25th Parliament · 1st Session
Mr. SPEAKER (Hon. Sir John McLeay) took the chair at 9.30 a.m., and read prayers.
– My question, which is addressed to the Minister for National Development, concerns beef road construction in Queensland. I preface the question by referring to a statement which was made in an Australian Broadcasting Commission radio news session on 18th November and which was credited to a Mr. Young, Deputy Commissioner of the Department of Main Roads in Queensland. It said that work on the Winton-Boulia beef road was finishing because of lack of finance and that it would take two years to get a contractor back on to the job. I ask: Is it a fact that as stated by the Deputy Commissioner, work is ceasing on the construction of Queensland beef roads because of the failure of this Government to make the necessary finance available? Will it be possible for accurate and definite advice on future expenditure on these roads to be given so that contractors and workers on the projects can plan their activities well ahead?
– Order! I think that the honorable member is making a speech.
– One contractor who will have to cease work because of these financial restrictions will be forced to sack 200 men.
– As the honorable member knows, an amount of about £2 million is being spent this year on beef roads in Queensland and a further amount - about £300,000 - will be carried into next year. The Commonwealth Government said in the last Budget that it intends that the beef roads programme shall be a continuing programme. It is being looked at by departments as a matter of urgency. I certainly intend that the programme of developing beef roads in the north shall be a continuing and a planned programme.
– I address a question to the Minister for Labour and National Service. Will the Minister say when the next registration for national service will take place and whether any changes will be made in the age at which men will have to register? In view of the approaching Christmas holidays and the likelihood of many national service registrants going on holidays, must registrants notify their temporary address or run the risk of being prosecuted?
– As yet the exact date of the next call-up for national service has not been determined. But I think it can be taken as fairly precise that the date for registration will be during the last week or second last week of January. As soon as I have the actual date I shall announce it in the House or, if the House is not sitting, independently. As to the second question, those who will have to register will be the young men whose 20th birthday will occur in the first six months of next year, lt is not necessary for them to notify the Commonwealth Employment Service of temporary changes of address, particularly if they are going away on holidays. AH that is necessary is that the permanent address be notified. Under the regulations, young men who go away on holidays are under an obligation to ensure that letters with a national service notification can be posted directly to them.
– I ask the Minister for the Army a question. Does he know that private sub-dividers of land in Townsville are required to meet the cost of internal water and sewerage mains? Does he think that the Army should do the same? Does he think that the Townsville City Council should accept the loan of £30,000 offered by the Commonwealth Department of Works for the supply of internal water and sewerage mains on land to be used for Army homes, a loan which would have to be repaid by the people of that city?
– It is normal practice, wherever the Commonwealth constructs houses or other buildings anywhere in Australia, to expect the local authorities, where they usually provide such services as sewerage and water, to provide those services for Commonwealth properties. However, in view of objections by the Townsville Council, in this case it has been decided to provide these services at Commonwealth expense - that is, to depart from the normal practice. I should say to the honorable gentleman that in these circumstances what happens in relation to the ex gratia part payment of rates which the Commonwealth normally makes will be a matter for discussion and negotiation with the Council.
– 1 address a question to the Treasurer. There have been reports which indicate that substantial unemployment is likely to occur in the next six months, and these reports, to a degree, are supported by the lower rate of home construction and the fall in motor vehicle registrations. Does the Government concur in the views expressed? If so, is it preparing to counter these trends and to stimulate, in particular, the building construction and motor vehicle manufacturing industries?
– I have been telling the House over recent weeks that the Government is maintaining a close watch on the movements which are occurring in the economy generally. For this purpose we have been in contact periodically with the Reserve Bank of Australia and other sources from which useful information can be derived. There was a meeting yesterday of the Board of the Reserve Bank at which the Secretary of the Treasury was present. He would have been able to convey the general views of the Government on the present situation. I would expect some decisions of that meeting to be announced shortly. I think it will be seen that the Government, through various instrumentalities, is adhering to the policy of keeping the economy moving steadily forward and of attempting to deal, to the extent that that lies within its capacity, with any soft spots which emerge. The honorable gentleman made particular reference to the construction industry. Here we have the rather unusual situation of some decline in the rate of domestic dwelling construction and a quite remarkable leap in the approvals for nondwelling construction. Pressure on the construction industry remains high, although inside the industry there has been some reduction in the level of home dwelling construction. This aspect in particular has been closely studied by the Treasury and the Reserve Bank. It is an aspect on which I expect to make some announcement shortly.
– I address a question to the Prime Minister in his capacity as Acting Minister for External Affairs. Has the right honorable gentleman noted that proposals to negotiate about the war in Vietnam were made to the Government of the United States of America in 1964 and 1965 but that apparently the Australian Government was not informed of them? In view of the importance of negotiations as a means of bringing to an end the serious and increasing loss of life in Vietnam, will he say whether his Government has mule any request to be notified of future proposals that are made to the United States Government for negotiations on Vietnam so that if there is any hope of their being successful his Government may be able to give them support?
– The honorable gentleman may take it that, in future, any proposals of any kind coming to the United States will be made known to us.
– I address a question to the Minister for Labour and National Service relating to applications to a court for deferment of training under the provisions of the National Service Act. Where an application for deferment is based on the mental or physical health of a dependant, or financial problems of a nature which should not be publicly disclosed, do facilities exist for this type of evidence to be submitted in camera? If such facilities do exist, will the Minister take steps to ensure that all young people balloted for service are made fully aware of this position?
– Facilities do exist for young people who have been called up for national service training, and who wish to have their call-up deferred because of exceptional hardship, to present evidence before a magistrate. If the information on which they base their applications for deferment is of a sensitive or delicate kind such as that mentioned by the honorable gentleman, then it is within the power of the magistrate himself to hold the proceedings in camera. Magistrates may act without regard to legal forms and solemnities and inform themselves in such matters as they think fit. If the information is of a very sensitive kind, I hope that magistrates themselves would adopt this course. It is within their entire and exclusive discretion to decide whether proceedings will be held in camera. Nonetheless, if it is brought to the attention of the Commonwealth officials who are presenting the facts to the magistrate that the applicant himself wants the information considered in camera and we are able to help, all the applicant has to do is let us know the facts and we will help to the limit of our capacity to have the request put to the magistrate.
