clear.''

He had plenty of opportunity of saying whether he had made a mistake but he did not do so. I will quote section 8, sub-section (4) of the Medical Act which confirms what I am saying. It is to be fDund in the Queens­land Statutes for 1939-40 and reads as follows:-

'' The Governor in Council may remove any member of the board, including the president, from office and, in the event of a vacancy occurring in the office of presi­dent either through removal as aforesaid or otherwise howsoever, the Governor in Council may appoint a person who need not be qualified as hereinbefore prescribed to the president of the board.''

The Governor in Council has the power to appoint the president of the board, despite the fact the Minister told us differently. That proves that the chairman of the Medical Board is not elected by the Medical Board, but appointed by an order in council. Since that time an order in council was issued on 20 June, 1942, when the ExtJcutive Coun­cil appointed police surgeon Dr. Thompson when Cilento could no,t attend for any reason whatever. The Executive Council knew the position even though the Minister did not and legally did what the Minister in introduc­ing the Bill said could not he done.

Now we come to the third point where the Minister wrongly put his facts before this House, and it is the most serious of all three. It is to be found in "Hansard'' at page 2093 and further, in answer to Mr. Pie at page 2096. On the latter page Mr. Foley is reported as saying-

" No case has occurred in which the judge has ever asked the assessors to advise him on questions of fact.'' I will quote an incident that happened in

the Dr. Michel case, where the principal witness said that he (Dr. Michel) did not examine her with a speculum, that is, the principal witness, on whose evidence Dr. Michel wa~ deregistered. This is very important from the assessor's point of view. Dr. Michel said ''I examined her with a speculum. I did not diagnose cancer. I diagnosed hypo-ovarian-

ism.'' I want the House to take notice of this witness-the woman who was responsible for having Dr. Michel deregistered. She made a specific statement; and I will point out later that this statement must have been a lie because the court on this occasion only believed Dr. Michel.

Mr. Foley: Be sure you do not mix up the court with the tribunal.

Mr. J. F. BARNES: I am talking about the case before the court: I am talking about the case that went to appeal before the Full Court. The tribunal first of all belitJved Dr. Michel and the judge who' constituted the court believed Dr. Michel that there was a speculum used on the woman; but the woman herself--

Mr. SPEAKER: Order! I may as well put the hon. member right on this discussion. I am of the opinion that the discussion on the Dr. Michel case is outside the scope of this amending Bill. The Bill being considtJred by the House amends the principal Act in four details only, vil'.-in regard to the power of summoning witnesses; the constitution of the Medical Assessment Tribunal and its duty; certain duties in regard to Government medical offictJrs; and the election of a mem­ber of the board to act in the absence of the Deputy PresidtJnt. Any debate outside the ambit of these matters would be out of order. I ask hon. mtJmbers to remember that.

I want to go further in regard to the Max Mich€1 case. It has been the subject of a debate already during the session. The matter was fully debated in the House on the Resolu­tions of Supply on 13 November last; and as it is a well known and generally accepted rule that the same qutJstion shall not be debated twice during the same session, I feel that I cannot allow the hon. member to enter again into a detailed discussion of the Max Michel case.

It is laid down in "May" that it is a wholesome restraint upon members to pre­vent thtJm from reviving a debate already concluded.

I ask the hon. member to deal with the p"inciplrs of the Bill.

Mr. J. F. BARNES: I have every inten­tion to abide by the laws of this House. I am not quoting and I have not quottJd any­thing that has previously happened in this House. I am quoting something that did not arise in any previous debate. The word ''speculum'' has never been used by me before. I therefore claim that I have a right to discuss something that has not been dis­cussed in this House before.

Mr. Foley: Discuss the Bill.

Mr .• J. F. BARNES: I am discussing the Bill and I am trying to throw light on the Bill and show that behind it there may not be a good motive. I am trying to point out that the Minister, in introducing the Bill, has misled members when answering these ques­tions. I am entitled to do it as the hon. member for Bundaberg or as the llon. member from Timbuctoo, but I am not entitled to

Medical Acts (11 APRIL.] Amendmem Bill. 2343

c1iscuss things that have been discussed before. I am not attempting to do that in any shape or form. I have religiously prepared my brief in such a way that I shall not fall foul of Mr. Speaker or of the Chairman when it goes into the Committee stage.

When I rose to my feet I said I was against this Act and being one of the King's subjects I have the right to say why I am against this Act, provided I do not foul the rules of this House. I have no intention of doing that. Now, to prove the charge against Dr. Michel it had to be proved beyond all doubt that he used a speculum and in doing so he was in a position to see that the witness did not have a cancer of the cervix, which was the charge ; otherwise, if he diagnosed cancer of the cervix without the use of a speculum he was wrong, but not wilfully wrong, and there would be no case against him. In other words, doctors make mistakes but they bury them, mostly. If a doctor makes an honest mistake there can be no success­ful charge before the Medical Board and in this particular case the doctor in question stated that he used a speculum. The witness said he never used a speculum. To further the position, because there was contrary evidence, to get over the difficulty, the prose­cution used the assessors. How, will be seen by the following, which will also prove the third mis-statement of the Minister. The judge stated, in the special case, that he asked the assessors whether the woman could have had this speculum inserted without her knowing it. The judge asked the assessors this question and this is contrary to what the Minister said to the hon. member for Wind­sor the other day. One of the assessors answered "Yes "-it was possible to use the speculum without the woman's knowing. That is another funny story for Ripley; Ripley should get it. The speculum exhibited was one of an inch diameter in· bore of tube and approximately 2 inches outer measurement and about 5 inches or 6 inches long. The Chief Justice, in the Michel Full Court appeal case said, ' ' This answer of the assessors influenced the lower-court judge.'' For the information of the House I might mention that speculums are of different sizes and a doctor is forced to try several times before he gets the size to fit the vagina and yet Dr. Michel was asked nine and a-half months later if he could remember the size of the sppculum used.

:llr. SPEAKER: Order! The hon. mem­ber is away from the question before the House.

Mr. J. F. BARNES: I am trying to get to the point.

1\!r. SPEAKER: If the hon. member is trying to make a point he should try to link it up with the principles of the Bill, other­wise I shall have to call his attention to the fact that he is drawing away from the Bill.

Mr. J. F. BARNES: The point I am try­ing to get to was that the speculum was later tendered in court as evidence. The prosecution tried to get it tendered by asking

him the size of the particular speculum. It is ridiculous to try to remember the size nine and a-half months later. When a doctor uses a speculum, when he has no nurse, as in this case, he asks the patient to hold it in, as a natural vagina pressure would cause it to slip out when the doctor is forced to let go of it for other purposes; yet this witness said the speculum •~ as not used on her and the assessor said he could have used a specu­lum without the witness's knowledge. That statement of the assessor's must cause a huge laugh among other doctors in Queensland.

I forgot to mention that this woman at no time was under an anaesthetic, therefore she would know that what she was saying was incorrect. As a matter of fact, she remem­bered everything with the exception of what the doctor told her and how much she paid him for this alleged fraud.

At this stage I should like to quote from ' ' Hansard,' '. page 2093-

,' Mr. Maher: Who is to say· that the judge was wrong on the evidence submitted to him~

' 'Mr. Foley: The Medical Board. "Mr. Maher: It is an interested party. "Mr. Foley: In medical matters a board

of medical men is better able to decide than a judge.

''Mr. Maher: Oh no.''' To me that is humorous. As the previ()ua facts show, the opinion of the hon. member for Woot Moreton is correct, and with my experience with medicine I certainly confirm the opinion of the hon. member.

Here let me quote the ' ' American Medical Journal," which throws great light on tke question at this point, because the assessors were asked another question later. They were asked a question on X-ray therapy by the judge. In this particular case, it was with reference to endocrinology. The '' Ameri­can Medical Journal" of 13 October, 1945, says-

'' Endocrine preparations are frequently used unjustifiably because of the current focus on endocrine imbalance as a cauae of symptoms referable to the female generative tract.''

In other words, that means that endocrin­ology is one of the current focuses of medi­cine, whereas in 1939, when Dr. Max Michel was charged, no-one knew anything about endocrinology, as was the case when I spoke here three yoo.rs ago and 12 months ago, bllt the fact remains that the ''American Medieal Journal" of 13 October, 1945, tell us that current medieine is focussed on end•c­rinology.

The assessors in the case in which Dr. Max Michel was charged should have been experts. They were asked this question by the judge and they did not know anything about it. What is the use of having assessors' As the hon. member for Toowong said, in the Admiralty Courts they use assessors and they are all men of expert experience, but we all know there is no such thing as expert medi­cine. There is part-expert medicine in that people practise as specialists, but it is

2344 Medical Acts [ASSEMBLY.] Amendment Bill

entirely humorous to me to consider general practitioners as experts. You know as well as I do, Mr. Speaker, that they bury their dead. Of course, I cannot go into that part of it in detail today.

Not only the assessors but doctors in general did not know what Dr. Max Michel had diagnosed as they did not know anything about endocrinology, and that fact is con­:firmed by the ''American Medical Journal.'' In othe·r words, Dr. Max Michel in dBaling with ~ndocrine gland .dis~urbance 'in Quoonsland, 1s years before h1s t1me, and, for being pro­gressive, he was temporarily struck off the roll as a doctor. Where arB we going to get doctors who will diagnose after that~

Mr. SPEAKER: Order! This is the last opportunity I shall give the hon. member to keep to thB princi pies of the Bill.

Mr. Foley: You are giving a cheap boost to Michel, are you not~

Mr. J. F. BARNES: If I gave him all the boost I could, it still would not be half what he deserves.

WhBn Michel was before the Medical Assessment Tribunal the judge asked the assessors a question on X-ray therapy. It was a very important question, but, as I have previously said, the assessors knew nothing about it. What is the use of a judge's ask­ing supposed experts a question on anything if they do not know~

This is where the danger comes into this case, and I say there is danger: thB assessors should be specialists, renowned men to suit a particular case; that is, they should be somebody at the top of the tree. For argu­ment's sake, take the two highest specialists in Queensland on urology, Dr. Stanley Roe and Dr. Power. Imagine an ordinary general practitioner sitting as an assessor in the court trying to give expert evidence against those two! It is too ridiculous for words! For argument's sake, it is absurd to think that a heart specialist could give expert evidence on the work of an eye specialist. It could happen that one of these assessors could be a heart specialist, while the whole case before the tribunal was something in connection with the eyes. Is it absurd to think that Bven a heart specialist could sit as an assessor on this court to give an expert opinion on eyes~

The trouble with medicine today is that the medical men have not got proper knowledge to qualify them to sit as general assessors. You are forced to bring in a law whereby you bring experts in.

I do not want the Minister to think for a moment that I am opposed to one of the principles in the Bill. I do not oppose the principle of giving the assessors the right to cross-examine, hut there again we could have trouble. Suppose, for th(' sake of argument, that I am counsel for the defendant in a case and I am leadin()' up to a certain question. Unf!er thi, Bill. the assessors will have the Ti!!ht to butt in on me, asking leading qnestions of the witness, and put the witness rh>:ht hack on hi~ feet. He would thoroughly· understand just what I was

leading up to, the point I was trying to make, and so butt in and destroy what might otherwise be good evidence. The doctor has not got a trained legal mind and so is not in the same position as a judge sitting on a bench who, on hearing thB question and knowing from his experience the purpose for which it was asked would keep quiet until the point had been made. This practice of butting in to destroy the value of evidence could be carried on every houT of every day. It tends to destroy the value of evidence that would otherwise come out. I would give this power to the assessor to cross-examine or examine only if he did not have the right to butt in when counsel was trying to estab­lish a certain point.

Mr. Foley: Counsel would be well able to protect himself.

M.r. J. F. BARNES: Counsel cannot pro­tect himself, because it is proposed to give the assessor the right to ask a question of a witness at any stage of the proceedings. I should be in favour of the proposal to allow the assessor to ask a question after counsel had :finished with the witness. In other words, I am in favour of doing this thing correctly, and in doing it correctly I mean that I should not object to giving the experts of the prosecution that right if the defence has some means to counteract a possible bias, because I believe that the :first maxim of justice is that it is better that 99 guilty men should go free than that one innocent man should be convicted wrongly. That means that if the experts of the prosecution and the assessors have that right it should apply equally to the experts of the defendant. It could be argued that the experts could ask the questions through counsel but one who has had any experience in law knows that counsel would not be in a position to understand the importance of the questions, because, in this case, of his lack of medical knowledge and therefore could not follow the importance of the answer as a doctor would. '\V e had con:firmation of that today. The hon. mem­ber for Toowong said that he studied three text-books for a whole week so as to get some knowledge of a certain disease relating to a doctor he was defending. l\Ief!ical men who have studied text-books all their lives or for a great many years are frequently wrong in their diagnosis so what chance has a bar­rister got in one week1 I am refrrring now to the general practitioner. And so I contend that the defendant will not be protected under the Bill simply because his counsel would have the right to ask the questions. At the bar table something will suddrnly crop up, there will be a whisper into the counsel's ear, counsel will not see the impoTtnnce of the question and will not ask it. Even if he asks it and gets an answrr he may not know the value of it. He may miss its importance. If you will give counsel for the defence the ri!!ht to have the 0'{rerts examinrd particularly before the Medical Board then you ·will get over the difficulty that is worrying the Governnwnt and has made them introdur<:l the Rill.

I come now to the provisi0n relatin« to the income received by the l\fcc1ieal Board

Medical ActB [11 APRIL.] Amendment BiU. 2345

from r~gistration fees, which it is contended is not sufficient to mee·t the costs that have been awarded to their witnesses and not in favour of medical practitioners who have been acquitted by the Medical Board, the Medical Assessment 'rribunal and the Full Court of Queensland.

To illustrate a case in point, we should .call it the Arnheim zip·fastener case, a pretty well known case. The Medical Board committed a doctor for trial before the Medical Assessment Tribunal alleging criminal neglect. Fortunately, this time the board informed the doctor about the investi­gations and permitted her to have representa­tion before the board at the inquiry, but not as a right. It did not do so as a matter of right but just as an act of grace, which I contend is wrong. It so happened that an expert called for the defence when the matter was before the Medical Board had the {Jpportunity to see an X-ray film of the <·omplainant. It was upon this film that the \'Omplainant based her allegations and it could be presumed that it would be tendered as an important exhibit by the prosecution. It so happened that a zip-fastener that was in the X-ray film proved the complainant a liar and Arnheim won her case. The impor­tance of the zip-fastener was not discovered, ·either by Arnheim or her counsel, but by an oxpert, Dr. Max Michel, an expert in radi­ology. He was called in on this case on the initial hearing, and on this occasion only by an act of grace. This illustration is only a very small one in comparison with other scientific medical problems. Legisla­tion cannot be based on exceptions. Good legislation should provide the best possible protection against any misjudgments.

Before concluding I should like to point out another very important part of this legis­lation. I refer to an article that appeared in the ''Telegraph'' on 15 February, 1945, to sho\\" the relevant position. A Brisbane solicitor, whom we shall call Mr. X, said that as a member of the Army legal staff he had taken summaries of evidence in connection with the Grovely case. He drafted the charges nnd was instructed to act as prosecutor. He bad interviewed all the witnesses before they went into the witness box and went over their eTidence with them. This was the usual pmdice. This was only to get, as he said, a fuller understanding of the case. After taking the summary of evidence he had :1dvisecl a general court martial. His I-Ionom >mid-

'' I am at a loss to know why you should interview witnesses when the accused were Hot present. It seems that there was an infringement of a judicial principle, that nothing should be done except in the presence of the opposite party.''