– I ask the Minister for the Interior: Has the Government given further thought to the possibility of finding means to enable the electors of the Australian Capital Territory to participate in referenda to amend the Commonwealth Constitution? Would the Minister agree that the wise fathers of federation probably did not envisage that section 128 of the Constitution would ultimately deny to a population numbering hundreds of thousands the right to vote on proposals to alter the Constitution? While electors in the Australian Capital Territory could not be included in State totals, could the Minister say whether there is merit in the suggestion that has been made that electors in the Australian Capital Territory, being equally Australians with all others, could be included in the total vote which also must approve a proposed alteration?
– I have received a similar request to this from the Australian Capital Territory Advisory Council to which I have replied saying that this problem is more involved and more complex than it might appear on the surface and that it will take some time before I can give a complete answer. One of the complexities is a legal one, that is, that at the time of Federation the States referred certain rights to the Federal Government. The whole purpose of this was to see that the rights of the States were protected and not diminished in any way. The question is whether giving a right to a Territory to have a vote on constitutional matters would be diminishing some of the rights of the original States.
– My question, which is directed to the Treasurer, relates to the Defence Forces Retirement Benefits Fund. Until the quinquennial review of that Fund up to 30th June 1964 is completed, members of the Fund will not know whether there is any surplus available for distribution. Will the right honorable gentleman inform the House what progress, if any, has been made with this review?
– The first stage of the quinquennial investigation, namely, the actuarial examination of the experience of contributors and pensioners based on statistics provided by the Defence Forces Retirement Benefits Board, has been proceeding for some time. This examination is an essential basis for the actuarial valuation of the Fund to determine whether or not the Fund is in surplus. While the Commonwealth Actuary is making this examination, the Defence Forces Retirement Benefits Board is producing the valuation data for the next stage in the actuarial investigation, and this work is nearing completion. However, as I have mentioned in the House on other occasions in relation to the Commonwealth Superannuation Fund surplus, there is a very serious shortage of actuarial personnel at the present time, and I cannot give any assurance that this investigation will be completed for some months yet. But the importance of completing it is well recognised and I assure the honorable member that, for my part, I shall be doing what I can do to see that the investigation is expedited.
– I preface my question, which I direct to the Prime Minister, by stating that last week I asked the right honorable gentleman whether he was aware of the curtailment of building of classrooms in State schools in New South Wales, because of lack of funds, which will greatly affect secondary education. Has the Prime Minister made any inquiries into this serious matter and does his Government intend to assist financially so that the education of children in that State will not be affected?
– We have a long established practice of dealing with State Governments on matters in which they say they need some financial assistance. This is a matter on which, if any request is to be put, it will be put by the Government of New South Wales and will then, of course, be considered.
– Will the Minister for Labour and National Service make available at regular intervals the figures relating to rejections, in the national service call-up, on medical and other grounds?
– Some weeks ago I made a statement in the House relating to rejections of national servicemen, or potential national servicemen, on medical grounds. I do not think I covered in that statement the case of national servicemen or potential national servicemen who might be rejected for other reasons. What I did disclose to the House was that the number of rejections on medical grounds was not large. Nonetheless, if the honorable gentleman feels that it is desirable, I shall make certain that my Department does have this information brought up to date, and as and when we think it necessary or desirable to make the information available we shall do so. I shall have a look into the matter of rejection on other grounds and if I feel that a useful statement can be made I shall attempt to make it in the House.
– I direct a question to the Minister representing the Minister for Civil Aviation. The Minister for Civil Aviation in another place announced that the Government would spend £100 million on a ten years programme to improve certain Australian airports. Is the Minister aware that Newcastle, the sixth largest district in New South Wales, has no commercial airport and is dependent on a most unsatisfactory and restrictive arrangement with the Royal Australian Air Force at Williamtown, which permits only one flight in and out each day? In the light of these facts will the Minister make available from this huge allocation for airport improvements 1 per cent., or £1 million, so that a commercial airport may be built on the site selected by the Depart ment of Civil Aviation at Hexham, which is centrally located to all cities in the Newcastle district? Why should the Newcastle City Council be required to meet the cost of constructing a commercial airport when the Department of Civil Aviation is financially responsible for the construction of airports in every capital city-
– Order! The honorable member is now making comment.
– I will conclude my question by pointing out that the Department is financially responsible for constructing airports in every capital city and in numerous other cities of less importance than Newcastle and with smaller populations.
– I am unaware of how the £100 million that is being applied over the next 10 years will be split up. The honorable member has asked a long scries of questions. If he places them on the notice paper I will see that he gets a correct reply.
– I address a question to the Minister for Trade and Industry. Has his attention been drawn to a further statement by Mr. E. J. Donath criticising the wheat industry? Is there any merit in that statement? If not, will the Minister say what action the Government can take to stop these damaging and scurrilous statements which are full of inaccuracies and which reflect-
– Order! I point out to the House that a question making a charge against an individual who is named is out of order.
– May I speak to the subject matter of the question, Mr. Speaker?
– Order! I suggest to the Minister for Trade and Industry that the question should be put on the notice paper.
– I wish to ask the Treasurer a question. By way of brief explanation I point out that it has been reported that the Minister for External Affairs announced at the Economic Commission for Asia and the Far East Conference in Manila that Australia will contribute 85 million dollars to an Asian development bank. I ask: Can the Treasurer confirm this report? Will he indicate to the House how this money will be raised and can he explain the structure of the proposed bank?
– It is a fact that our colleague, the Minister for External Affairs, has indicated, on behalf of the Government, our willingness to participate in the formation of an Asian development bank and to subscribe a total of 85 million dollars to the initial capital of the bank which has been set at an estimated 1,000 million dollars. The Government welcomes the proposed formation of an institution which we think can be a most valuable contributor to economic development and peaceful progress in this area of the world. Australia’s contribution is a very large one. It compares with contributions of 200 million dollars each from the United States of America and from Japan; but it does not present as formidable a budgeting problem as the total might suggest, because not all of it is callable in the early years and not all of it is payable, even to the extent that it is callable, in foreign exchange. Over five years half will be payable and, of this half, one half will be payable in foreign exchange - that is about £1.9 million a year for each of those five years. The remaining £1.9 million will be supplied in Australian currency. So the honorable gentleman will gather from these figures that, although not insubstantial, the contribution will not, having regard to the valuable purposes of the Bank, make too heavy a drain on our overseas exchange.
– I address a question to the Minister for Shipping and Transport. What control do Australian port authorities have over ships carrying overseas registration, in relation to the safety of passengers and cargo and the seaworthiness of the vessels? Are regular inspections made of all ships using Australian ports to ensure that life jackets, life boats and other similar gear are in ample supply and in first class condition? If not, why not?
– As far as I know regular inspections are made of ships using Australian ports to ensure that they comply with the regulations under the International
Safety of Life at Sea Convention, which is at present in force in Australia, and with the provisions of the Navigation Act.
– I ask the Minister for Trade and Industry: How is the criticism of the wheat industry going?
– Order! I point out (o the House that Standing Order No. 153 states -
Questions shall not be asked which reflect on or are critical of the character or conduct of those persons whose conduct may only be challenged on a substantive motion, and notice must be given of questions critical of the character or conduct of other persons. 1 detect in the honorable member’s question something a little cunning. It is out of order.
– I wish to ask the Prime Minister a question. Can the right honorable gentleman provide the House with any further information arising out of the Cabinet’s decision to appoint a committee to investigate again the advisability of removing sub-sections (I.) and (2.) of section 49 of the Public Service Act, which is the bar to female officers retaining their permanency in the service after marriage? In the light of the Boyer report, can this matter be dealt with singularly and as a matter of urgency?
– This is a matter which is currently under consideration in the Cabinet. Although I cannot anticipate that we will arrive at any conclusion in the next few days, because the matter gives rise to a variety of considerations which have to be worked out - as the honorable member knows very well - I certainly do not anticipate any avoidable delay in arriving at a conclusion. I would think that early in the New Year we would be in a position to say where we were.
– My question is directed to the Acting Minister for Primary Industry. In view of the fact that in the 1962-63 season, when wheat for home consumption was reduced in price by 1 s. 5d. per bushel, the price of bread was reduced by one halfpenny per 2 lb. loaf, can the present suggested increase of 2d. per loaf in the price of bread be justified when the present increase in the price of wheat represents only one-fifth of a cent per 2 lb. loaf?
– The price of the wheat component in a 2 lb. loaf of bread, with the new increase of 8d. per bushel in the home consumption price of wheat, would be increased by one farthing. An increase of 2d. in the price of a 2 lb. loaf of bread would be unfair and unjustified. Too often a slight increase in the prices paid to primary producers for the commodities they produce is used as a public whipping horse and an excuse to increase further the price of the article made from the commodity. Those further increases in the price of the manufactured article do not truly reflect the increase in price of the original commodity. Such additional increases in price may be for the benefit of the person using the commodity produced by the primary producer but usually they are due to increased labour costs.
– I ask the
Prime Minister a question. It was reported in the Australian Broadcasting Commission’s news service this morning that, so far, fewer wool growers than had been expected had registered their votes in the referendum. In view of the need to have as wide an opinion as possible on this matter, whether the vote be for or against the plan, will the right honorable gentleman consider having advertisements inserted in all daily newspapers reminding wool growers that they have only until 9th December - only a few days - in which to register their votes? Will he urge wool growers to register their votes as soon as possible?
– I was under the impression that the papers that went out to each wool grower enrolled contained all this information.
– That is correct.
– Yes. I was also under the impression that the wool growers were advised that their votes must be returned on or before 9th December. I would hope that that was clear. However, since the matter has been raised in the House
I repeat, for the benefit of all concerned, that the day is 9th December - and voting is compulsory.
– I ask the Prime Minister a question about the inquiry into transport costs in the north. As it is more than 12 months since the committee inquiring into this matter took evidence in the north, when may we expect a report to be considered by the Government and made available to the Parliament?
– The report has been received. It is being examined by the Department of National Development. This is the normal practice in such cases. I do not yet know when the Minister for National Development expects the report to be ready for Cabinet consideration. I have no doubt that it will be a fairly early date.
– I ask the Minister for National Development a question. I refer to the Press disclosure of the contents of the latest submission by the Western Australian Government on the Ord River Scheme. Was this information released in Canberra by the Department of National Development? Now that the contents of the submission have been made public, is the Minister free to report more fully to the House on the development of farms to date, the splendid cotton season results just achieved and the more convincing case for financial assistance now being considered by the Government?
– I am not aware of what appeared in the Press but certainly nothing was released by my Department. Therefore the matter is still confidential with my Department.
– Is the PostmasterGeneral aware of the ever increasing number of Australians who are going abroad because of lack of job opportunities in Australia, people interested in various spheres of television being included in that number? Could this problem be overcome by the Government introducing a quota system for Australian television productions? Is it correct that most other countries follow this course in order to protect the culture and traditions of their people? Will the PostmasterGeneral indicate whether the Government intends to introduce such a quota system and, if it does, when?
– I do not know whether it is the Government’s intention to introduce a quota system.
– My question is addressed to the Minister for Labour and National Service. Is the report correct that there is an application to the Commonwealth Conciliation and Arbitration Commission for a change in wages and margins next year? Can the Minister say on what grounds the requests are made? As export prices for primary products have remained static or even fallen over the years, will the Minister see that the primary industries are effectively represented at the hearing?
– The Australian Council of Trade Unions has lodged two claims with the principal Registrar of the Commonwealth Conciliation and Arbitration Commission. The first claim relates to an increase in margins to bring the margin for a fitter to £8 8s. a week, with corresponding increases in the other skilled trades. This represents an increase of some £2 16s. in the margin for a fitter. The grounds of the application that the honorable gentleman mentioned are the increases in the gross national product and the -
– Is this matter before any court?
– No. An application has been lodged.
– Is it in the possession of a court?
– it is.
– The question is out of order. The matter is sub judice. It is in the possession of a court.
– I ask the Prime Minister a question. Has he been advised that the Minister for Education in New South Wales said yesterday that no material should be sent by the Prime Minister’s Department into the State schools in New South Wales without the permission of the Minister for Education in New South Wales and that no request was made by the Prime Minister to the Minister to circulate the pamphlet on Vietnam to which reference was made yesterday? Will the Prime Minister now consult with all the Ministers for Education and get their approval to circulate another pamphlet on Vietnam in which the Government’s side and the Opposition’s side will be stated so that children will have a complete story on the matter? I ask this particularly as some headmasters have refused to circulate the Prime Minister’s pamphlet because it is one-sided.