That throws a very important light on this (·ase. It so happens that before this Merlical Act v, as introduced the Medical Board coulr1 bring a dodor before it and commit him in his absence or presence, or in the absence of 0xperts or counsel. Therefore, the Medical Board was overstepping its judicial right. That was one of the main reasons why this amending Act came before this House. The

Full Court held that was a right. A litigant in the Magistrates Court has no right of appeal on the facts, only on the law in rela­tion to the facts. He has no right of appeal on the evidence. In other words, if a prima­facie case is set up in the Magistrates Court and the case goes to a higher tribunal and a man is found guilty there is no appeal to the Full Court. That in principle is wrorig . This is not an indictable offence we are dealing with but an offence that might affect the whole career and future of a professional man. He may be charged with an offence that may cause him the loss of £10,000. Why should a man lose £10,000 because this Bill does not give him the necessary protection~ The Bill from start to finish has been intro­duced for the same purpose as the 1939 Act was introduced. The Premier, who was then Secretary for Health and Home Affairs, said when introducing the 1939 Act ''God help the man if the Medical Board is against him.'' He also said-these words that I quote may not be exact, but they are sub­stantially correct-that the accused had the right of choosing an assessor. That is wrong. That also has been mis-stated in other directions in this House. The accused should have the right. The B.M.A. has the right to appoint one of the assessors. The then Minister when introducing the Bill in 1939 said, "God help him if the B.M.A. is against him.'' That is from the Minister him­self. It is something to be taken into con­sideration. In 1939 the hon. member for Ithaca said that the accused had the right to appoint his o;vn assessor. So many untruths have been told about the Act that I am against it.

Mr. Foley: You are "agin the Govern­ment.''

Mr. J. F. BARNES: I am not" agin the Government''; on the contrary, I have been on the Government side when they have brought in sensible legislation. I quote from page' 2093 of '' Hansard'' where the Secretary for Health an cl Home Affairs said, ''No case has occurred in which the judge has ever asked the assessors to advise him on questions of fact.'' Before I quoted from memory; now I quote from '' Hansarcl.''

(Time expired.)

Hon. T. A. FOLEY (Normanby-Secre­tary for Health and Home Affairs) (2.22 p.m.), in reply: I endeavoured to follow the hon. member for Bundaberg as closely as possible--

]}Ir. J. F. Barnes: You have not the ability to do it.

!Ir. FOLEY: I am afraid it is not a question of ability on my part; it is a ques­tion of ability on the part of the hon. member to submit his brief in a proper manner. He argued all over the world, as it were, and only on the few occasions on which you, Mr. Speaker, brought him into line dicl he really refer to the main principles of the Bill at all.

One point he did raise, however, was the assessors' right to question counsel or "itnesses, particularly, as he remarked, to

2346 Medical ActB ~ASSEMBLY.] Amendment Bill.

question counsel. He fears that as a result of giving them that power they might in~er­fere with the sequence of the case being submitted by counsel to the tribunal and spoil counsel's argument or case. I think we can leave it to the average barrister to look after himself, particularly in regard to any ques­tions that may be put to him in any such proceeding before the tribunal. The Bill does give the opportunity to the assessors to ask a question, either of counsel or witness, in order to bring before the notice of the judge facts relating to. the case so that ~ose facts will not be lost sight of when questiOns of law are being argued. That is the main purpose of the provision.

I have been charged with misleading the House on certain points in connection with this Bill. I can assure hon. members that if I have mentioned something that was not quite correct I did so inadvertently and not with the intention of misleading in any way. I never adopt that practice; I think hon. members will give me that credit.

Mr. Wanstall: I gave you that credit.

:Mr. FOLEY: I understand I have misled the House in regard to the opportunity being given to assessors to advise the judge. I myself have been misled as a result of the state­ment of one of the members of the Medical Board who approached me on a deputation and stated that he thought there had never been any occasion on which matters had been referred by the judge to the assessors. On looking the matter up I understand that that is not quite correct; but the occasions on which he has done so have been very few.

Although the members of the Medical Board who approached me did not in any way wish to challenge the decisions of the presiding judge who has given decisions in this tribunal, the.y do feel that there have been occasions when, had the assessors the right to g~es­tion a witness a totally different decisiOn would have been given by the presiding judge because certain medical facts would have been brought to his notice that were not in the medical evidence counsel himself presented. Consequently it will be an advantage for every­one concerned to give this right to the asse~­sors, where in their opinion it is necessary to bring before the notice of the pre~iding j!l~ge certain medical facts. Under this provisiOn they will have the right_ to do so . where previously they had the right to do It only if the matter was referred to them by the presiding judge. That right exists in regard to the many inquiries that are held in this State. For instance, in Public Service appeals the tribunal is composed of a repre­sentative of the Public Service Commissioner and the union, in addition to a magistrate, and these representatives have the right to ask questions of any of the witnesses who may give evidence.

The same applies under the Mines Regu­lation Act when inquiries are made into Mcidents. 'Assessors are appointed to guide the chairman in technical matters. As I have pointed out, the assessors in the Medical Assessment Tribunal have not this right at present, but have had to sit dumb through<mt

the whole of lengthy proceedings, and .wf7 are now asking that the same opportumty be given to medical assessors as is given to others.

As to experts I can assure the hon. member for Bundaberg that according to the case that may come before the court ~r tribunal, .an endeavour is made to get skilled men With knowledge of the matters likely to be raise?· If the matter is referred to the Governor m Council it is a very simple matter to have assessors with the requisite knowledge, or at least with knowledge to give the best pos­sible advice.

Much has been made of a very minor matter, that is, submitting evidence to a stipendiary magi~trate. As the h_on. member for Toowong pomted out, there I_s ~ system of obtaining evidence by commission, and we are endeavouring to save the board, which may have to incur a great deal of expense in having doctors who may be charged and witnesses travelling long distances from coun­try centres to Brisba~e. I _feel . that this system will work admirably m this mat~er, as it does in other matters. The Medlcal Board can commission the magistrate to get a statement or evidence from certain persons in country districts and transmit that evidence to the board to enable it to determine whether a prime-facie ease exists against a person who may be under a cloud. The deputation to me mentioned a particular case. A Govern­ment department laid a complaint. that a certain medical practitioner had Issued a medical certificate to an officer of that depart­ment. It submitud evidence to the Medical Board to indicate that this certificate should not have been issued. To bring that man to Brisbane paying his expenses and the expenses' of certain witnesses, would have cost at least £50. There is no necessity to involve the board in all that expense if the board's purpose can be achieved by the simple process of getting the necessary evidence through a stipendia~y m~gistrate. vye are not in any way handicappmg the mag~str3:te, and he may in his wisdom hold the mqmry and hear the evidence in camera if he so desires. If not, the local Press may be present and may write up the proceedings of the hearing held by the magistrate. We cannot help that, as in these mat!ers the light of day must be thrown, as It were, upon such matters as concern the people of this State and on those also that concern the medical profession.

Another issue raised was the payment of the expenses of a person who may be invited by the Medical Board to Brisbane. The Act reads--

''Every person duly summoned as afore­said who does not attend after reasonable expenses have been paid or tendered to him, or refuses to. be sworn or to make a statutory declaration, or to answer any lawful question, shall be liable to a penalty not exceeding £20."

I take it that the board interpreted that clause in this way: if it was right to invite someone to Brisbane and offer him expenses for his journey here, it was right in other

Medical Acts [ll APRIL.] Amendment BiU. 2347

eases where it had occasion to invite medi­cal men and witnesses" to appear before the board for a special hearing to determine whether a case lay against a medical prac­tioner. I understand it has done that. It l1as paid expenses, although nothing is defi­nitely laid down in the Act to the effect that it shall pay these expenses. Apparently the board looks on it as just and has done it, just as it would have paid if it had summoned a person to attend before it, and then charge him if he had refused.

I do not think there is any reason for quibbling about the slight amendment that is being made. All that we propose to do is to save the board perhaps £50 or £100 by way of expenses in bringing someone to Bris­bane to be examined regarding a complaint against him. No harm can come to anyone by allowing at least reasonable travelling expenses. The point is that at present the Act provides for ''reasonable expenses'' and it has been the practice in the past to submit a bill out of all proportion to what was intended. Under this heading of reasonable expenses claims have been mnde for the cost of a locum tenens, travelling expenses and several other costs. We maintain that by amending the Act to read, ''reasonable travelling expenses'' adequate provision is being made. I should say that any medical practitioner would be only too glad to travel to Brisbane and for­feit certain expenses that he may incur in order to clear his name before the Medical Board, if he is innocent. I can assure hon. members that by the administration of this amendment no medical practitioner will be made bankrupt but we do hope that by it the board will be enabled to reduce its costs, because after all its revenue is limited. With this amendment it will be able to carry on the very useful work it has been performing for society by upholding the prestige of the medical profession while at the same time protecting the interests of the public.

JUr. WanstaJI: Suppose a witness is a working man who is losing wages while he is away. Do you not think he should , be recolllpensed for that~ '

Mr . . FOLK¥: I have heard hon. members opposite speaking about living within one's income quite often. The board has a certain alllount of revenue and all we seek to do is to give the board an opportunity of living within its incollle and of carrying out the work experted of it. I have already referred to cases showing how the term ''reasonable expenses'' has been interpreted to include lllany things that should not be considered.

The lllain object of the Bill is to reduce costs to be met by the board in adlllinistering this portion of the Act, and I do not think this alllendlllent will do any harlll to anyone. Another principle is to give assessors the opportunity of questioning counsel and wit­nesses and thereby bringing before the notice of the tribunal judge certain medical or other facts that might not be brought out in the cases presented by counsel.

When I introduced the Bill I mentioned the case of a lllan who had applied for a licence to practice as a specialist in anaesthesia.

The board did not think that he had the necessary experience, particularly in the application of certain anaesthetics, and refused the application. He appealed to the Medical Assessment Tribunal and was suc­cessful. It is con tended that if the assessors had been given the opportunity they could have brought out certain facts which would have caused the presiding judge to uphold the board 's decision. As they had no right to speak until they were asked-and they were not asked-the appeal went against the board and that man is practising today.

Mr. Wanstall: Are you criticising the judge's decision~

Mr. FOLEY: No, I am not criticising the judge.

It is not the desire of the Medical Board to criticise the judge. The assessors may hold a different opinion frolll the judge hut the board thinks that if the llledical assessors feel that certain facts are not being properly presented they should have the right to inform the judge accordingly and in that way perhaps bring about a decision that may uphold the con­tentions of the Medical Board. The Govern­ment are not questioning the judge's decisions by this legislation nor is that the purpose of the Medical Board. In the presentation of cases to the tribunal, counsel concerned naturally present the case in such a way perhaps that certain llledical facts are not brought out in evidence, and the assessors sitting there receiving their £10 10s. a day and seeing that happening feel that they should have the right to bring out such facts that are not being brought out. The judge may not notice that and the purpose of the Bill is to enable the assessors to bring out such facts hy cross-examining wit­nesses or asking questions of counsel, all in the hope that a fair decision will follow.

I am of the opinion that the new powers will give an added benefit to the COllllDUnity, that they will be of advantage to the Medical Board, and uphold the prestige of the medical profession. That is their real desire. I co=end the Bill to the House.

Motion (Mr. Foley) agreed to.

CoMMITTEE,

(Mr. Devries, Gregory, in the chair.)

Clauses 1 and 2 agreed to.

Clause 3-Amendment of section 13; Powell' to summon witnesses-

Mr. WANSTALL (Toowong) (2.42 p.m.): I lDOVe the following amendlllent:-

'' On page 2, line 16, after the word 'exalllination,' insert the words-

' in camera. ' '' The purpose of the alllendment is to overcollle the objection that I raised on the second read­ing and which was referred to by the Minister, who in reply made it quite clear that it would be entirely within the discretion of the magistrate whether he conducted the inquiry or investigation in public or in camera. I emphasise that it is very wrong

2348 Medical ActB [ASSEMBLY.] Amendment Bill.

that such proceedings should be conducted in public before it is known that there is going to be a charge made against the person whose name is being bandied about. The Minister said that if the local Press came along they could publish the proceedings before the inquiry, but I want to point out to the Minister that at that stage the matter that is ·being inquired into by the stipendiary magistrate is purely and simply at the inves­tigation or inquiry stage and that it would be as nonsenical for the Minister to invite the Press to participate in the investigation by police officers into various crimes. If the Minister intends that the proceeding before the stipendiary magistrate at that stage con­stitutes a preliminary hearing then the person charged should have the right to cross­examine, but if on the other hand he says that it is not a judicial proceeding but more or less an inquiry, he has no right to dis­elose to the public the evidence that is being given before the board or stipendiary magis­trate. The object of my amendment is to ensure at that early stage, before it is known whether substantial evidence is to be given against the person in charge, that his name will not be bandied about in public and published in the local Press, and that the magistrate will conduct his investigation in camera and Bubmit the evidence to the board. The board will consider the evidence and make up its mind whether there is a prima­facie case against the person concerned, and if so charge him publicly and have him taken before the Medical Assessment Tribunal. It is wrong to expose a medical practitioner whose practice is dependent entirely upon his good name in the locality to the pub­licity occasioned by these proceedings. I ask the Minister in all fairness to accept my amendment.

Hon. T. A. FOLEY (Normanby-Secre­tary for Health and Home Affairs) (2.45 p.m.) : I do not propose to accept the amend­ment. I realise the hon. member's good intentions to protect any member of the medical profession who may be called upon to submit a statement or give evidence with regard to a matter the board may be inquiring into. I would point out that sec­tion 13 of the Medical Act states, inter alia-

'' Subject to this Act the board shall, in making any investigation into any matter or holding any inquiry or hearing any application under this Act, have all the powers, authorities, jurisdiction, and protection of a commission under the Official Inquiries Evidence Act, 1910 to 1929.''

In other words, the magistrate will be in the position of a commission empowered to make certain investigations. I take it that he will recognise the possibility that an injury may be done to a medical practitioner. On the other hand, he will recognise also the need of bringing to light any evidence that the puhlic may wish to know and give them an opportunity of knowing it, and, in his discretion, as the Bill is framed, he will decide when certain evidence will be taken

in camera. It is wise for us to leave the position at that. The commissioner, that is the magistrate, has discretionary powers in the principal Act to decide whether in the public interests or in the individual's interests the inquiry or evidence taken before him shall be in camera or otherwise. That is the wise course to adopt. Inquiries held in other spheres from time to time by commissions, magistrates, and others are authorised to use their discretion in this respect and I have yet to remember any great public outcry against any decision along such lines.

Mr. WanstaH: There interested parties have the right to examine and cross-examine, but here they have not. It is one-sided.

Mr. FOLEY: It is left to the discretion of the magistrate, who is the commissioner, to investigate and thoroughly probe the matter referred to him. If he finds it neces­sary to call certain evidence or allow certain cross-examination it is within his discretion to do so.

Mr. Wanstall: The present board refuses to do that.

llr. FOLEY: It is within its discretion. In the case the hon. member mentioned this morning the chairman of the board in his wisdom decided not to allow it.

Mr. Wanstall: It was not in his wisdom.

Mr. FOLEY: On the other hand a magis­trate in certain cases may allow cross-exami­nation or disallow it, as he thinks fit. We should' not handicap a magistrate who may be holding an inquiry in public or in camera but allow him to conduct it in whatever method he thinks best in the public interests.