– I have not seen the observations mentioned by the honorable gentleman. The honorable gentleman is himself under a misapprehension. We are not circulating the pamphlet to a lot of school children. Heaven forbid. We are distributing it, and sending more copies on application, to a great variety of people. We are sending it to leaders in churches, in business, in universities and in schools. The headmaster of a school gets it; the children do not. It is for the headmaster’s information, so that he may know something about the situation.
– How many copies?
– If he wants more copies, he asks for them.
– How many does he get?
– If he wants more copies than those sent to him, he asks for them. I am sure that honorable gentlemen opposite will be fascinated to know that over the last two or three days the Department has received requests from school headmasters and church leaders for an additional 2,000 copies of the pamphlet. The honorable member for Newcastle will be delighted to know that we have even received a request for additional copies from Newcastle Committee for International Cooperation and Disarmament.
– I address a question to the Minister for Trade and Industry. Is it a fact that Australia is selling wheat to
China only after having supplied all the requirements of its traditional customers? Is it also a fact that the price is guaranteed for only the first 150 million bushels of the Australian wheat harvest, which is all sold to our traditional customers, so that any other sales to overseas countries are not of wheat for which the grower receives a guaranteed price?
– The Australian Wheat Board has always made its first overseas sales from any year’s harvest to its longterm, traditional customers. These customers are not the Communist countries. The order of sales to traditional customers in recent years has been, I am informed, about 130 million bushels annually. To suggest, as has been suggested, that the Australian taxpayer subsidises cheap wheat to Communist countries is quite wrong, lt is to imply that without the subsidy - if that is the appropriate word to use for the arrangement under which the wheat industry stabilisation scheme operates - we would charge China a higher price. This, of course, is nonsense. Wheat is traded internationally by many countries, and, subject to variations in sizes of parcels, whether it is bagged or bulk, the terms of sale and the quality of the wheat, the price is the same all over the world. If there were no wheat industry stabilisation plan we could not get a penny more for any wheat sold to China than the current market price at the time of the sale. To suggest that Australia’s taxpayers are enabling Communists to buy wheat from Australia at a cheaper price than that at which they would be able to buy it if there were no stabilisation plan is utter nonsense, and the man who makes the statement, although a lecturer, is talking nonsense.
– Has the Treasurer’s attention been directed to a list, published in the “ Sydney Morning Herald “ of 30th November 1965, of debenture investments by major life assurance organisations in H. G. Palmer (Consolidated) Ltd., both before and after its financial linking with M.L.C. Ltd.? Will the Treasurer obtain through the Commonwealth Insurance Commissioner and make available to this House a full list of such investments in H. G. Palmer (Consolidated) Ltd. by all life assurance offices under his control? Will the Treasurer examine this list to determine whether any guide lines can be provided, by legislation or otherwise, to prevent the future hazarding of policy holders’ funds held in a semi-fiduciary capacity?
– I have not studied the table that the honorable member says was published in the “Sydney Morning Herald “. I shall, however, examine carefully the text of his question and see whether in the course of the next week I can give him a comprehensive answer.
– My question is directed to the Minister for National Development. As the Minister has said that restrictions have had to be placed on the amount of water flowing down the Murray River because of the low level of water in the Hume Weir, and that the River Murray Commission preferred the provision of additional water storages to the building of weirs and locks, I ask: What prospect is there of filling additional storages in a dry year? Will the Minister recommend that the Commonwealth Government co-operate, both objectively and financially, with the States concerned in investigating means of overcoming the great loss of water between the storages and the areas of consumption?
– Whether the extra storages that are being built will be filled in a dry year is, of course, in the lap of the gods. As the honorable member realises, there is a very big difference between the rates of flow in the Murray River in a dry year and in a wet year. The lowest recorded flow into the Hume Weir in one year was 800,000 acre feet, whereas I believe in 1956 the Hume Weir would have been filled ten times over. However, as the honorable member realises, in about April or May of next year the waters from the Snowy River will be diverted into the Murray for the first time, When the Snowy Mountains scheme is completed, or at least towards the end of this decade, approximately 2 million acre feet per annum will be diverted inland into the Murray and the Murrumbidgee.
I realise that there are heavy losses from the moment when the water is taken out of the Murray and until it is put onto the land for irrigation purposes. The River Murray
Commission is concerned about the use of the water only while it is in the River Murray. It is for the States to decide how they shall reticulate the water. With the honorable member, I have seen pipes used. I know that the use of this means conserves water very considerably. However, we have had no application for Commonwealth assistance beyond our responsibility in relation to the River Murray Commission, which, as I said, is concerned with the water only while it is in the Murray.
– I move -
That the Bill be now read a second time.
This is largely a technical measure which deals with a few relatively small matters. It proposes several amendments to the Act under which the Australian National University operates. Some of these amendments meet the desire of the University Council, agreed to by the Government, to abolish the office of Principal of the School of General Studies when Professor Herbert Burton retires at the end of this year. Professor Burton has, of course, rendered long and meritorious service both as Principal of the School and before that as Principal of the former Canberra University College. The other amendments, largely of a technical character, have also been proposed by the Council and accepted by the Government.
The University Council, when seeking to have the position of Principal of the School of General Studies abolished, felt it desirable to have in its stead a part-time position of Deputy Chairman of the Board of the School. The Government agreed. This position will not be occupied for a long period by any one person. Over the years its responsibilities will be shared by several. The new arrangement will give the School the same relationship to the Vice-Chancellor and the Council as the Institute of Advanced Studies now has through the existing office of Deputy Chairman of the Board of the Institute. We have deemed it desirable to recognize the status of the School of General Studies within the University by requiring the position of Deputy Chairman of its
Board to be chosen from among the professors of the School.
As the office of Principal of the School is a statutory one, it is therefore now necessary to delete from the Act all references to it and to insert, where necessary, references to the new office of Deputy Chairman of the Board of the School. This operation accounts for many of the clauses in this Bill. Associated with this change is provision to relieve the Vice-Chancellor of his present obligation to preside at meetings of the Boards of the Institute and the School when he is present. It is intended that the Deputy Chairman of each Board should be empowered to preside at a meeting of that Board at which the Vice-Chancellor is present, if called upon by the Vice-Chancellor to do so.
A further amendment deals with provision for securing representation of the University’s undergraduates on the Council. At present the undergraduates elect a member, but the person elected is required to be a student of the University being aged at least 21 years and a graduate “ of at least two years standing”. Time has shown that very few such eligible candidates are available. In cases where they are available they tend to be out of touch with current undergraduate opinion. It has therefore been decided to remove the requirement that candidates have two years standing as a graduate, with a consequent increase in the field of eligible candidates for election to the Council as the students’ representative.
The opportunity has also been taken to insert a provision which will permit the University to enter into certain types of contracts without being obliged to use its common seal. This obligation has proved cumbersome in the University’s more routine day to day business operations. The terms of this Bill would permit the University to dispense with the use of its common seal when entering into contracts which, if entered into by private persons, would not be required to be under seal. A similar provision applies to certain other statutory bodies, for example the Australian National Airlines Commission.
A further provision is that which empowers the University to waive fees in the case of State forestry scholarship holders. When the University undertook to establish a Department of Forestry, and to take over the work of the Australian Forestry School, which it did from the beginning of the 1965 academic year, it was faced with doubts concerning its power to remit the tuition fees of forestry students undertaking training on the nomination of various State Governments. By long standing CommonwealthState agreement, no tuition fees have been paid by the States in respect of their nominated students at the Australian Forestry School. This amendment would permit this arrangement to apply without doubt in the new circumstances. It is Government policy for it to do so.
In connection with the transfer of the responsibility for advanced forestry education from the Australian Forestry School to the Australian National University, legislative action is required to ensure that the provisions of the Officers’ Rights Declaration Act, 1928-1959, apply to permanent Commonwealth public servants who were on the staff of the Australian Forestry School and have now accepted appointment with the Australian National University. Provision has accordingly been made in this Bill for the purpose, as a result of which those officers transferred will have to opt within a period of three months for employment under either Australian National University or Commonwealth service conditions.
Finally, the opportunity is being taken in presenting the Bill to the House to repeal certain sections of the Australian National University Act1960, the operation of which is now exhausted. The 1960 Act incorporated transitional provisions which were required as part of the process of merging the former Canberra University College with the original Australian National University. The sections for repeal are of a technical nature only. Mr. Speaker, I commend the Bill to the House.
Debate (on motion by Mr. Beazley) adjourned.
– I move -
That the Bill be now read a second time.
This is a Bill for an act to amend the Air Navigation (Charges) Act 1952-1964 for the purpose of securing an increase in the revenue from the various operators and owners of aircraft who make use of aerodromes and other facilities for air navigation provided, maintained and operated by the Commonwealth. It is the Government’s policy to move progressively towards the ultimate full recovery of that part of the cost of providing facilities that is properly attributable to the industry. Each year a careful review is made of the ability of the industry to absorb and increase in charges. Increases are not made automatically but, in the present case, the increase of 10% has been decided as fair and reasonable. For 1964-65 actual revenue from air navigation charges was £2.218 million. With the 10% increase now proposed and with higher revenues resulting from natural growth in the industry, it is extimated that total revenue for 1965-66 will be some £2.839 million.
This Bill does not change the method of assessing charges but simply increases by 10% the unit charges which are based on the weight of the aircraft. The new scale of charges will be applied to all domestic and international airlines and to charter, aerial work and private operators. Operators of light aircraft will pay in total an increase of less than £5,000. The Act previously referred to the weight of the aircraft as that specified in its certificate of airworthiness. With the change in the form of the certificate of airworthiness, the weight does not always appear in this document and thus this source is no longer appropriate. This Bill now provides that the Director-General of Civil Aviation may, by notice in the Commonwealth Gazette, fix the weight of aircraft and the charges will be based on the weights so fixed. Where there are limitations on the weight at which an aircraft may operate from particular aerodromes, the Director-General may prescribe a weight for the aircraft at that place which will take into account the limitations of its operating weight. This Bill includes some amendments of the machinery provisions designed to specify more clearly the obligation of certain aircraft operators to pay the respective charges. I commend the Bill.
Debate (on motion by Mr. Beazley) adjourned.
– I move -
That, having in mind proposals for the erection of a new and permanent Parliament House (in this resolution referred to as “ the Parliament building”) and in that connection the need to examine the efficiency or otherwise of working arrangements in the present Parliament House and any changes in those arrangements that may seem to be desirable, a Joint Select Committee be appointed to inquire into and report on-
Parliament building; and
library facilities, and catering and other facilities and services in the Parliament building for members of the Parliament and others;
communication services; and
That the committee consist of -
the President of the Senate, who shall be
four senators, two of whom shall be appointed by the Leader of the Government in the Senate and two by the Leader of the Opposition in the Senate.
This is the first step in the direction of establishing a new and permanent Parliament House in the capital of the nation. This obviously will be a requirement of the future. We propose to establish a committee so that the first steps in that direction may be taken, on an all party basis and a basis of representation of both Houses of the Parliament.
This building was designed as a temporary building. It has been added to; it has been cobbled in various ways; but we all know that it has many grave defects. One of them is that the accommodation for private members, whose work becomes increasingly heavy year by year, is most inadequate. It must be extremely difficult for members, sitting two or three or whatever the number may be in a room, to attend to their proper constituency work, or to make their preparations for affairs in the House. It is also unsatisfactory to have a state of affairs in which the Executive arm - the Ministers - is interwoven with other people and, indeed, immediately subject to the transit of newspaper representatives in the House. This is not very satisfactory. It gives rise to a lot of strange speculation. I do not need to labour the point. What is needed in a new building must be carefully considered by people who are competent to consider it.
– The Committee itself; certainly. It will be the master of its own proceedings and of its own arrangements of a secretarial or clerical kind. I would have thought that was clear. Anyhow, if it is not clear, I make it clear. That is the design of this matter.
I think it is hardly necessary to point out that the terms of the motion are not inviting the Committee to design a Parliament House. We do not profess to be experts in that field; but we do have knowledge superior to that of other people of the requirements in a House, the needs in a House, and in many ways, how the various aspects of parliamentary life should be disposed of in a geographical sense - where they are to be placed in a parliamentary building.
– And we know more about getting in.