}Ir. HILEY (Logan) (2.50 p.m.) : Th;e Minister admitted a good deal of the basis that should encourage him to accept this amendment. He has clearly indicated that he recognises that there are many. cases in which publication should be prohibited, but he says he feels that the discretion. of the magistrate is a sufficient safeguard m those instances where publication should be refused. Is it a safe thing to put an inherent liberty and right of every citizen in peril at the discretion of a magistrate when it touches some of his basic rights~ I do not think it is.

Let me illustrate how this may operate. 'rake for example a small town, where the dangers of publicity could be v~ry harmf:uL In that small town some witness-quite honestly believing that a certain thing is true-may go into a witness box a'nd make all sorts of monstrous accusations against a man who has a professional practice. If there was opportunity-a full and unchal­lengeable opportunity; not an opportunity resting on somebody's discretion-to meet that challenge on the evidence there and then, what a different report you would get! The only report you may receive of it now sets out the unqualified allegations•. It is quite true that ultimately that man's ri~ht of practice cannot be taken from him,

Medical Acts [ 11 .A:PruL.] Amendment Bill. 2349

because at some stage he will be able to enforce his right of cross-examination, and will be able to rebut the evidence adduced against him. But if the mischief of publicity is allowed to exist at the discretion of the magistrate on those allegations without rebuttal, without the testing of cross­examination, the Minister may. relying on those discretionary powers which he feels sufficient, actually be the instrument of impo,;ing a very real injustice upon a man who is guiltless.

I do hope the Minister will realise that in what he is now proposing to do he is failing to distinguiEh between what is proper pro­cedure during an inquiry and what is proper procedure during a trial. It is one aspect in which our British practice, thank God, is in sharp contrast with American practice. In American practice, if a crime is com­mitted we are accustomed to read that hordPs of newspaper renorters haunt the offices of the persons charged with mak­ing the inquiry, and give a "ball to ball" description of the investigation. If the Minister wants in this limited :field of judicial inquiry to bring this State to the equivalent of the district attorney's practice in America, all I can say is, ' 'God save us from it!'' The evils of publicity during the inquiry stage are far too serious for a com­munity with the traditions of British justice to even lightly hazard. Much as the Minister, with some propriety, points out that this matter is subject to the discretion of the magistrate, I do say that no magistrate should be given any discntionary power to commit the injustice inherent in this power that the Minister has suggested may be com­mitted. I do hope that the reasonable atti­tude he has shown in considering this matter will enconrage him to review the matter further, and I do hope that on giving it further consideration he will see the wisdom of the suggestion of my colleague, the hon. member for Toowong, and accept the amend­ment.

Hon. T. A. FOLEY (Normanby-Secre­tary for Health and Home Affairs) (2.55 p.m.): I think hon. members are takin.g- a wrong view of this matt~'r altogether. First of all, I would mention that it is purely an inw.Etigation.

Mr. lYanstall; That is the trouble.

Mr. FOLEY: Let me go a little further. Trrcspecti,-n of whether this invesiiqation is held! at Charleville or Mt. :j:sa by the magistrate, or whether it is held in Brisbane by the Medical Board, the publicity is just the same. If in the discretion of the board or the magistrate-who really is. the board carrying out the business of the board­decides that it shall be published, that ie all there is to it. All we are doing is dele<:ating certain powers of the board to the marris­trate, and asking him to make certain inquiries-say at Charleville-into some charge or complaint that may be P"ade by a government department or an indiv;dunl. All he does is to make those inquiries from the persons concerned, and interview or

obtain evidence from any witness. if he thinks it neces·sary. That is passed on to ~he Medical Board in Brisbane. That proceedmg saves the board the cost of bringing the man to Brisbane. It makes no difference whether it is held at Charleville or Brisbane, the same publicity is likely to occur if it is of such a nature that it would warrant the local Press in following it up. If it is so, it can get the information by asking an agent to attend the inquiry here in Brisbane. Hon. mem­bers can see that it would be wise in the public interest to allow the position to lie as it is, that is to say, to leave it to the discretion of the Medical Board in the event of a case being heard in Brisbane, or of the magistrate who is acting for the Medical Board at Charleville or Mt. Isa, to decide whether certain evidence will be heard in public or in ca'mera. Because of that I feel it wiser to allow that discretion than to con­fine it. There may be cases in which it is desirable in the public interest tl,at certain matters should be heard in public to enable the people to know something of the actions of a medical practitioner.

There is also another factor I would bring to the notice of hon. members. In an indictable offence usually the evidence at the preliminary hearing is given in public although it may happen the accused person may be eventually found not guilty. In the interests of the public the magistrate, if he so desires, has the right to determine that certain evidence shall be heard in cnm ra, and rules accordingly. I feel that that is really the wisest course in this instance--to leave it open enough to enable the Medical Board or the magistrate who is appointed in its stead to use a discretion as to whether a case should be held in camera. T do not feel inclined to accept the amendment.

Mr. WANSTALL (Toowong) (2.59 p.m.): The Minister's illustration of what h~ppens in the preliminary stage of the hearing of an indictable offenc!J merely reinforces strongly the argument put forward by my colleague, the hon. member for Lognn. and myself. The Minister stated that frenurntly these proceedings take place in public­invariably they do-although the person may be ultimately acquitted. Can the Minister not realise that at these proceedings the accnsed person has the right to be heard, a ri.ght that is inhermt in him and do s not depend on the good grace' of the chairman of the board or the stipendiary magi"trate~ Moreover, he has the ri?ht to crof~-exnmine the witnrsses. How on earth can the Minis· ter sa'y that it is in the interest of the public to hear one side of t"e story nnd not the other~ The hon. gcntlPman sta'es that the public may br interested in hearinrr how a medical practitioner conducts his rrrc ice in a country town but the ru blic will not hear it at these proceedinQ'f becanse tlwv will hear one side onlv. Thev will hear tho eYidence b~ing l!nthe~ed for "the proserution in such n way that the accused nPrsPn l•as 11n riq;ht to cross-eYamine any of the witnesses Anrl llas nn rin-ht to be henril ]yfcre thn mor-i"trate. The Minister misconceives the position to sug-

2350 Medical Acts [ASSEMBLY.] Amendmem BiU.

gest that it is in the -publie interest- to hear such a one-sided presentation of the evidence gf the prosecution. That is a vital distinction that the hon. gentleman does not see. Good­ness me, the Minister may as well argue tha:t. in the public interest it is desirable that the Press attend the investigations 'rarried on by the detectives in the C.I.B. He, may as well suggest that the Presa attend the conference between officers of that ."!epartment gathering evidence against a murderer or somebody else.

lll'. Foley: What is the difference with > casc> being inquirrcl. into in Brisbane or Uharleville ·?

Ir. WANSTALL: The reference to the rnse bring; heard in Brisha·nc is <'ntirely beside the point. The Minister said the Press may follow it u-p. It could attract :ts much publicity here but that does not make it right. The hon. gentleman loses ~ight of that fact. Moreover, if proceedings :tre carried on in a remote country town ~verything that happens there is of vital interest and is published in great deta'il by the local Press. I have been in country towns on minor prosecutions, such as prose­euting a drover for loitering on a stock route, and I know that the case gets a full page in the local paper. Can one imagine a matter of so little consequence getting even a paragraph in the Brisbane Press~ That is a distinction that the Minister does not realise.

Anyway, it does not affect the rightness or wrongness of the position. Even if it is done in Brisbane that only makes it worse. The point is that unless an accused person has the right to be heard and defend himself before a stipendiary magistrate only one side will he presented to the public and that may irretrievably damage innocent persons. ·

Mr. Foley: The magistrate can allow that if he desires.

Mr. WAN STALL: It is not a matter that ahould be left to his discretion. It is the dght of every British subject to have his aide presented in court. That is a right that was given to him by Magna Carta and has heen his ever since. It is inherent in our system of jurisprudence and as the hon. member for Logan pointed out, it is that whieh distinguishes our system from the American system. Like the hon. member for Logan, I hope we shall nev!'r see the American system rrplacing ours, I warn the Minister that in -permitting the publication of an investigation or inquiry before a charge is faid he is breaking down and cutting across ,~nt' of the basic principles of British juris­prudence. I would not say he is not able ro see it but that he is being wrongly advised. I e an see the Minister is giving this very _rr;atnre ,consideratio:r;. He is going out to f4s adns: rs but hrs advisers are wrongly advising him. They know as well as I know that what I am saying is right.

Mr. J. F. BARNES (Bundaberg) (3.3 p.m.) = . . As I have preyiously pointed out, >he Mrmster has been mrsled. I said I would

·be charitable to the Minister and say that he did not understand his brief. I also pointed out that that is not sufficient Necuse for the Minister to come to this Committee and mislead it.

Here is something happening before our . very eyes. I can see that the Minister is agreeable to listening to the hon. member for Toowong and the hon. member for Logan. I can see he is inclined to accept the amend­ment, but he goes for advice and we all see what happens. The advice comes back and he rejects the amendment. The Minister is asked to make up his mind on the spur of the moment on something he has already made his mind up on previously. Although he is anxious to help hon. members on this side, and the medical profession, he is boxed up

, with the advice he is receiving.

Anyone who knows anything about this Act knows that prior to the Dr. Max Miehel appeal to the J<'ull Court no-one had any rights before the Medical Board. When a doctor was charged before the Medical Board he was charged in his absence, without repre­sentation and without expert witnesses, and he was found guilty. In other words, a prima-facie case was proved against him and the doctor was charged before the Medical Assessment Tribunal. Because the board has been doing something wrongly in the past, that is no reason why it should be allowed

. to continue to do it.

The mere fact that the Act provides that 'a magistrate may hear cases from far distant

· centres does not make it right under the principal Act. The principal Act provides that the board can hear these charges ex parte. In this instance it is definitely wrong to hear them ex parte. The magistrate in Charleville, Timbuctoo or anywhere else has the onus placed on him of deciding whether he will hear the evidence in camera. In the first place, what does the magistrate know about iU How can he decide whether the ease should be heard in camera until he hears the facts~ Mind you, at that stage, they are not facts; they are merely the facts as collected by one side, the Medical Board, they are one-sided facts, whereas if the magistrate had the ordin­ary Magistrates Court jurisdiction both sides of the case would be presented. Men who know anything about the Medical Act, such as tht> hon. member for Toowong and I-because I have discussed it in the House several times -know that the whole thing has been a farce from start to finish. This amending Bill was introduced for a certain purpose, but that purpose is c1efrated.

The amendment is introduced to eliminate expense. If the magistrate has power to hear the defence, to hear the evidence of experts, the whole charge will be thrown out before it gets to the Medical Assessment Tribunal, because no prima-facie case will be estab­lished, whereas in nine cases out of ten in the present system a prima-facie case is estab­lished. For example, the Dr. Max Michel case would have collapsed if experts had been allowed to appear before the board and give their views. As the hon. member for Too-

Medical Acts (11 APRIL.) Amendment Bill. 2351

wong said, the members of the board are not trained in law at all, and in nine cases out of t~n they are not trained in medicine, yet they aze empowered to commit a man to the M~dical Assessment Tribunal on hearsay evidence. Again, there is no-one on the Medical Board, with the exception of Dr. Cilento-for whom I have no time whatever -who is a barrister. I suggest that one of the reasons for introducing this Bill is to give Dr. Cilento the same powers as a barris­ter in a court.

'.rhe TEMPORARY CHAIRMAN: Order! The question before the Committee is whether this evidence shall be heard in open court or in camera.

!'fr. ,J. 1". RARNES: That is so. If, for argument's sake, a doctor in a small town like Beaudeoort is brought before the Magistrates Court in Beaudesert everyone in that town would know about it for the plain and simple reason is that the Beaudesert paper is printed once a week and its policy is to publish matters of local interest. It would publish all details of the ease, and hon. members can imagine what would have happened in the Dr. Max Michel ease had the details been printed in the local paper. That case was so technical, medically, that the public would not have been able to understand it and in that instance it would have been for the benefit of the public if the details had not been published and the matter had been heard in camera, as is done before the Medical Board. Never yet have proceedings before the Medical Board been published before the matter has been sent to the Medical AE!SessmeniJ Tribunal. Why m it done now? Has Dr. Cilento or those who intro­duced the Act some desire to have mud thrown on the wall in some particular town where a particular doctor is practising and where a weekly newspaper publishes local happenings~ The Minister has made a good attempt to accept the amendment moved by the hon. member for Toowong and supported by the hon. member for Logan and I ask the Minister in his wisdom not to be influenced by wrong advice at this stage, but to accept the amendment because it is only a reason­able one.

Hon. T. A. FOLEY (Norman by-Secretary for Health and Home Affairs) (3.9 p.m.): I never thought that I should have had the opportunity of locking horns with such learned counsel as have spoken to-day. Of course, I do not include the hon. member for Bundaberg, who I should say has very little knowledge of the subject.

The hon. member for Toowong appears to be endeavouring to prevent the light of day from being thrown upon questions that are of importance to the public generally. I agree with learned counsel and the judges that there are some occasions when delicate sex matters are being considered and when a young virtuous woman or child is being interrogated when there is need for certain evidence to be taken in camera. That has always been the practice where in the opinion of the judge or the magistrate or the corn-

mzsswner that method should be followed. In all preliminary hearings concerning a medical man or anyone else, he has the right to make a statement and if the board in its wisdom, sitting in Brisbane, Cbarleville, or Mount Isa, decides that he shall be allowed to ask certain questions or cross-examine wit­nesses there is nothing in the world to stop him from getting that right. Why not leave it at that~ If something is published in the local Press it has to be written in such a way as to indicate to the public that the medical man has been charged with a certain offence but the matter being inquired into does not amount to the making of an actual charge. Its purpose is only to obtain cer­tain evidence. If the medical practitioner concerned is innocent, what is there to hidef Why hold the inquiry in camera 1 What is there for any hon. member here to worry about in connection with an inquiry so long as he is innocent of any wrong-doing~ That is the point. The point is that the wh'Ole of the evidence collected by the magistrate is of such a nature that when presented to the board the board has sound grounds for deciding that a prima-facie case has been made out. Even before the Medical Assessment Tribunal it is within the discretion of any party to the proceedings to ask for an open court and it is for the tribunal to say whether the person concerned is guilty or not. If a complaint was laid against, say, an hon. member of this Chamber for certain wrong­doing, whether he was guilty or not-that is the point--then the preliminary hearing is open to the light of day. What is wrong with it if you are innocenU The whole world knows it if you are innocent.

Apparently hon. members opposite are trying to hide something because medical men are concerned. They might as well apply the same principle to every other hear­ing. If they are logical in this instance then they can apply the same principle to every other preliminary hearing. I want to emphasise the point that the correct prin­ciple is already laid down in the Act itself and that it is left with the presiding magis­trate who may be appointed by the board to determine whether certain statements shall be taken in camera. I feel that in most eases all that will happen will be that the board will delegate certain powers to a stipen­diary magistrate in an isolated part of the State asking him to get certain statements and evidence. All that he does then is to call the parties in to him. That is all that would be necessary, but it does not neces­sarily follow that there should be a public hearing and that the whole world should be there.

Mr. Brand~ But you want it to be public.

Mr. FOLEY: No. I am saying that we should leave the clause in such a way that it is left to the discretion of the stipendiary magistrate to say how the evidence shall be collected. We are not hampering him in any way. Most of our magistrates are trained, they come up through the various grades of the Department of Justice.

2352 Medical Acts [ASSEMBLY.] Amendment Bill.

They are trained in the exercise of discre­tion to determine whether certain matters should be heard in camera where injury is likely to be done to a certain person, even though that person may be a medical practi­tioner. Hon. members will be well advised to leave the matter as it is. I can assure them that no harm will be done to anyone by it.