– We know a great deal more about getting in, and getting out. I have not tried that one yet. Therefore, the operative portion of the motion is that the -
. Joint Select Committee be appointed to inquire into and report on -
Sir, this is really quite a problem, which is not solved in this building. I mean, people have to wander around Kings Hall and a lot of interviews have to occur out there. It is all rather odd. We really need in the Parliament House some definite areas which will be interview rooms. The motion continues -
That is orthodox -
It will not have escaped the notice of honorable members that this is a most curious building. Or it was. The designers of it appeared to believe that the Prime Minister ought to have some rooms in one corner and that the President of the Senate, the Speaker of the House of Representatives, and presumably the Leader of the Government in the Senate should have rooms in other corners, but that all other Ministers would be available in their Departments. Of course, this was ludicrous. If Ministers were established in departmental buildings they would never be able to attend a division in the House. The inevitable facts of political life made it essential as time went on that every Minister should have a room available in the House, reasonably close to the chamber. As a Minister must have a secretary and a stenographer, or whatever it may be, then he had to have two rooms and, sometimes, in the case of a very heavy portfolio, three rooms. The result was that all those rooms that might have been available for other purposes were taken up. This has led to a certain amount of tension in the past. I can very well remember that I had humbly to beg of one of your predecessors, Mr. Speaker, that I might be allowed to have two small rooms because I was going to appoint another Minister. This was not frightfully well received. As a matter of fact, the Executive part of the new Parliament House ought to be under the control of the Executive and not of the Presiding Officers. It ought to be physically contiguous to the House but certainly not under the control of the
Presiding Officers or of the Joint House Committee.
Similarly, there is the problem of the Press and how they are to be accommodated. I do not provide the answers to these matters at all. The Press themselves and certainly we ourselves all would agree that the present arrangements are most unsatisfactory. I do not need to go into details about them. They are very familiar to every member of the House. I come to communication services. We are living in a new age now - the television age. Heaven knows what other marvels may follow on the heels of television. No facilities are provided in this place for television interviews. I am not suggesting that we ought to make a provision that we be televised in the course of debate. I would fear the turnover each election would be much too great. But I do believe that there are many occasions when some party leader or some significant member of the Parliament has to be interviewed or wants to make a television statement. It would be vastly convenient to have facilities for these things in a new Parliament House. We are living in a modern world. We ought to keep up with it. On top of these matters we have provided in the motion that the Committee will inquire into and report on -
There is just one other matter I want to mention. This has been discussed between the Leader of the Opposition (Mr. Calwell) and myself. The question of the site of the new Parliament House has not been made one of the formal terms of reference. When I remind the House of earlier Government announcements on this point and of the subsequent planning of the National Capital Development Commission I am sure this will be understood. The Leader of the Opposition has made a useful suggestion to me. I would like to say that I accept it. That is that I should make it clear in my speech that any member or members of the Committee will, in the Committee’s report, be free to make such observations on the question of the site of the new Parliament House as he or they may desire.
– Mr. Speaker the motion needs no seconder, but I stale that it has the support of the Opposition. We would like to see the Committee appointed and the terms of reference made broad enough to enable the Committee to conduct its inquiries with comparative speed, so that it may even be possible for a report to be made to this Parliament before it expires at the end of next year, or whenever it expires, perhaps early in 1967. One never knows when the Parliament is to expire. There are quite a number of pundits around who say that this Parliament could last until May of 1967. That would be information for the Prime Minister (Sir Robert Menzies). I think the pundits will be proved wrong, as they generally are. But the Committee, once appointed, will go to its work, I am sure, with great interest. I am equally sure that the members appointed from this House and the other House from both sides will be people who will be greatly interested in providing plans for a new Parliament House whenever the time comes for the erection of one.
– I agree with the honorable gentleman that we should be able to expect a report by the end of the next calendar year. Why not?
– That is right. The Constitutional Review Committee had to sit for three years in order to complete its inquiry. There is no reason why this Committee should have to sit for so long.
– Mr. Speaker, I want to make one small request. That is that this Committee, or whoever is going to supervise it, should pay some attention to acoustics and not make the ghastly mistake that has been made in the new wing built on to the present building. Honorable members do not need to have a secret microphone built into the wall because they can hear the conversations and interviews their fellow members are conducting two rooms away. We are practically living in one big public dormitory up there where everybody can hear everybody else’s conversations.
Sir ROBERT MENZIES (KooyongPrime Minister). - by leave - Mr. Speaker, if I may say so, I heartily agree with what has been said by the honorable member for Chisholm (Sir Wilfrid Kent Hughes). I have a passionate interest in this acoustics problem though, in spite of my scientific friends, I do not think acoustics has become a quite exact science yet. The fact that this is a temporary building produces the most astonishing results. I am completely familiar with the voices of the “ Hansard “ writers dictating from their notes to typists below my room. I do not mean to say that I follow them with great interest, but I am familiar with this phenomenon now and then. Of course, if anybody makes some small repair in the building three or four rooms away from me one has to send out a message saying: “ Shut up that row or there will be trouble. I am in the middle of a conference.” I could not agree more with the honorable member for Chisholm. This is one of the most important matters for consideration.
– Mr. Speaker, in support of this motion may I. advert to a practical question concerned with the matter raised by the honorable member for Chisholm (Sir Wilfrid Kent Hughes). I have made some inquiries from the technical men in this regard. I find that in the original plans for the new wing baffles were provided for on the tops of the partitions that divide the rooms and that these baffles were subsequently removed from the plans for some reason obscure to me. This was against the technical advice given. I am told that the replacement of these baffles which were provided for in the original plan would overcome the very real difficulty to which the honorable member for Chisholm has drawn attention. I say this having made some personal inquiries, as I have said, into this particular small but vexatious matter.
I was very glad to hear that the question of the site of the new Parliament House was not to be excluded from the deliberations of this Committee although it was not formally included. The site has not yet been determined. It can be determined only by motion of this Parliament. I know that two alternative sites - perhaps more than two, but broadly two - have been suggested. One is down by the lake and the other is on Capital Hill or Camp Hill. Again I have made inquiries of the technical people concerned. I have been told by town planners and architects that the lakeside site was incorporated in their plans because it was thought that a monumental building was necessary to close the vista. But there is an equally competent body of opinion to the effect that the vista should be left unimpeded and that the lakeside area could be developed in consonance with existing plans. Therefore, I believe that the matter should be regarded as being open. From the little, I know, I feel that perhaps the lakeside site is the better site. But that is a very tentative opinion and I do not intend to press it.
– Does not the honorable member think that the lakeside site is too dangerous because there are so many people who believe that they have the ability to walk on the surface of the water?