Mr. HILEY (Logan) (3.15 p.m.): The Minister has made a very eloquent case for permitting the full light of day to shine upon judicial proceedings. With that abstract statement every thinking hon. member will be in full accord. If that is the meaning of the clause our objection would be entirely missing.

Again I come back to the line of demarca­tion between an inquiry leading to a charge and a judicial hearing following a charge. Where judicial proceedings are being held, then subject only to the canons of public decency there should be the fullest publicity attaching to every hearing. Only by the fullest publicity of judicial proceedings can you prevent gross miscarriage of justice. But there are other forms of proceeding, extra-judicial proceedings, in which some citizen could have thrown a different light on a matter and was prevented from giving evidence because of the fear of publicity. When we come to judicial proceedings, how­ever, never let us lightly lack full publicity, except in the interests of public decency.

Here is a case where we have proceedings that may or may not lead to a charge. Remember, the right to make allegations against people that may prove to be unfounded is not uncommonly met with. Let us, for instance, ask the Commissioner of Police how many charges come into his office and where in the final result no charge is made against the person. Countless thousands. I venture to assert that a great number of eases will come for inquiry before the Medical Board in which no charge will be laid against a medical practitioner.

Mr. Foley: It happens today.

Mr. HILEY: Here is the danger. Once a charge is laid against a practitioner, give it the fullest publicity, exc-ept in the interests o': public decency, but where it is a mere a <<,,ertion by a person, imagine the gross injustice that could follow to a perfectly innocent practitioner, who might be foully nnd utterly wrongfully charged, from being exposed to the full blast of publicity unless the magistrate exercised his discretion It ,,·ould be a fatally r1ange•·ons prineiple, and I cannot conceive that the Minister will permit himself to tear away too early publicity in our criminal jurisdiction, because it is one of the ramparts of jm•Ece. I venture to say, that he will not te:u away this· equally important rnmpart in medical jurisprudence. The slanderous tono-ue of someone who may be personally :·.ggricYc<l, or who is the rela­tive of son•eo11e 1•.·ho has had an unfortunate medical experience, may do a medical practi­tioner ~~rie•·ous injnry. The Minister with his long experience has probably not one bnt many example" of thnt type of attack.

A charge properly launched as a result of such a foul falsehood is something that the Minister should bring to the inquiry stage. If a charge is found to be warranted and it is laid against the medical practitioner there should be no limit to its publicity but public decency and the right to publish defamatory matter.

Question-That the words proposed to be inserted in clause 3 (Mr. Wanstall 's amend­ment) be so inserted-put; and the Com­mittee divided-

AYES, 14. Mr. Barnes, J. F.

Brand Decker Edwards Hlley Luckins Macdonald Morris

Mr. Nicklin Pie Sparkes

, Wanstall

Tellers: , Kerr

Muller

NOES, 26. Mr. Bruce

Clark Collins Davis Dunstan Farre!I

, Foley Gair Gledson Graham

, Hanlon Hanson Hayes Healy

AYES. Mr. Maher

Chandler Clayton Walker Mclntyre Plunkett

Resolvr cl in the

PAIRS.

Mr. Hilton Jones Larcombe Moo re O'Shea. Power Taylor Turner Walsh

, Williams

Tellers: Jesson Wood

NoEs. Mr. f}unn

Ingram Slessar Smith Theodore Keyatta

negative.

Mr. WANSTALL (Toowong) (3.26 p.m.) : I cannot let this clause go through without again registering my prot~st. against its unfairness. It proposes to hm1t expenses ~o travelling expenses. When I raised this point lefore I pointed out to the Minister that not only was the person charged with the offence involved, but a perfectly innocent disinterested third party who cared absolutely nothing about the proceedings might also be involved. The Minister said if any medical practitioner was charged surely he would be glad to come down to defend him­self even at personal cost. What the Minister completely loses ·sight of is that the person summoned may not be an a~cused me_d~cal practitioner but may be a workmg man llvmg in Charleville, Cunnamulla, or somewhere else, who is an absolutely disinterested witness but undeT this amendment he is deprived of any right to have his wages re~ouped.

Supposing he gets a subpoena to come _to Brisbane and his employer does not pay him for the week he is away, all he can get is his travelling expenses. He loses all. other reasonable expenses, whirh would mclude wages for that week. The Minister must 110t be so intent on the obstacle on the path as to lose sight of the path. It is not only the person charged who can be summoned;

Medical Acts [11 APRIL.) Amendment Bill. 2353

under section 33, the board can summon any person to give evidence before it. It can summon a police constable, a doctor, a shearer, or a labourer. Under this amendment the out-of-pocket expenses are to be borne by himself although he is coming down here to give evidence in discharge of a public duty. It is reprehensible and I cannot understand the Minister's purpose in limiting the clause. If he is so keen on limiting it to the effect it would have on the person chargtJd it would be different, but it is clearly gentJral in its operation and will operate unfairly on disinterested persons who are called on summons to give evidence and if the board is limited to recouping the fare-and pro­bably it will be a second-class fare-for a long railway journey it is going too far and I must protest. I cannot move an amend­ment but I can protest with all the emphasis nt my command.

Mr. J. F. BARNES (Bundaberg) (3.28 p.m.): Supporting the hon. member for Too­wong I would point out that there is much more' danger in this clause than even he has pointed out. Supposing I am brought from Mt. Isa or some other place to Brisbane to give evidence before the Medical Assess­ment Tribunal and supposing they give me a second-class fare-there is nothing to stop their doing that-by the time I get to Bris­bane and travelling in these terrible trains we have in Queensland together with the second-class accommodation that I should travel in, I should be very hostile. I should bp further hostile by reason of the fact that I might lose a week's salary. In this instance I should lose two weeks' salary, because it would take all that time to get here and go back. That has been my experience of train travel­ling. I cannot afford to pay for my accom­modation in Brisbane. The accommodation difficulty is very acute in Brisbane, and one can get only limited accommodation for £3 10s. a week. I am out of pocket for all that money. What am I to do ~ When I go before the Medical Assessment Tribunal I shall be dumb. I cannot be treated as a hostile wit­ness because I will not say anything. The result is that the whole object of the Bill is defeated. One need not be more than five years old to understand that, if one has any intelligence at all. I have not given the Minister the credit of any extraordinary intelligence. On the contrary, I have been charitable to him because of his lack of knowledge, but in this instance one need not be more than five years of age to see that the Bill is defeating its own object.

If the Minister allows this to go through, the result will be-without citing any par­ticular type of person-witnesses will come from Cunnamulla, Charleville, Timbuctoo, and Birdsville and instead of helping the Crown, which was the object of bringing them do-wn, they will do just the opposite. Before the tribunal they will be dumb and say "I do not know,'' and there is no power on earth to make them know. What is the use of the Bill in the first place if the witnesses are be made hostile~ I appeal to the Minister from the common-sense point of

view to accept the suggestion of the hon. member for Toowong and include that in the Bill.

Hon. '1'. A. FOLEY (Norman by-Secretary for Health and Home Affairs) (3.31 p.m.): Hon. members are again splitting hairs, as it were, and endeavouring to make an argu­ment when really there is no room for argu­ment. If thHy studied the section of the Act they -will find that it states-

''The president of the board, or by con­sent of the majority of the members pre­sent at any meeting of the board, a member, may in writing under his hand summon any person to attend before the board for the purpose of being examined with respect to any matter within the jurisdiction of the board.

''Every person duly summoned as afore­said who does not attend after rQasonable expenses have been paid or tendered to him, or refuses to be sworn or to make a statutory declaration, or to answer any lawful question, shall be liable to a penalty not Hxceeding twenty pounds.''

I would draw attention to the point, ''after reasonable expenses have been paid or ten­dered to him.'' The board may not tender them. It is left to its discretion and all we are doing in this case is to make a slight amendment, to make it read-

'' Every person duly summoned as afore­said who does not attend after reasonable travelling expenses have been paid or ten­dered to him. "

'l'he position is that there is no provision in the section at present compelling! the Medical Board to pay expenses to any person.

JUr. Waustall: The witness need not come if he is not paid.

Mr. FOLEY: If he is offered or tendered something and he does not come the power is there to fine him up to £20. After the discussion that has taken place it should be quite clear to hon. members that the Medical Board has no desire to involve any member of the medical profession or any other citizen in the high cost of travelling to Brisbane. This amendment is introduced to permit a stipendiary magistrate to hear evidence in isolated country towns and avoid this expense. Our object is to allow these preliminary inquiries to be made in country districts. After all, they are only preliminary inquiries to ascertain whether a prima-facie case exists. In an exceptional case the board may desire to bring a person to Brisbane and the board will offer him reasonable travelling expenses. What is wrong with that~

Mr. Wanstall: There is a lot wrong with it if he loses his week's salary.

Mr. FOLEY: The community has got to be satisfied about certain things concerning the prestige of the medical profession and the interests of the community in general. The board has not unlimited funds out of which to pay high expenses. It must adopt some means of keeping within its income in carrying out the work entrusted to it.

2354 Medical Acts [ASSEMBLY.] Amendment Bill.

Hon. members opposite are not fair. We have provided that a person may be examined at Mt. Isa, Charleville, Cooktown, up in the Gulf country, or anywhere else, so that the board may save expense. I;n an excep­tional case in which it may be necessary to bring a man to Brisbane provision is made to pay reasonable travelling expenses. After all, this will apply mainly to the medical practitioner.

Mr. Wanstall: It might be a patient.

Mr. FOLEY: Do hon. members think the board would ask a lengthsman at the other side of Charleville to go to the expense of coming to Brisbane and then pay him noth­ing~ He may make a statement to a magis­trate in his district. If it is a grave charge against some medical practitioner whose name has been clear up to date, the board may decide to bring the practitioner to Bris­bane, and in that event he will be offered or tendered reasonable travelling expenses, and I think the medical practitioner would be satisfied with that. He would be only too willing to come to Brisbane and clear himself of such a charge.

The board has certain duties to carry out. In carrying out those duties in the past it has found at times that its income was not sufficient to mret all the costs involved and all we seek to do is make a legitimate attempt to keep down expenditure without inflicting hardship on anybody. The board is not going to bring a lengthsman from Oharleville or Mt. Isa and cause him to lose a week's work.

Mr. Wanstall: It has power to do it.

Mr. FOLEY: But there is no need to ~o it. Under this Bill the hoard is delegating Its powers to the stipendiary magistrate in such cases. It will be only in exceptional cases that the board may think it desirable to bring a person to Brisbane. If it should have occasion to do that it will offer reason­able travelling Bxpenses, and I think no medical practitioner will object to the amend­ment.

Mr. DECKER (Sandgate) (3.39 p.m.): This amendment was brought down to Parlia­ment as a result of an approach by the Medical Board to the Minister because the fees collected by it were insufficient to meet its €Xpenses in paying witnesses and doctors to attend before it.

I think it is a very cheap way of trying to balance the budget, doing it at the expense of the doctors and the witnesses who may he forced to attend before the board. It seems to me that there is no other way of meeting the position except by increasing the assets of the board so that it can legitimately pay the expenses incurred by those who have to attend before it in Brisbane or before the stipendiary magistrate in some other part of the State. When the Bill was introduced I declaimed against it on that ground that that part of it was injust.

There are only two ways of meeting the eircumsbnces described by the Minister. The first is for the board to increaoo its fees. At

the present time the amount paid by the ordinary doctor is two guineas a year, and by the speciaiist three guineas. If that does not provide adequate funds to give a square deal to the doctors and the witnesses who are called upon to attend before the board, then as the matter is in the public interest the Government should subsidise the board's funds so that it will have enough money to meet all legitimate expenses. I think it is very wrong to supplant ''legitimate expenses'' by ''travelling expenses,'' as travelling expenses do not cover all legitimate expenses. We know that when a medical practitioner is called from a country centre to visit Brisbane his travelling expenses are not the only out-of-pocket expenses that he has to incur. The person who may be called upon to attend before the board may be a witness who is not the person likely to be charged.

It will be seen from this debate that we on this side have held no brief for a doctor who has been charged by the board and ultimately found guilty of professional mis­conduct. We hold no brief for any man who commits a breach, but we feel keenly for the innocent person who may be caused great inconvenience in being called upon to attend before the board. If he is, then he should be properly recompensed for the expense that he incurs in meeting the wishes of the board. That is all that we ask. The Minister has admitted that the Bill is necessary because the funds of the board are not suffici­ent to meet the expenses of persons who may be called to appear before the board to give evidence.

lUr. HILEY (Logan) (3.42 p.m.): I am inclined to agree with the Minister that the number of cases that will be affected by the Bill will represent a small percentage of the total, but I do suggest to him that there would still remain a sufficient number of cases that would suffer a very manifest injus­tice, and, for the sake of that small percentage, he should not bring in these limiting words.

Let me illustrate just how this thing might operate. The .Minister in the course of his reply referred to a 1engthsman at Cunna­mulla. We will take the lengthsman of Cunnamulla and assume that he is properly called at the initial inquiry stage before the magistrate at Cunnamulla and consequently his travelling expenses are nil and that he loses a day's pay. That is bad enough, but we will not weep over that at this stage.

Mr. Foley: The magistrate may work overtime at night and so he will not lose his day's pay.

Mr. HILEY: Let us assume too that the mag1st1·ate will work overt1me in tile evening, so that the man loses no time whatever. Let us assume also that the case is one where the initial inquiry is followed by a charge against a medical practitioner that subse­quently comes before the proper tribunal for determination. The man is charged. It is quite likely in such a case that the lengths­man will be brought before the tribunal for cross-examination. Remember that the initial

Medical ActB [11 APRIL.] Amendment Bill. 2355

investigation before the stipendiary magis­trate was merely to determine whether there was a prima-facie case. That is so, Mr. Minister~ The charge is laid and that very lengthsman whom the Minister quoted will be brought down for the purpose of cross­examination and will lose several days' pay.

Mr. Foley: No.

Mr. HILEY: Does that mean-this is very intereotmg-uoes the Minister mean to tell us that having given his evidence before the stipendiary magistrate at the i~tial inquiry, this lengthsman will not be avrulable for cross-examination later on before the tribunal if the man is charged~ That is what you are telling us, Mr. Minister.

Mr. Foley: No, that is what you are understamtm~;.

Mr. IIILEY: No. It is one thing or the other, either that the man is to be ~ubj~ct ~o cross-examination when the charge IS laid, m which case he has to come to Brisbane where the proceedings are to be. held, and so .loses his wages, or that man will not be availa;ble for cross-examination~ In either alternatiVe, it amounts to a monstrous injustice.

On the one hand the person who is charged and who is entitled to cross-examine the witness before the magistrate would be injured while on the other hand it would be an injustice to the witness who is forced to lose employment by attending as a witness to prevent him from recovering the wages he would have earned had he remained undisturbed in his employment.