– I do not want to throw that soft impeachment where it may land.
– Order! I point out to the honorable member that the purpose of the motion before the Chair is to appoint a select committee to look into this matter.
– I agree. 1 was making only a passing reference to that matter. There is one other matter which might be germane. That is the interim question. The Prime Minister (Sir Robert Menzies) has said very rightly - the Leader of the Opposition (Mr. Calwell) rightly has concurred in this view - that the Committee might conclude its deliberations fairly speedily. A few moments ago it was suggested across the table that the Committee might conclude its deliberations by the end of the next calendar year. But even if it does that, it will be not less than 10 years from now before members of the Parliament occupy their new quarters in the new Parliament House. Indeed, there may be good reasons for delaying the actual construction. I agree entirely that the plans should be prepared and ready for implementation. The time of their implementation undoubtedly will depend on the state of the economy from time to time, on whether there are more urgent building projects which should take precedence over this one and on whether there is, as there was in 1961 for example, some kind of economic slackness which could well be taken up by the acceleration of the construction of the new Parliament House.
Even on the most favourable hypothesis, it seems unlikely that it will be occupied within less than 10 years from now. I believe that the needs of members of the Parliament in the interim must receive more attention than they have received in the past. I have been a member of the Parliament for about 15 years. I remember that shortly after I came here I drew attention to the lack of accommodation for private members, to the kind of thing that the Prime Minister very rightly mentioned a few minutes ago and to the need for private members to have some kind-
– Order! The honorable member is now debating a matter other than the one before the Chair.
– All I want to do is to suggest that this Committee, in its deliberations, might pay some regard to the interim needs of private members and that, if the Committee does not do so, they might receive better consideration than they have in the past. As I have said, for 15 years we put up with much greater inconvenience than we have now. It took many years of agitation in this House and elsewhere to achieve-
– Order! The honorable member in engaging in a general debate on the problems of members, the matter of new wings, accommodation and so on, is out of order. The question before the Chair is whether a select committee should be appointed. If the honorable member confines his remarks to the subject matter before the Chair, he will be in order; but if he does not, I think he ought to sit down.
– Very good, Sir. I will conclude with this remark: I merely suggest that, now that a committee is to be appointed, it might be good concurrently to give some attention to the needs of members of the Parliament in the meantime.
.- I wish to make only one brief observation on this matter. Having regard to the assurance that the Prime Minister (Sir Robert Menzies) has given to the Leader of the Opposition (Mr. Calwell) that it will be in order for members of the Select Committee to make comments on the desirable site for the new Parliament House, I hope that it will be in order for members of the Committee to make com ments on the environment of the site. I believe that in the past there was a defect in the powers of the Parliament to arrange its own environment. The result is that what could have been a magnificent vista from the front door of this building is ruined by the King George V Memorial, which blots the whole vista. I have nothing against the idea of commemorating King George V; but the nature of the monument behind the statue of the King suggests to me that someone deliberately set out to find what could blot the vista. It was clearly intended that there be a vista. Had it been a simple statue of the King - if it was felt that he of all the monarchs of history deserved the most prominent place in Canberra - it would not have blotted the vista. But putting up the great piece of stone behind the statue of the King ruined the vista. I hope the committee will have the power to determine what ought to be on the site so that somebody, in his temporary enthusiasm, will not erect a monument with the ruinous effects that this monument has had on this building.
.- The Prime Minister (Sir Robert Menzies) and the Leader of the Opposition (Mr. Calwell) have expressed the hope that the report of the Committee will be available within 12 months. I concur in that, but I make this observation: I hope that the new Parliament House will stand for some centuries and serve a very great nation. Around the world today are to be found some very up to date experiments in this field. I refer to the Parliament House at Kuala Lumpur and other Parliament Houses, which have a great deal to offer. I suggest that members of the Select Committee should visit Parliament Houses such as the one that I have mentioned. Although such visits would cost a certain amount of money, I believe that it would be only a very small amount. The Committee could obtain not only architects’ views on the usefulness of that building but also the benefit of the experience of politicians by conferring with the people who use it. They could consider the modern facilities that are provided and the differences of architecture, so that we might have the benefit of the very best the world has to offer.
Mr. CLYDE CAMERON (Hindmarsh) 10 years to complete the new Parliament House. I believe that 10 years hence is much too far ahead to be accepted as a reasonable date for the completion of the building. I hope that we will not hear any more about such a target. That brings me to the second point that I want to make - that we may be able to hasten the completion of the building. I am well aware of all that has to be done - the planning, the design and the work that the architects have to put in. I know that people may have to go abroad to look at other Parliament Houses. But that will not take as long as has been suggested. I do not think the Committee ought to be told that it need not bother about presenting a report until the end of the next calendar year. That is too far ahead, too. If members are not prepared to do a better job than that, they ought to announce their inability to work at a faster rate before the members of the Committee are selected, so that we can appoint other members to the Committee and get the job done more quickly.
This is important because there is some validity in what the honorable member for Mackellar (Mr. Wentworth) said about the lack of accommodation here. But I think the honorable member’s suggestion that we add more masonry to this present jumble of masonry to cope with our requirements during the 10 years was based upon his assumption, belief or speculation that it may take 10 years to build a new Parliament House. But 1 hope he would agree with me that if we could reduce the time by some years, it would be much better to save the money it would cost to add to this place and devote that money towards the cost of the new building. I think that is the proper approach.
I sum up by saying that I hope the Committee will not be allowed to think that it has a full 12 months before it needs to bother to bring down a report.
– We might need 12 months.
– Of course. The Committee might need 2 years, 4 years or 5 years, but I do not want the Committee to think that if the work can be completed earlier than 12 months it need not bother doing anything about it earlier because everyone is satisfied to wait for 12 months. However, as I have said, the
Committee may not be able to do the job in 3 years. I do not know what is involved. In fact, no-one will know what is involved until the Committee commences operations. I think it should be madeclear to the members of the Committee, whoever they may be, that they are not expected to dawdle along and take an unnecessarily lengthy period to bring down a report that can be brought down in a shorter period. That is all I wish to say. I hope my remarks will be borne in mind.
– The honorable member for Fremantle (Mr. Beazley) raised the question of the environment around the new Parliament House. I am authorised to say that the Government would regard the matter of environment as coming within the scope of the Committee.