Let us examine the reasons quoted by the Minister. The Minister quotes as a reason that the board is hard up, that it may :finish in debit and consequently could not pay. In 1946 is this deliberative Assembly to be told that we are to wink our eyes at an injustice purely on the grounds of :financial stringency~ Is that the declaration of. the Minister~ Is payment to be on the basis of sheer expediency; is it to depend purely aud simply on what money happens to he in the Treasury funds~ Of all the poor arguments I have heard that is the poorest. If that is the argument that will govern the administra· tion of this country, if it were the argument covering the administration for the last 20 years, what would be the payments made to public servants, or what would be the pen­sion payments today~ We must be guided by what is fair to the citizen. It is our duty to be fair to our citizens. If certain evi­dence is required then funds must be made available to secure the attendance of wit­nesses to give that evidence. Do not let us adopt the craven attitude that because we have so little money in our Treasury we can­not afford to do justice to the citizens of this State. That is a poor argument. I hope that the Minister, on giving further thought to this matter, will realise that his argument is an unworthy one and that it will do an injustice to an accused person by denying him the right of examination and an injustice to the poor helpless witness by denying him recoupment of wages he other­wise would have earned. I do hope that the

Minister will give this serious thought and recognise the inherent danger in what he is doing.

lion. '1'. A. FOLEY (Normanby-Secretary for Health and Home Affairs) (3.48 p.m.): The hon. member has brought the argument into another :field altogether. He has brought it to a stage where the witness has been charged by the Medical Board before the Medical Assessment Tribunal. That is a different stage altogether. The part of the Bill we are dealing with now is that where tlle Medical Board summons an individual so that he may be asked to give a statement or evidence to enable it to determine whether a prima-facie case exists against the medical practitioner against whom a complaint may have been lodged. As I pointed out, in such eases it would not bring a lengthsman or other per­son from a distant part and thus compel him to lose a week's work, but would arrauge for a stipendiary magistrate to get a statement from him. As I pointed out, on occasions the board in its wisdom will decide that it is a fair thing to summon a doctor to appear before it. It may tender him reasonable travelling expenses. I take it that any medical man will ·be only too pleased to have the opportunity to come before the board to endeavour to clear himself cif any <•.harge or charges levelled against him.

Let us hear tlle position as stated by a member of the board itself. I will read an extract from the minutes of a deputation that waited on me. I will not mention the doctor's name. He stated-

" Under section 13, the board is empow­ered to summon any person before it and provided such person is offered reasonable expenses he shall obey such summons· and answer all lawful questions put to him or render himself liable upon conviction to a :fine not exceeding £20. At present tlle board is investigating information sub­mitted to it by a Government department concerning a medical certificate issued by a medical practitioner to one of its officers. The practitioner has been fur11ished with a copy of the information submitted to the board and asked to furnish the board with his explanation. He has not done so. The board desires to summon him for the pur­pose of examining him in relation to the matter but :finds that to ensure his attendance would involve it in an expendi­ture of about £50.''

Are hon. members reasonable when they ask that a medical practitioner against whom a complaint has been lodged by a Government department for issuing false certificates­and it would not launch that complaint except on fairly good foundations-and who is asked to make a statement to the board and who refuses should, if he is summoned to Brisbane, be paid reasonable expenses~ The whole thing is ridiculous.

Mr. Wanstall: You know we are talking about the innocent witness, not the person charged.

:.::356 Medical Acts [ASSEMBLY.] Amendment Bill.

Mr. FOLEY: We have made provision Lr the innocent witness.

Mr. Wanstall: Where?

Mr. FOLEY: We are making prov1s1on that the innocent witness shall be interro· gated by a stipendiary magistrate so that individuals will not be involved in travelling long distances. The medical man I quoted goes on to say-

'' The board admits its liability to pay the expenses of. witnesses it may call in the course of its investigation, but it is of the opinion it should not be liable for such expenses when the person to be sum· moned is the medical practitioner who may, depending upon the 1 result of the investigation, be charged before the Medical Assessment Tribunal with misconduct in a professional respect.' '

That is what the attitude is. We have, as a result of the representation of the board, made provision that the innocent witnesses members have referred to may be examined in Charleville, Cunnamnlla, Qnilpie, Mt. l sa, or wherever it may be.

Mr. Hiley: Supposing he has to come to Brisbane for cross-examination, what do you give him'

Mr. FOLEY: There is no need for him to come for cross-examination. At this stage the board is only holding an inqniry to allow it to determine certain facts to enable it to decide whether a: prima-facie case exists. If it reaches the point where it is declared that a prima-facie case exists, that is snbmitted to the tribunal and that person has to come to Brisbane. If' the board calls the pl'rson a' a witness it pays his expc•ns<'s.

Mr. Pie: Where?

Mr. FOLEY: It does. If the individual is called to Brisbane as a witness of the ~fodieal Board at the tribnnal that indivi­c1ual is paid his expenses.

Mr. Hiley: Under what authority?

Mr. FOLEY: The board pays his expenses.

Mr. Hiley: Under what authority?

Mr. FOLEY: I gave you the opinion from a member of the board itself. He says-

'' The board admits its liability to pay the expenses of witnesses. it may call in the course of its investigation, but it is of the opinion it should not be liable for such expenses when the person to be sum­moned is .the medical practitioner who may, depending upon the result of his investigation, be charged before the Medical Assessment Tribmml with mis­eonduet in a professional respect..''

That is the position in regard to the indivi­dual who is called. 'I'he Medical Board has always met their expenses. The sam.e thing ~•pplies if, after a prima-facie case has been made out, the person is snmmoned as a witness by the board to the tribunal hearing; lm is paid his expenses. That follows naturally.

Apparently, as this is the first day of the week, members are fresh and in the right hnmonr for debate, and are trying them· selves out for some bigger issue that may follow. There is nothing in the criticism mised. .\mple provision is' made so that no injnry may be done to any person as a resnlt of the Bill.

Mr. PIE (Windsor) (3.55 p.m.) : The Minister has accused ns of splitting straws over the last two issues. I say very definitely that we are fighting to nvoid a gross mis­carriage of jnstice. We have no desire to argue needlessly at this stage of the session, but I do say emphatically that irrespective of how long the session will last I am not prepn red to see legislation go through that I beliew to be a groes miscarriage of jnstice.

As far as the Medical Tribunal is concerned, there may be something in what the Minis­tel' has said; bnt the witness who is brought in, the man whom the Government are snp­posed to represent, the linesman referred to by the hon member--

Mr. Luckins: He is forgotten.

Mr. PIE: He is forgotten, as the hon. 1w•mhor for Maree savs. The hon. member dueo; not cRre if he is bronght down from ('!Jn rlrvillu and loses a week's wages. He RH ir1, '' \Ve will look after him.'' How are ynu g·oing to look after him~ The tribnnal ~tn~not giye him any costs. Under the Act 1t 1s clear that he is allowed only travelling expenses.

Mr. Foley: I have read to you the statement of the member of the board.

Mr. PIE: The Minister has no right uwler the woviso in sub-seethm (2) of seeti.on 33, which says-

'' Snbjcct to this Act the judge shall haYe all the powers, jurisdiction and anthority of a judge of the Supreme' Conrt of Qneensland in and with respect to the t>Xe-rcise lly him of all or a'ny of his powers, authorities, and jurisdiction under this Act except the power to award costs.''

Who will give this man who is thus brought down his costs~

Mr. Foley: You have switched.

Mr. PIE: Who is doing the switching?

Mr. Foley: It is section 13 we are amending. ·

Mr. PIE: Let us get down to tin-tacks. Under this provision a stipendiary magistrate in Charleville calls as a witness a man who charges a medical practitioner with some­thing. A prima-facie case is established, That witness may be entirely innocent but it will be necessary for him to be bronght to Brisbane to be cross-examined to ascertain whether the charge is right or wrong.

Mr. Foley: Is this the hearing before the tribnnnl ~

Mr. PIE: Yes.

Medical Acts (11 APRIL.] Amendment Bill. 235'1

Mr. Foley: You are not dealing with that here. rllis amendment deals Wlth the board's jurisdiction.

Mr. PIE : The Minister will not side­track me. A pnma-rac1e case is established in Charleville. It is based on the evidence of innocent witnesses who are dragged in. It comes down and is recommended to the board as a proper prima-facie case. The board then takes it to the tribunal. The tribunal thinks there is a doubt about the evidence of this innocent witness and decides that he or she must come here and appear before the tribunal for cross-examination but under this Bill this witness is allowed only reasonable travelling expenses. Who is to pay the board~ Let the Minister tell us whether the Government intend to pay it. Who is to pay out-of-pocket expenses going round the town while he is here and who will pay for the loss of wages~

Mr. Foley: The tribunal has no power to award co't -,.

Mr. PIE: Under the Act the tribunal cannot award costs. Who is to pay the costs~

Mr. Foley: You are confusing the hear­ing before the tribunal with the hearing before the board.

Mr. PIE: I am not confusing anything. We ask who is to pay the costs of a witness, say a linesman mentioned by the Minister, brought from Charleville~ We contend that it is wrong to limit it to travelling expenses. He should be allowed reasonable expenses, and this term would include loss of wages. We are not fighting for the medical practitioner but for the innocent witnesses. Something must be done. Instead of splitting straws we are bringing before the Minister very important principles involved in this Bill and I am sure that had he not been badly advised he would have accepted the amendment brought forward by my friend, the hon. member for Toowong.

Then as to the question of costs of the medical pmctitioner who is entirely innocent. He may be in I'risbane for a month. Who will carry on his practice while he is away~ He will have to pay a locum tenens and that would cost about £20 a week. His expenses coming here to defend himself would run into about £150 and it may be that he is innocent and is defending himself against some false evidence brought before a stipen­diary magistrate who was deputed to gather evidence to establish a prima-facie case. He may not be heard by the magistrate and will not be able to refute the statements. It is really a gross miscarriage of justice and I feel that the Minister realis09 it.

We have done our best to avoid putting something into this Bill that will altrr the complexion of the Act. We want to give a fair deal to e.-eryone. We want particu­lnrly to give a fair deal to an innocent person •Yho may be ehargrd under this Act, and we want to give a fair deal also to innocent witnessrs who are brought in. I do not cnre that the Minister states that these

witnesses must be examined eventually before the tribunal, if there is anything in the case. If important evidence is submitted by a person who is dragged into it and a prima­facie case is established the case goes to the board and then to the tribunal and that person must be examined by the tribunal. I ask my learned friend from Toowong if that is not right~ He states that it is right and I accept his opinion. I might add that I am getting it free and it is the only place I do get .it free. (Laughter.) I accept it although it is free because Iknow it is good advice. I know that it is right, otherwise we should not be fighting the issue in thfl way we are.

Hon. T. A. FOLEY (Norman by-Secretary for Health and Home Affairs) ( 4.il p.m.): I do not desire to prolong the argument unnecessarily but I do wish to point out that hon. members are confusing the juris­diction of the Medical Board with that of the Medical Assessment Tribunal and they are endeavouring to build a case on totally wrong premises. We are merely amending section 13 of the Act by inserting a new paragraph to provide that-

" Notwithstanding anything to the con­trary contained in any Act or law it shall be lawful for the board, with the approval of the Minister, to issue an order directing any person or persons named in the order requiring him or them to attend before a stipendiary magistrate, named in tl1e order, for the purpose of being examined on oath before such stipendiary magis­trate with respect to any matter within the jurisdiction of the board.''

Hon. members will note that it is within the jurisdiction of the board, not of the Medical Assessment Tribunal.

By inserting this paragraph, we are avoid­ing the necessity and expepse of bringing witnesses from inland portions of the State to Brisbane. The board may have occasion to summon a medical practitioner to attend before it in Brisbane, and in that event it may offer him reasonable travelling expenses.

After the board ha-s inquired into the matter and satisfied itself that there is a prima-facie case, the matter then goes before the Medical Assessment Tribunal and when it reaches that stage any lengthsman or citi­zen at Charleville or anv other part of the State who is asked by the board to attend before the tribunal as' a witness is paid his expenses by the board.

Mr. Wan stall: What expenses?

Mr. FOLEY: The expenses involved.

Mr. Wanstall: The whole of them?

Mr. FOLEY: Yes.

Mr. Wan stall: Under what authority does it pay them~

Mr. FOLEY: Unde1· its own jurisdiction as a board.

Mr. J. F. Barnes: What authority by Iaw9 It has no authoritv l1y ]a,Y.

Mr. WanstaU: Is it an ex-gratia pay­ment? He has no right to it.

[ASSEMl3L Y.] Amendment Bill •

. M.r. FOLEY: Section 14 of the Act pro­vides that all expenses incurred by or in eonneetion .with the tribunal shall be paid by the board out of its funds. That is clear enough.

. This ~orning. I quoted certain expenses meurred m particular easoo. Take the ease of Dr. Miehel as an example. In his first e3;se the expenses paid by the board to Witnesses amounted to £68 6s. 6d. The expenses paid to witnesses by the board in connection with his appeal amounted to £62 5s. The board paid those expenses under the powers conferred upon it by section 14.

Mr. J. F. JBa:rnes: What about Dr. Max l\fichel 's witnooses ~

.Mr. FOLEY.:. We,arenot dealing with the Witnesses of a1_1y mdividual who may be ~harged. The 1ssue, we have been debating 1s the ai¥endment of section 13. The matter was raised first by the hon. member for Toowong, but then hon. members became I'.Onfused with regard to witnesses appearing before the board and witnesses attending b~fore the tribunal. Those are two totally chfferent matters. All we are doing is making prov~sion for witnesses to appear before a m~g1strate and m~k? a statement or give ev1dence, thus avo1dmg the necessity and expense of travelling to Brisbane. In an exceptional case, however, the board maY summon a medical practitioner, in his own interests and in the interests of the profes­sion, to appear before it, and in that case we are providing that he may be paid reasonable travelling expenses, and I think that is only fair.

Clause 3, as read, agreed to. Clause 4,-Amendment of section 33 ;

:\iedical Assessment Tribunal, power of assessors-

Jtlr. WAN STALL (Toowong) ( 4.9 p.m.): move tho following amendment:-

"On page 3, fine 3, after the word ' proceedings, ' insert the word-

' and'~'' It will then read-

" It shall be the duty of the assessors to advise the judge as to what in their opinion is the proper determination of any question of fact which may arise in respect of any matter before the tribunal: moreover for the purpose of arriving at a proper deter­mination of any 8UCh question of fact, the assessors shall have power and authority to put any question or questions to any witness attending before the tribunal, and moreover may discuss, during the hearing of the proceedings and before the tri­bunal, any such questions of fact with any counsel appearing for any of the parties before such tribunal.''

'l'he amendment will make it quite clear that the assessors can discuss these matters with counsel only in the presence of the tribunal, while the tribunal is sitting. I pointed out on the second reading of the Bill that hecause of the unrestricted wording of the

clause an assessor could ask a question. of counsel while the proceedings were still current and not necessarily before the tri­bunal. You will see that the proceedings are current from day to day. I propose in my amendment to qualify the meaning of the clause by saying ''and before the tribunal'' which means before the tribunal while it is actually in session. The clause as it stands could mean that such a question could be asked of counsel while the tribunal was not actually in session. The proceedings may extend over several days but they may begin today and adjourn at 4.30 p.m. until 10 o'clock tomorrow. The proceedings are still before the trib.unal and the time between 4.30 p.m. and 10 o'clock the following day constitutes a time when the matter is before the tri­bunal. Therefore, it would be possible for an assessor to discuss with counsel in the absence of the parties and after the tribunal had risen from its session for the day any matter relating to the proceedings-that is, any matter that had been given in evidence that day or was to be given the following day. I realise that that is not the intention of the Minister but the Minister should be explicit and make the Bill perfectly clear. Theso matters should be discussed by the assessor only in the presence of counsel for both parties, and in the presence of the judge, and that purpose will be achieved by my amendment. It will make it clear that the discussion is to take place only during the hearing of the proceedings before the tribunal-that is, in the presence of the tribunal. If that is done then I shall have no objection to it, but I should resist with all the emphasis at my command any attempt to suggest that a component of a judicial body should so far forget all the traditions and the background-the history-of the British system of justice as to permit a private discussion with a party before the tribunal of any matter relevant to its proceedings. I think it was the hon. member for Bundaberg who in the course of his address reminded me of some very severe censure passed by Mr. ,Justice Reed sitting as a royal com­missioner to inquire into certain allegations concerning happenings at the Gravely camp, in which a military officer in all good faith and in all sincerity had taken some state­ments in the absence of the accused party. I know that military officer very well and .I know him to be a very fair and impartial man. At the same time it does affect the principle that no component of a judicial body-and an assessor is a component of such a body-should discuss the proceedings with one side or the other in the absence of the other. Although the Minister has said that that is not intended the clause is so loosely drawn that it would enable it to be done and I want it tightened up in such a way as to make it impossible.

Since I have been in this Chamber I have endeavoured to help in the proper expression of the meaning that is intended to be given to our legislation. I have on many occasions drawn attention to the loose draftsmanship in many Bills and in that I have the support of every court in Queensland and a number

Medical Acts [11 ,ru;RIL.) Amendment Bill. 2359

of courts in the Commonwealth of Australia. There is a tendency, not only in this Parlia­ment but in other Parliaments as well; to say one thing and mean another. If you were to pick up a volume of the law reports you would find strong criticism of this loose­ness in draftsmanship. I realise how difficult the job is b.ut at the same time we shOuld not give a clause a wider meaning than it was intended to have nor should we be too stiff-necked or too proud to admit that the way in which we seek to express it leaves room for a correction in the interests of clarity.

Hon. T. A. FOLEY (Normanby-Secretary for Health and Home Affairs) (4;.14 p.m.): I cannot accept the amendment. Again we have a demonstration of how legal men carry on their profession. One would think that the hon. member for Toowong was trying to string out the hearing here so that his fee for it would be very much greater than otherwise.

I am not trained in the interpretation of legal phraseology but I have at least an elementary understanding of simple English. I cannot see how the hon. member can read into the wording of this clause that an indivi­dual assessor or assessors would be able to int~:-~ogotP or Pxam\ne or diseu~s at a ,hearing before the tribunal unless the matter was before the tribunal. Just let us read the simple wording of this clause-

" moreover for the purpose of arriving at a proper determination of any such ques­tion of fact, the assessors shall have power and authority to put any question or ques­tions to any witness attending before the tribunal''-

And then it goes on-'' and moreover may discuss, during the hearing of the proceedings before the tri­bunal, any such questions of fact with any counsel appearing for any of the parties before such tribunal,''

The words ''may discuss'' means that they "shall have power and authority to put any question or questions to any witness attend­ing before the tribunal and moreover may discuss . . . . before the tribunal any such question of fact.'' As far as I understand the English language that is clear enough­that the Bill empowers the assessors to put a question to a witness at a hearing before the tribunal, not to put a question to a wit­ness or anybody else in any other place than at the hearing before the tribunal. That is as I read it. The insertion of the word ''and'' would be a redundancy. It may be that in a legal argument dictionaries and authorities may be produced-greater authorities than I have-but from the understanding of elemen­tary English that I have it appears to me that the Parliamentary Draftsman has worded the clause sufficiently clearly to enable the assessors to question any witness attend­ing b€fore the tribunal, or to discuss ques­tions of fact before the tribunal.

Mr. WANSTALL (Toowong) ( 4.18 p.m.): The Minister made the mistake of drawing

the attention of hon. members, to the very significant change . in the ' verbiage of this section. He drew attention to the use of the words " any wi~ess a:ttendin,g Mfore the tribunal.'' He drew attention; unwittingly, to the fact that the words '"attending before the tribunal" had in the sooond' part been changed to something else.

Mr. Foley: Read the rest of it.

Mr. WANSTALL: What I am getting at is that if you change the verbi~ge in an. Act of Parliament you are taken to do so dehbilr­ately for the purpose of distinguishing between meanings. The Minister said it was quite clear that the assessors can. question a witness attending before the tril:\u:nal. That is clear. Why not continue tbat, clear pbras­ing in the second part ~f · th.e paragraph'? Why not give that clanty with respect to assessors discussing any, question of facU Why change the verbiage¥ When you do deliberately alter the expression as is the case here you alter the meaning. That is one of th~ tenets of interpret11tion-that you do so for the purpose of giving a different meaning to what you say. To insert the word "and" would make the meaning quite clear. It would make it clear that the assessor had the right to discuss the matter with counsel only in the presence of the tribunal.

There seems to be some reason for the alteration of the language. To alter language is always signifieant. You do not adopt one phrase now, and reject it and adopt another one later on, exceJ;lt for a purpo~e, to convey a different meanmg. That bemg so, you are endeavouring by abandoning the use of the phrase ''attending before t?e tribunal" and substituting the words '' dunng the hear­ing of the proceedings before the tribunal'' to get some different meaning. If the first one is limited to actual attendance before the tribunal, why not continue that phrase if that is still what you want to do' So when the Minister drew attention to the change of language he simply emphasised my point.

Amendment (Mr. Wanstall) negatived.

Mr. J, F. BARNES (Bundaberg) (4.20 p.m.): I move the following amendment:­

''On page 3, line 5, add the words-

' providing that the medical expe~t, ~or the defence has the same power.

The purpose of the amendment is to give the experts for the defence th~ same power as the complainant. The complamant, through the assessor, has the power to examine the witness himself.

When I was speaking this mor~ing on this subject I pointed out the necessity for such a thing. I took a considerable time to point out the lack of knowledge of medicine, and in particular the lack of knowledge of the assessors who have been sitting already. I pointed out forcibly this morning that the assessors advised the judge in the Michel ease that the speculum could be used on .a woman without her knowledge. That IS

to-day's funny story. In that particular case, the assessors, whoever they may have been, would be in possession of that

2360 Medical Acts [ASSEMBLY.] Amendment Bill.

knowledge; they would know whether that could be a fact or not. I could point out cases that were more complicated and more technical. · I explained the zip-fastener .case, proving that in that. case counsel for the defence, who was the hon. member for Too­wong, did not see the point, nor did the doctor herself, but the expert radiologist called in on that occasion, Dr. Max Michel, saw the point; he had the privilege of coming before the Medical Board in the above case, but .that power was not granted prior to t,4e success of his appeal. Prior to that it was heard in the absence of s,Ji.ch persons. By virtue of that concession the medical exp,ert for the defence was allowed to be present, t:tnd hear what was said. It was obvious that for the prosecution to succeed the complainant would have to submit X-ray films. Being an expert called by the defence, this doctor could see straightaway, on examination of the film, a senous loophole the experts for the prosecution knew nothing about.

There is a dual point there. The first point is that it protected the defence because there was an X-ray expert of wide experi­~mce, a man who attended X-ray conferences in London and in Paris in 1926 and in Stock­holm in 1925, and whose suggested methods are practised world-wide, who proved t.hat the experts for the prosecution knew nothing about it. The experts for the prosecution should have seen that the fact that the zip­fastener appearance would be a colossal feature against their own case-it would put their own case in the woodheap. Experts could not see this and allowed an X-ray to be exhibited for the prosecution that proved successful for the defence. In the first place the defendant's counsel did not see the point and the doctor, not being trained in X-ray technology, could not see the point; but the expert X-ray technologist could see the point and got the defendant off. This, plus the fact that the prosecution could not see the point, is the reason for my amendment. Then they wonld not have presented the film as an exhibit. That is purely a small case in comparison with some of the complications that appear in medicine.

To get over this difficulty I suggest, as I suggested to the Minister this morning, that an expert for the defence also should have the right to cross-examine or examine a witness. ·I was fair this morning and I will be fair now. I have no objection to giving also an added expert to the prosecu­tion. The prosecution should have an expert. We should have expert assessors for each case-not assessors as they have today, not as in 1942 where they appointed a police surgeon in lieu of Cilento who was away. That man sits there permanently. It is too absurd to tell me that the doctor perma­nently appointed by the Government has the knowlerJg-e to deal with every particular case.

Dr. Arnheim, who was the person charged, would know her case. I should know because I have stated in this Chamber that I was the only person who understood the Act under which I was charged because it was I who was charged. In this particular case Dr.

Arnheim was charged. One would think she would be in a position to understand the thing, but not being an expert in radiology she could not understand the X-ray film. If she, being the doctor charged, could not understand it, counsel could not understanr"l it. Well, why not give the court the necessary power, on the principle that it is better that 99 g-uilty personB be let off scot-free than that one innocent person be convicted'

Despite the Minister's statements to the contrary, the Medical Act does not provide for giving the medical practitioner concerned his costs. Dr. Michel went through the Medical Assessment Tribunal without costs, and he won the Full Court appeal without costs. So broke was he that he was embar­rassed in the ..bull Court and had to defend his own case, in which he was successful. He did not lose £150 by way of travelling expenses .and loss of wages, as was suggested. He lost thousands of pounds by way of loss of practice in addi· tion to costs. One need only have experi· ence of one or two trials to know how much a case in the Supreme Court costs. I have had considerable experience in that respect.

I am trying to induce the Government to introduce a principle whereby it is impossible for a defendant, if guilty, to escape the net. If the Government have an assessor who is not an expert in a particular matter, an expert for the prosecution could examine the witness, and the defendant also could call some expert to examine the witness. The counsel who was in the Arnheim ease stated that he had to study three text-books in one week. It is impossible for a non-medical man to study three text-b{)oh in one week and understand them. Doctors have been studying them all their lives and they do not unde·rstand them, therefore h0w on earth could a layman do this? If I was .a doctor charged under this Act with something con­nected with X-ray work, I should call for the best expert on the subject in Queensland. If I was charged with something in refer­ence to urology, I should ask myself who was the best man in this subject in Queensland. I would then approach Dr. Stanley Roe, or Dr. Ja'ck Power, who is the second best. I should call one of these people as experts. If anybody is in the poPition to k·,ow the snh;ect. they are in that position. This principle of having a ''set'' assessor in all wrong. The order in council in 1942 provides for Dr. Thomson as assessor, but if my suggestion is carried out it would not matter so much, because there would be· an expert for the defence and an expert for the prosecution. '1 hat is proving what I have been saying all morn­ing, and from the facts outlined by me this morning I haYe grave doubts of my success, because of the misleading state­ments that have been made in connection with this Act ever since it was introduced in 1939. As I said, the Minister introducing it misled in ]939. HP hes m'sled every time since, and he misled on this occasion also. I must congratulate the Minister on admitting making the third misleading state­ment. It is something for the Minister to

admit to the hon. member for Bundaberg

Medical Acts (11 APRIL.) Amendment Bill. 2361

that he made a mistake. That is the best admission that ever occurred on that side of the Committee.

Hon. T. A. FOLEY (Norman by-Secretary for Health and Home Affairs) (4.32 p.m.): The suggestion contained in the amendment is most unusual and, might I say, uncalled for, because the whole conception of the Medical Assessment Tribunal would be altered if we were to agree to it. For instance, if we agreed to allow a medical expert called by the defendant to give certain e·vidence to exercise the privilege of cross-examining the assessors, counsel or anyone else, we should have to give the same concession to all others, and before we knew where we were the whole of the proceedings of the tribunal would be .a rout. That is what it would amount to when all is said and done. The present system makes for the better control and discipline of medical practitioners, including specialists, and the better deter­mination of prescribed medical matters. It provides that there shall be a Medical Assessment Tribunal, constituted by a judge of the Supreme Court, with two assessors.

Sub-section (3) of section 33 provides that the Uove1·nor lll Co,mcH ~mall app01nt two medical practitioners who shall sit as assessors with the judge for the time being const~+,+in,-y thP t~ihnn.,1. 1:-x.,..h.-.t 'vP fire proposing is that these two medical assessors, one "1 l'u"1teu lly ti1e l:lritJSll .Med.1~al Assucla­tion awl one appointed hv the Minister, shall have the right to question any witness or counsel or to advise the judge on a question of medical fact. If the expert mentioned by the hon. member for Bundaberg is called in by the defendant he has certain rights in that he will be placed in the witness box and sworn and the defending counsel will question him on certain matters in order to adduce such evidence as he hopes will influence the tribunal. Surely we do not need any more than that~ If the experts are given the right to cross-examine a witness--

Mr. J. F. Barnes: Cross-examine or examine~

Mr. FOLE'¥: If they are given the right to cross-exmninc or examine, then the same right mnst be given to every witness who is brou:;·ht l1cfore the tribunal. There is ample prodBion for the expert who may be brought in by the defending counsel to give the tribnnnl nll the knowledge he posse8ses on any mntter before it. If he cannot convince the tribunal with his submissions surely he can­not hope to do an:v more by cross-examining the assessors or witnesses or counsel. In the circumstances I cannot accept the amend­ment.

Mr. J. F. BARNES (Bundaberg) (4.35 p.m.): It is amusing to me to see how the ::\Iini' ~er can t~>m in er hilrself. I went to great pains this morning to explain the case of the speculum and to point out how the Minister had mioled the A'lSemblv. The Minister hril. informPd the Assembly that on no previous occasion had the assessors been askPd qucJti()]]s bv the judge. I quoted two specific in6bmces in one case to show that

the Minister had misled the House. The Minister is now trying to mislead the Committee still further. In the particular case I cited the assessors wrongly advised the judge and anyone with any intelligence knows it is impossible to insert a speculum 2 inches in diameter and between 5 and 6 inches long into the vagina without the patient's knowing anything about it when the patient is not under an anaesthetic. In this case to which I have referred one of the assessors advised the judge that it was possible to insert a 5 or 6-inch speculum into the vagina without the patient's knowing anything about it. As I said this morning, that is too silly even for a five-year-old boy to accept, and, as I also s.aid this morning, any fellow doctors reading that evidence would say, ''That is today's funny story; it should be sent to Ripley.'' The judge in the Full Court case who was not a doctor of medi­cine, said that the judge in the lower court had been influenced by the assessor's opinion; in other words, that the judge in the lower court accepted the opinion of the assessor that such a thing could be done, despite the fact that the witness herself said that no speculum was inserted in her vagina. The reason for that artion was that it had to be proved beyond doubt that Dr. Max Michel deliberately made a false diagnosis. If he diagnosed the woman's complaint as cancer that would not be a deliberately false diagnosis because he could be honestly wrong, but by virtue of using the speculum he was able to examine the cervix. He could not help seeing the cervix and he would also see on the cerxiv that there was a certain sore or eruption there. After seeing that, the next thing for the doctor to do would be to take a section of that cervix and send it away to an analyst. If the analyst reported that it was not cancer and if the doc.tor then said that tlw woman hnd cnncer the doctor would be wilfully and criminally eommittin."' a fraud. In this case the doctor said he ns~d a speculum. which is most neces­sary. The "American Medical Journal" of 13 October, 1945, which I quoted this morn­ing, said that modern medicine is focused ~n endocrinology, which was almost unknown m Queensland at the particular time.

The journal also said that today we have gone to the other extreme, the doctors are not looking for orf!anic dioeoses that may be in the vagina but are talking of endocrine trouble. In this case Dr. Miehel used the speculum to examine the vagina and saw no organic disea8A there. Hr did not depend on his own evesight but took a blood test, which he sent "to the GO\'ernmrnt Laboratory, rnd it proved conclusively that the \YOman was not suffering from svphilis, which is one of the organic diseases th:-1t n·ight hnve been mistalren for endocrine trouble. This man goes to court and his case should havp bren plain sailing. It would never haYe 'one to the court if he had been given a h'aring before the ~fcdienl Bo"rc1. If the experts had been there t.he matter would have been thrown out and a trrTat deal of money saved. Thnt is the reason ''hv I usked that a royal commission should- he appointed to inquire into th' matter. The

2362 Vagrants, Gaming, and Other (ASSEMBLY.] O.ffencl!8 Acts Amendt. Bill.

whole case was red-hot, got up by Cilento the prosecutor, Cilento the starter and referee, and Cilento the judge to find Dr. Max Michel guilty. Before the Medical Assessment Tribunal the whole thing was a farce. I ask and I ask 10,000 times that the Govern­ment should go a: bit further now and give the right to the doctor to appeal to the Full Court on the facts. It is the facts that I am concerned with most, not the law. A man may be broken, lose £10,000, if he has not the right to appeal to the Full Court on th!'l facts. That is absolutely absurd. There still should be a royal commission on this case.

The TEMPORARY CHAIRMAN: The question is that the words proposed to be inserted be so inserted. All those who are of that opinion say "Aye"; on the contrary " No. " I think the "Noes " have it.

Mr. J. F. BABNES: Divide! There being only one teller for the ''Ayes''

the Tempo,rary Chairman declared the ques­tion in the negative.

Clause 4, as read, agreed to. Clause 5-Amendment of section 35; Mis­

conduct in a professional resp_e~:t-118 read, agreed· t{),' ·

Bill reported without amendment.

THIRD RE~~NG.

Bill, on motion of Mr. Foley, read a third time.

VAGRANTS, GAMING, OFFENCES . AC'I;S BILL.

AND OTHER AMEND MEN'.~;

SECOND READING.

~on. T. A.JrOLEY (Normanby-Secretary "!or Health and Home Affairs) (4.46 p.m.):

move-' ' That the Bill be now read a second

~1me.''

I gave a very full explanation of the prin­ciples of the Bill on the initiation. I might briefly state here that the Bill is the result of certain recommendations of the committee of inquiry regarding sexual offences appointed in 1944. It provides for a stricter regula­tion of unaccompanied children under the age of 14 years in picture theatres. Certain areas are named. in the Bill. It is not pro­posed at this stage to extend its operations to the hundred and one small country centres throughout the State because ample protec­tion is given there, the children being accom­panied by their parents. Generally, certain obligations are thrown on the licensees as well as the employees of picture theatres to supervise and guard children in a specified part of the theatre, as well as in its other parts.

I have had a discussion with some repre­sentatives of picture theatre proprietors since the initiation stage. It was agreed by all parties that with the co-operation of the police and picture-show proprietors ample space will be allotted by licensees for unac-

companied children under the age of 14 years. It was pointed out to me that on occasions a special picture may be shown in Brisbane or in some other part of the State where this measure will operate specially designed for children and that it will draw exceptionally large audiences of children. In those cases of course it would be an utter impossibility to set aside a particular part of the theatre for unaccompanied children. We have the assurance of the fullest co-operation between the police and picture-show proprietors and that everything possible would be done on such occasions to protect the large audience of children that will be present.

I have also had a visit from a representa­tive of the employees in our picture theatres. There exists a dislike to requiring the indi­vidual employee to act as a policeman, as it were, under certain provisions of this Bill, which empowers employees to detain certail!. individuals if they find them in any way interfering with children in the theatre. As I pointed out to him, the Bill is not man­datory in that respect. It confers certain powers on the employees or licensee to detain a person, such as a pervert or one who may be drunk and interfere with children in any part of the theatre. Taken on the whole, most of the employees will on such occasions respond and take steps to detain such a man until the police arrive and take him in charge. That is only a reasonable pre­caution.

I want to emphasise that there is no idea in this measure of imposing any impossible conditions either on picture-show proprietors or any employee of a picture show. The idea behind the measure is to give the greatest possible protection to unaccompanied children under the age of 14. As I said, with the fullest co-operation of the picture interests and the police, I am satisfied that the average mother will have sufficient con­fidence to send her children unaccompanied to any picture, should she be disposed to do so.

ltlr. MACDONALD (Stanley) (4.51 p.m.): I agree with the Minister that this Bill was fully discussed on the initiatory stage. I am glad to say that for once he has departed from his usual custom on the second read­ing and he has not indulged in any tiresome reiteration.

There are new provisions, the :first that the licensee of any picture theatre in the principal cities shall provide and maintain seating accommodation separate and dis­tinct from that for adult persons for all children under or apparently under the age of 14 years. Under the second provision the licensee must supervise the conduct of all childre-n attending the picture theatre, whether such children are occupying special seating accommodation in the picture theatre concerned or not, and safeguard them from molestation. Provision is made that he and his employees may arrest offenders and hand them over to the police. That might be a somewhat objectionable feature. but for the

Workers' Accommodation Acts [ll APRIL.] Amendment BiU. 2363

life of me I cannot see how the Minister ean police this Act otherwise.

The third principle is that by order in council the Act may be extended to any other city or town or part of the State. Whilst recognising that the Minister fully sub­scribes to the sentiments expressed by Mr. Justice Ross Philp, I think this Bill should have general application instead of particu­larising those places. It should have general application and by order in council exempt those portions or particular places. That is the only serious point of difference between us. I do think the Minister should have given sedous consideration to making the Bill of general application to the whole State and then by order in council except or exempt any specific areas.

Motion (Mr. Foley) agreed to.

CoMMITTEE.

(Mr. Devries, Gregory, in the chair.) Clauses 1 and 2, as read, agreed to. Bill reported without amendment.

THIRD READING.

Bill, on motion of Mr. Foley, read a third time.

WORKERS' ACCOMMODATION ACTS AMENDMENT BILL.

SECOND READING.

Hon. V. C. GAIR (South Brisbane­Secretary for Labour and Employment and Mines) (4.56 p.m.): I move-

"That the Bill be now read a second time.''

A very full discussion took place on the introduction of this small Bill and I feel there is no need to say anything more in connec­tion with it.

Mr. SPARKES (Aubigny) (4.57 p.m.): As the hon. gentleman says, the Bill is very short and there is very little in it; in faet, there is nothing to alter the existing law except as to the accommodation erected or in the course of erection in 1915.

There is only one point I need to mention­! brought it up on the introduction-and that is that I do hope the Minister will take into consideration the dearness of materials at the present moment. No-one knows better than the hon. gentleman that that is so. Members representing country electorates will say the same. It is quite an every-day experience. I never receive a mail without getting two or three and sometim8s half-a­dozen letters wanting either corrugated or galvanised iron.

Mr. Healy: Where do you get it?

Mr. SPARKES: If the hon. member will put me onto some I will give him plenty of orders. I do not know whether he is merely being facetious but the position is that the Minister, if mv memory serves me rightly, said at the introductory stage of this Bill that no-one would be asked to do

this work until he was in a position to do it. I take it that the Minister means that until materials are available in the necessary quantities no-one will be hurt by the enfo;ce­ment of this Bill. I put that fairly plamly to the Minister. I know that the materials will include partition work but I also know that quite a lot will necessitate iron. Today iron is a very scarce commodity and I as~ that this Bill be not put into operation until the supply of these commodities becomee normal.

The Opposition are quite happy in support­ing the Bill. We believe in bett.er hous~ng conditions for any type of worker. Speakmg personally, as an employer, I believe that the better the conditions given to the worker the better work one gets from the worker. For that reason the Opposition have no grouch at all with the Bill; we only hope-and I feel sure the Minister will act in that way­that this Bill will not be. enforced until the necessary materials are available. Of course, we know that there are bad organisers just as there are bad employers. One organiser may be roosonable but with another power goes to his head and he demands that this and that be done and he will ha've it done now. The Minister will have to guard against this sort of thing. The ordinary organiser knows his job. Snch men const.itutP the very big proportion of organisers, I will admi~. The large proportion of employers, too, w1Il require no compulsion but will do the work of their own free will. The Act having been in operation so long-, surely it is not proposed to enforce the conditions of the Bill, just at the conclusion of the Great War, and I appeal to the Minister not to do so.

Hon. V. C. GAIR (South Brisbane­Secretary for Labour and Employment and Mines) ( 5.1 p.m.), in reply: I feel sure there is little necessity for me to reassure the hon. member for Aubigny that a common-sense and reasonable attitude will be adopted in connec­tion with this amendment of the law. From his own personal experience ovPr the years he knows that the administration of the Act has been common-sense and reasonahle. No­one has been haras-sed and no-one has been treated unreasonably and I particularly point out that during the war years there have been no prosecutions for non-com]Jliance of the provisions of the Act unless there was a flagrant attempt to disregard them. I appreciate :iust a's well as the hon. me:n?er the di:fficultv that exists in obta1mng materials for construction at' preeent but we have reason to believe, and have evidence to support our belief, that in some instances -I must say few in number--owners of property are defiant. Where they could ma'k;e prmision on the lines provided for in this amendment, they are defiant and refuse to give effect to an order.

Mr. Sparkes: I am not defending them.

Mr. GAIR: I know the hon. member is not but I unhesitatingly say that the~ peovle will be dealt with, and unless I dealt With them I should be recreant to the oath I have taken as Minis>ter to see that the law of the

2364 Inspection of Machinery Acts [ASSEMBLY.] Amendment BiU.

land is properly administered and given effect to. If there is a legitimate and genuine case there will be no harassing; the hon. member can be assured of that.

No organiser or inspector is going to harass the owner of a property if that owner plays the game. The hon. member must under· stand that no property-owner can be prose­cuted by an A.W.U. organiser or even by a labour inspector but that all prosecutions have to be authorised by the Minister. In every case that has come before me-and again they have been few in number-! have asked, ''Can these people obtain the material necessary for carrying out these require­mentsP' If I am satisfied that the owner of a property has a legitimate excuse the hon. member can be assured that I shall not be so unreasonable or so foolish as to press for a prosecution.

Motion (Mr. Gair) agreed to.

CoMMITTEE.

(Mr. Devries, Gregory, in the chair.) Clause 1-Short title and construction­

agreed to.

Clause 2-Amendment of section 6 (2) · What is proper and sufficient accommoda~ tion-

Mr. SPARKES (Aubigny) (5.5 p.m.): I still think that the Minister rather misunder­stands me. He seems to have the idea that I am worried about the man who does not carry out his obligations.

Mr. Gair: Not at all.

Mr. SP ARKES: I am not concerned with that man at all.

Clause 2, as read, agreed to. Bill reported without amendment.

THIRD READING.

Bill, 0'1 lll•'•·tlon of Mr. Gair, read a third time.

INSPECTION OF MACHINERY ACTS AMENDMENT BILL.

SECOND READING.

Hon. V. C. GAIR (South Brisbane­Secretary for Labour and Employment and Mines) (5.7 p.m.): I move-

'' That the Bill be now read a second time.''

I have no intent~on of covering the ground I tl'aversed when mtroducing the Bill. Hon. meu1bers now have copies of the measure and I am. sure. th~y will find that the principles contamed 111 It were fully explained by me when I introduced it.

The Leader of the Opposition referred to the granting of cErtificates to motor mech­ani;s. He said that at present there are only 41 registered motor mechanics in this State nine of whom receiyer1 A-f!radP certificateR 'as a result of examination, 12 B-grade certificates as a result of examination and 20 of whom were l!'l'anied certificates be~ause of service. It was apparent to me at the time that the

Leader of the Opposition was misreading the report of the Chief Inspector of Machinery and Scaffolding in that he was quoting the num­ber of those who were registered during the year 1945. Actually, there are 1,449 A-grade motor mechanics in this State and 412 B-grade motor mechanics. There are 126 A-grade motor mechanics who received their certificates after examination and 285 who received B·grade certificates after examina­tion.

The fact of a man's rece1vmg a service certificate does not indicate that he is other than a competent person in that trade. Any person receiving an A-grade certificate of service must have served an apprenticeship or the equivalent of an apprenticeship and an additional five years as a tradesman in some recognised garage or motor works. If his experience is not thoroughly satisfactory to the board he would be required to sit for examination. Rule 15 (A), Schedule II., of the Inspection of Machinery Acts states-

" Examination for motor mcchanics-(1). A candidate for examination for an 'A' grade motor mechanic's certificate shall be required to hold a 'B' grade motor mechanic's certificate for a period of at least 12 months, and prove by evidence satisfactory to the board that during that time he has been employed in a reputable motor garage or workshop where motor vehicles are made or repaired.

''A medical certificate need not be produced.

'' (2) A candidate for examination for a 'B' grade motor mechanic's certificate shall be required to produce evidence satis­factory to the board of having served an apprenticeship to motor engineering for a period of at least four years or to produce evidence satisfactory to the board of having worked for a period of at least four years as a mechanic in a reputable motor garagr or enginering workshop.

''A medical certificate need not be produced.''

In order to entitle an applicant to an A-grade service certificate he must establish that he has had not less than nine years' approved service ancl each applicant is inter­viewed personally by the Chief Inspector or a district inspector. },or a B-grade service certificate the period is seven years' approved service, similarly established. The holding of an A-grade certificate is a guarantee that the holder is competent, if necessary, to take charge of a garage without supervision. A B-grade certificate indicates that the holder, while able to perfoTm work as a motor mechanic under general supervision, is not competent to take sole charge of a garage. It is used as a stepping-stone to enable men to obtain the necessary additional experience to allow of their proceeding to the higher certificate. The Leader of the Opposition quoted from the report for 1945, and made an excusable mistake, probably in a hurry. However, it is untrue to say that there are only 41 certificated motor mechanics in the

Inspection of Machinery Acts [11 APRIL.] Amendment Bill. 2365

State. I have given the correct figures as supplied to me by the Chief Inspector of Machinery.

The Leader of the Opposition also suggested that all motor mechanics should be licensed. I agree that that is a matter worthy of consideration. I also agree with his remarks about placing a car in the hands of an untrained or badly trained or incompetent mechanic, whereby irreparable damage may be done to an engine. It is important that a man to whom is given the responsibility of repairing a motor engine should be qualified. We have our apprenticeship system of train­ing and most boys are well trained and adapted to the work and so become successful mechanics. However, there are others who :ue not so successful, who merely serve their time and get their certifirates at the end of the period. Some, fortunately only a small number, simply comply with the minimum requirements entitling them to their certifi­cates. However, they are at large and do a great dral of harm in destroying engines of new cars. Immediately prior to the war the motor interests, especially the motor mechanics, asked that it should be compul­~ory for .all motor mechanics to hold qualify­mg cnrhficatcs. The matter has not been revived since the termination of the war which is only seven months ago.

I can assure hon. members that when things return to normal and mechanics are again available to the trade, serious consideration \ViJl re given to the issuing of certificates, in other words, to the testing and examina­tion of all mechanics who come out of their apprenticeship and have e:J.:perience for a period of six months in a garage or place of work to ensure that they merit certifica­tion. They will be tested and examined and if proved satisfactory, certificates will be issued to them assuring the public of com­petent service for their cars.

Mr. MULLER (F~ssifern) (5.16 p.m.): I am glad that the Minister appreciates the need to license motor mechanics. I am glad he enlarged on the point which was suggested by the Leader of the- Opposition on the intro­ductory stage of this Bill. It is a very important one. Most of us have had sorry experiences 'in having incompetent motor mechanics fiddling with our motor vehicles. The unfortunate part about it is that we are not aware that a great many of these motor mechanics are not competent until the damage is clone. Some of these men set up in count.rv tO\'mships and pose as competent men, and 'it is only after the lapse of some time that their incompetence is discovered.

There is not much in this Bill but there are one or two points I should like the Minister to explain further. The chief purpose of it is to include electrical power under the powers of machinery inspection existing to-day. On the other hand, we find that such electrical machinery as generators, converters, transformPrs. ani! rrrtifiers still remain uniler the control of the State Electricity Commis­sion. It is strange that whilst one class of electrical machinery is to be brought under

the control of the Machinery Department, other electrical devices will remain outside its control.

There are one or two good features in the Bill. I like the idea of increasing the age limit of youths who are permittc d to operate electrical machinery, but I question whether the increase from 15 to 16 years is sufficient. It is an irresponsible age at which very often boys take undue risk. Another point that needs explanation is as to men who may take charge of boilers. Under the existing Act anyone holding a third-class c·ertificate is permitted to do so. Under this Bill one will require to have a first-class engine-driver's certificate even to act as a driver's assistant. That is very important. A number of our smaller factories are not always in a position to obtain the services of first-class certificated engine-drivers. I am wondering whethe-r it will not embarrass industry in a great many cases if that is the Bill's intention.

There is not a great deal we wish to discuss. The hon. membe-r for Stanley has an amendment to move in the Committee stages and I shall leave di~cussion on that point until we reach it.

Hon. V. C. GAIR (South Brisbane­Secretary for Labour and Employment) (5.20 p.)ll.), in reply: It was found necessary to leave such units as transformers to the State Elec­tricity Commission for inspection. It has a staff of electrical engineers to make such inspec­tions, whereas our inspectors, with few excep­tions, are mechanical engineers only. Their ser­vicps ea n be utilised in the inspection of boilers and other classes of plant. After a consultation between the Chief Inspector of Machinery and the State Electricity Com­mission the amendm<mt proposed was agreed on as the best working arrangement between the two authorities.

Personally, I believe that it will meet the position admirably. It was thought when the State Electricity Commission was estab­lished that it would be able to carry out a great deal more inspection work than it has been able to do up to the present. The war years altered the stage considerably. Tech­nical men were at a premium and those who were available were engaged in war work and were not available to the commission, with the result that a lot of the work had to be carried out by inspectors of machinery. After that experience it was agreed by the two authorities that we should amend the Act so as to restore to the Machinery Depart­ment the inspection of all plants, as outlined in the Bill.

I understood the hon. member for Fassi­fern to say that it would he necessary for the attendant of a boiler to hold a first-class engine-driver's certificate. That is not so. If he reads clause 5 of the Bill he will notice that it sets out the classification of the various certificates and the class of boiler each certificate applies to. Sub-clause (c) says-

'' A third-class engine-driver's certificate shall entitle the holder thereof to have charge of any boiler or boilers to which

2366 Inspection of Machinery Acts [ASSEMBLY.] Amendment Bill.

this Act applies the area or aggregate area of heating surface of which does not exceed 5, 700 square feet.''

111'. Muller: It has limited the capacity of the boiler.

11r. GA.IR: That is so. It has classified the engine-driver's certificate on the capacity of the boiler. I think that is the fairest way of classifying certificates. It is something the union and the department has agreed upon, and I am given to understand that it is not going to affect very many plac;es at all; I think it will apply to only about two large power­houses in the State, and those, two are in Brisbane. ·

Mr. Muller: It will affect some small sawmills.

Mr. GA.m: I doubt it. It puts the maxi­mum only on the third-class certificate. If the capacity of the boiler is less than stated the men with the third-class certificates can manage and take control of it. That is the maximum for a third-class certificate. If it exceeds 5,700 square feet it calls for an operator with a second-class certificate.

Motion (Mr. Gair) agreed to.

COMMITTEE. (Mr. Devries, Gregory, in the chair.)

Clauses 1 and 2, as read, agreed to. Clause 3-Amendment of section 14 ·

Restriction on employment of females and males under certain ages-

Hon. V. C. GA.m (South Brisbane­Secretary for Labour and Employment) (5.24 p.m.): I move the following amendment:­

'' On page 2, line 1, after the figure '3,' insert the figure and brackets-

' (1.).', Amendment agreed to.

Hon. V. C. GAIR (South Brisbane­Secretary for Labour and Employment) (5.26 p.m.) : I move the following amendment:­

''On page 2, after line 3, insert the following new sub-clause:-

' (2.) The provisions of subsection two of the said section fourteen as amended by this section shall come into operation on and from a date to be notified by the Governor in Council by Order in Council published in the "Gazette ". ' "

The reason for this amendment is that since Introducing the Bill a few cases have ·been brought under my notice of apprentices who have been engaged for 9 or 10 months on

After hRYinet 1'f'\ld1ec1 the ar:e of 15, which is the minimum under the Act as it stands, they have been engaged on machinery and they have not yet reached the age of 16 years. Without this amendment these boys would have to be taken off this machinery immediately the Bill was assented to.

Mr. Macdonald: It is to cover the interregnum'

Mr. GA.IR: We want to cover the period as the hon. member auggests, between the passing of the Bill and the time they reach 16 years. They are a very de,se:rving· class, and unless the amendment is made the careers of these boys may be considerably affected. Only a few are involved but they are worthy of the consideration of the Com­mittee.

Amen(4uent (Mr. Gair) agreed to.

Mr. fiCDONALD (Stanley) (5.30 p.m.) : I move the following amendment:-

''On page 2, line 3, after the word 'thereof,' add the follov.-in~ new pnm · graph:-

'Subsection three of section fourteen of the principal Act is amended by add­ing after the words ''steam generating boiler" in paragraph (c) thereof ~he words ''other than a steam-generating boiler not exceeding three horse-power us0d in connection with dairying.''.' ''

Under regulation 65 of the Public Safety Act of 1940 exemption was granted to female labour and I should like to see that extended right through the life of this Bill. The }'finister formerly advised me that only 44 females had taken advantage of that regula­tion to take charge of a steam generator. That is no reason why this amendment should not be accepted.

There is no reason why it should not be accepted, for two reasons. First of all, during the war period, owing to the laek of man·r>ower, rver so many milldnsr plants were installed and under our Dairy Produce Act, as the Secretary for Agriculture and Stock knows, every dairy farmer who has a milking plant is bound to have a sterilising plant. During the war period hundreds of dairy milking plants were installed by dll:iry farm­ers but no steam-generating plants because these. were unprocurable and I understand there is an instruction by the Department of Agriculture and Stock to their inspectors 11ot to enforce the section of the Act thnt m a de it compulsory for these sterilisers to be used.

One can imagine what will happen now. There are ever so many more, perhaps thousands of milking machines, in Queens· land and very few of them, comparatively speaking, have sterilisers. But in a short time, as soon as material and man-power a;e available, the dairymen who own them will be forced to instali sterilisers. We all know 111:1t "Mflll-T)(nV:r i~ POt flV:1i1::1--lP.. i'S:'0Ci~11v at milking time, on the farm and the· women will bE> debarred from attending to these sterilising plants.

Why should this be sof This war ~as proved beyond an question that as mechames w.nn"~"ll nrP ,~;yi-,·;_'ll]v tbn C?(ll1fd of mPT1. Thflt has been proved in every corner of the world, in the air, on the land and under the sea, and for the life of me I cannot see why they Rhould be denied the right to operate these 3-horsepower machines, which will geneTate little more heat than a bath-heater. The work these women carried ,on in the absence of their menfolk was a breach of the Act but I do not see why they should be penalis2d.

Inspection of Machinery Acts [11 AP:RIL.] Amendment Bill. 2367

'rhey will be penalised in two ways. They will be penalised in second -grade cream or milk through not having a sterilising plant, and I am sure the Minister has no desire to inflict any hardship upon those people, who are perhaps the most worthy and deserving section in the community. I cannot think of any valid reason why this amendment should not be accepted.

Mr. :MULLER (Fassifern) (5.34 p.m.) : I should like to draw the Minister's atten­tion to section 14. of the Act, which sets out that no female shall have control of any engine. The new definition of "engine" includes a machine for the development and utilisation of power or electricity. This definition would: include such things as sew­ing machines operated by electric motors. If a woman has charge of a small motor driven by electricity' she will be committing a breach of the Act. We. know that quite often women are compelled to take charge of milking machines. The labour position is acute today and if the man who usually attends the milking -plant is absent, under this provision the wife or daughter of the owner would be committing a breach of the Act if she ran the plant. I t1o think that a slight amendment in this direction is desirable.

Hon. V. C. GA.m (South Brisbane­Secretary for Labour and Employment and Mines) (5.36 p.m.): As the hon. member for Stanley has stated, in response to a request by him we made provision under Regulation 65 of the Public Safety Act of 1940, on 18 Febru­ary, 1943, for a female to take charge and control of a steam-generating boiler not exceeding 3 h.p. and which is used in dairy­ing. We felt the need for that because of the call-up of men from the dairying industry. We felt that because of the absence of the young men during the war years there was a real necessity for some favourable and sympathetic consideration in this direction and we hastened to give effect to the request of the hon. member for Stanley. But not­withstanding the fact that male labour was at a. premium, we had only four requests from females to take advantage of this pro­vi~ion under the Public sa·fety Act. I argue that during the war period, when all the available young men of the community engaged in dairying pursuits were in the fighting serviees of the Commonwealth, the faet that only four females took advantag~ of the provision shows that no necessity exists for the amendment now that the war is over and man-power will be available.

Mr. :Macdonald: But no sterilisers are <nail~ hle.

Mr. GAIR: Then where is the need for the amendment~ If there is an increase in the number of sterilisers in the future we can consider the matter raised by the hon. member. I point out also that that regula­tion under the Public Safety Act is still in fu~~ .

1946-4L

Mr. Macdonald: It could be cancelled tomorrow.

Mr. GAIR: That is true, but it is still in force and as it was availcd of by only four fe~ales during the war years there is every reason for its cancellation or immedi­ate repeal. I use the same argument against the amendment. If I felt that there was any real necessity for this amendment no-one would be happier tha·n I should be to accept it.

Let us analyse what is entailed in extend­ing this to females. It is all right .in the case of the farmer's wife or daughter who may attend these machines or sterilisers, but it must be remembered that if we are going to extend our industrial law to females it might have a tendency to displace male labour.

It may be that females are doing jobs that should really be the jobs of men, but it is true, as the hon. nrember for Stanley has said, that the women in this country acquitted themselves with great distinction, great honour and great merit during tile war years, in the fighting forces, in the Land Army, and in other phases of war service. They did a magnificent job, and we take off our hats to them, but the fact remains that there was a war on and we were required to use our womenfolk in many ways that in normal or peace times we should hesitate to do. The care, maintenance and periodical cleaning of steam boilers is not a job for women. It is an arduous job, unsuitable for female labour.

Mr. Muller: What do you do when you cannot get men to do the workf

Mr. GAm: I have already said that during the war years when man-power was at a premium we went to the trouble to put through a special regulation under the Public Safety Act and that only four women took advantage of it. Is it not likely that there is less need for that provision today, than, say, six or twelve months ago~ There is no argument in support of the amendment under existing conditions. The regulation under the Public Safety Act will continue to operate until we are satisfied that sufficient man­power is available to meet the requirements of the dairy farmers for whose very benefit the regulation was passed.

We had an unfortunate accident recently at Reedy Creek, Kumbia, where a woman 33 years of age was killed as the result of being caught up in a 1 inch-wide driving belt. The belt was used to drive a milk separator off a 3~ h.p. crude-oil engine. That poor woman was separating the milk. She had completed her job and the belt had been removed from the separator pulley. The engine was still running with the belt resting between the pulley and the flywheel of the engine. Her foot became entangled in the pulley, she was spun round on the end of the engine shaft and smashed to the concrete floor. Had the engine been stopped or the pulley removed the accident could have been avoided. The same

2368 Inspection of Machinery Acts [ASSEMBLY.] Amendment Bill.

thing could have happened to a male person, but a male would be more accustomed to doing the job and probably would have turned off the engine, which would have meant that the accident would have been avoided. I do not want a repetition of that. We do not want the wives of our people engaged in the dairying industry killed by being caught up in belts. I hesitate to be responsible for an amendment, or a permanent amendment anyway, until it can be proved to me that it is necessary. I think we are gradually getting back to a normal period when there will be sufficient male labour to do these jobs and thus no need to employ females.

Mr. MACDONALD (Stanley) (5.43 p.m.): The argument by the Minister leaves us stone-cold. He showed a mournful lack of knowledge. He said that only four women had applied for the exemption provided under the Public Safety Act and implied that only four women were operating these plants. That is utterly wrong. Hundreds of these women are operating such plants.

Mr. Gair: Committing a breach of the law~

Mr. MACDONALD: Yes; only four are doing it legally. At all times, women are called upon to help on dairy farms. A man may take advantage of rain, go down the paddock to do some work, while the women put the cows through. It is not a case of sweating labour. Only four persons made application for exemption where they were unable to get sterilisers, but there are hundreds of milking plants in the State that have no sterilisers, because they are not avail­able. In a short time, when the Department of Agriculture and Stock gets busy, these plants will have to have sterilisers, and rightly so.

We who are in the dairying industry are very concerned in view of the fact that you, Mr. Devries, might produce a first-class article and I on the other a second- or third­class article. You consequently suffer. All these people use milking plants. There is no greater source of contamination of milk products than milking plants. It is essen­tial that they should be sterilised. These sterilisers will come in and women will be working them. It is not a case of introducing women labour into the industry. They are there for all time. It is a family matter. The incident at Reedy Creek is only one of many. In fact it would happen to anyone attending machinery. I remember an accident to a girl who was scalped and killed while attending to a separator. That is a risk that is always present in moving machinery.

The Minister cannot justify his refusal of the amendment by stating that only four applications were received. He said that had there been necessity for more they would apply. They did not apply. The mere faet is that in future hundreds of sterilising plants will exist for every one existing today. Women will work them. You will have to turn your dairy inspectors, whose duty it

is to advise the farmers, into policemen to police this measure. I regret that the Minister cannot accept the amendment. I say it is a necessary one, speaking from the viewpoint of one who is interested in the industry.

Hon. V. C. GAIR (South Brisbane--Secre­tary for Labour and Employment and Mines) (4.47 p.m.): The hon. member knows that there is no necessity for the amendment while the Public Safety Act is on tne statute-book. If those sterilisers are going to become an established fact in all dairies and it can be proven that there is need for an amendment of the Act the matter can then receive con­sideration. I repeat that the people whom we aimed to help by introducing the Public Safety Act regulation did not take advan­tage of it, as only four females made appli­cations for permits under it. The hon. member informs me that that is no argument. He says that they will do it without a permit. If that is so and they are infringing the Act probably we shall have to give considera­tion to taking suitable action to compel these people to takE> advantage of the regulation we put there for their benefit, initiated by the hon. member for Stanley. If they do not comply with our law and we go out of the way to meet an emergency and they still do not take advantage of it, then we shall have to implement the law. That is all there is about it. As the hon. member well knows, before rejecting this amendment I would confer with the Chief Inspector of Machinery, Mr. A. G. Barker. He is a man with very wide experience. Speaking from his experience, he says-

'' In the experience of this department and my own life's experience, the employ­ment of females in charge of steam­generating boilers is practically an unknown quantity, and to now have females so employed would be something in the nature of an experiment, but without the neces­sary experience and data so essential in any experiment.

''A ~-horsepower boiler working at 10 lb. per square inch on an average dairy farm, through lack of knowledge, oversight or negligence, can explode, with most disastrous results to life and property.''

This officer's experience cannot be questioned, neither can his qualifications. I must be guided to a great extent· by that knowledge and experience and, being so guided, I regret that I cannot accept the amendment.

Amendment (Mr. Macdonald) negatived.

Clause 3, as amended, agreed to.

Clauses 4 and 5, as read, agreed to.

Bill reported with amendments.

THIRD READING.

Bill, on motion of Mr. Gair, read a third time.

The House adjourned at 5.53 p.m.