Question resolved in the affirmative.
Consideration resumed from 2nd December (vide page 3567).
Clause 37. (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in a line of trade or commerce in Australia or in a part of Australia -
by virtue of, or for the purpose of maintaining, his dominant position -
he does an act or thing intended or calculated to result in competitors, or possible competitors, being prevented from, or restricted or prejudiced in, obtaining supplies of goods or services or opportunities of marketing goods or making services available; or
he engages in price-cutting with the object of substantially damaging the business or a competitor or preventing a possible competitor from entering into competition; or
he takes advantage of his dominant position in fixing or determining his prices or other terms or conditions of dealing. (2.) For the purposes of this section - (a) a reference in this section to a person includes a reference to a combination, and, in the application of this section in relation to a combination, an act or thing done by a member of the combination as such a member shall be deemed to be done by the combination;
a person is in a dominant position in a line of trade or commerce in Australia or in a part of Australia if, and only if, the Tribunal is satisfied that that person is the supplier of not less than one-third, by quantity or value, of the goods (including imported goods) or services of any description that are supplied in Australia or in that part of Australia (whether, in the case of goods, the person supplies the goods by wholesale, by retail or otherwise);
without limiting the meaning of the expression “ combination “, two or more persons constitute a combination in relation to goods or services of any description if they so conduct their affairs as in any way to restrict or prevent competition between them in connexion with the supply of goods or services of that description;
two or more corporations that arc related to each other are a combination, and each is included in any other combination in which any of them is included; and
the matters to be taken into account by the Tribunal in determining whether goods or services are of the one description shall be such as the Tribunal thinks most suitable in all the circumstances, with particular reference to the extent to which any goods or services arc competitive.
Upon which Mr. Snedden had moved by way of amendment -
Omit sub-clause (1.), insert the following subclauses: - “ (.1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in the trade in goods of a particular description, or in the supply of services of a particular description, in Australia or in a part of Australia, he takes advantage of that position so as to-
induce or attempt to induce a person carrying on a business to refuse to deal with a third person; or to refuse to deal with a third person except on terms disadvantageous to the third person:
engage in price-cutting with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition with him; or
impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position. “ (1a.) The Tribunal shall not regard as a part of Australia for the purposes of this section an area that does not include the whole of a State or Territory unless it is satisfied that it is appropriate to do so having regard to the substantia] size of the area and its significance as a market area. “ (1b.) The Tribunal shall not regard a description of goods or services as being a particular description of goods or services for the purposes of this section if the Tribunal considers that it would be unreasonable to do so having regard to the fact that other goods or services are competitive with goods or services that are included in the description, and to the extent to which those other goods or services are so competitive.”.
And upon Mr. Killen’s amendment to the proposed amendment -
Omit paragraph (c) of proposed sub-clause (1.).
– The question is, “ That the paragraph proposed to be omitted stand part of the proposed sub-clause “.
Question resolved in the affirmative.
Amendment upon original amendment negatived.
.- by leave - I move -
We have now reached in our discussions on this Bill the first of the outstanding discretions given to the Trade Practices Tribunal. As the Committee will be aware, this is one of the grounds upon which I attack the Bill severely. I have no complaint about any attempt by the Government or the Parliament to wrestle with the problem of restrictive trade practices or with the excesses that flow from monopoly, but I have a strong and unquenchable anxiety to curb to the utmost discretions given to tribunals which are not responsible directly to the Parliament, not answerable to the Parliament and not answerable to the courts. I would have greater respect for the Government’s attitude if it came along and said to the Parliament and to the people: “ We admit this is a very difficult problem, but we tell you with complete candour that what we proposed to do is to hand over to a body a power authorised by us to, in fact, legislate on our behalf. At the same time we propose to hand over to this body power of such a nature that it will be placed beyond the control of the Parliament and beyond the superintendence of the courts “.
The Committee will notice, with respect to the first discretion that I seek to have struck out, that this refers to the Tribunal and its conception of a part of Australia. The clause purports to fetter the Tribunal to regarding a part of Australia as nothing less than a State or a Territory. Then here is the discretion -
The Committee will recall that before this proposed amendment was introduced the provision simply referred to “ a part of Australia”. One could have argued, I think logically, that part of Australia could have run, in terms of geography, from an entire State down to a suburban grocer’s shop although that is taking the argument in extremis. Nevertheless, that argument was open.
Does this radically alter the situation? I submit to the Committee that it does not. I submit that this in fact puts the discretion upon the Tribunal and the Tribunal, if it considers it appropriate to do so, may regard a town in terms of its significance as a market area as being a part of Australia. During the second reading debate I gave some illustrations of this. May I impose upon the Committee another illustration. I mentioned the small country town of Ilfracombe in central western Queensland, a town which handles all the wool scouring in that area. This could meet the requirements of being a substantial area. It would certainly meet the requirements of being significant as a market area. If the Tribunal wanted to control the prices charged by the proprietors of that wool scour I submit that it could do so.
Then when one comes to the second part of this proposed amendment dealing with discretion, one finds precisely the same kind of circumstance. The Tribunal has discretion to consider what would be reasonable or unreasonable in terms of a description of goods or services for the purposes of the section.
In my view, these two discretions combine to give to the Tribunal a discretion that this Parliament cannot control and, in the absence of bad faith shown by the Tribunal, a discretion very difficult or virtually impossible to be controlled by the courts. I understand the problem that the AttorneyGeneral and the Government face, but I confess that I can shed no sympathy at all for the building up in Australia step by step, bit by bit, of a system of administrative discretion that places those who administer it beyond the control of the courts and beyond the reach of Parliament.
It is a very small comfort to me to reflect upon the fact that presidential members of the Tribunal will now be judges because one comes to recognise the sheer absurdity of the appeal provisions. There are no appeal provisions. One’s fears in relation to these discretions could be quietened a little if there did exist in the Bill a complete appeal system, but an appeal system will not exist so we will have the absurdity, at one period or another, of three judges acting as a review body, hearing a matter coming from the Tribunal at first instance and all that they can do is to make a recommendation to the Tribunal. However, that is a matter for the consideration of the Committee at a later stage. I do not propose to argue the case for discretion throughout. Most of my proposed amendments relate to an attempt to curb the discretions given to the Tribunal.
At this stage I should like to cite to the Committee the views expressed by Mr. D. L. Keir and Mr. F. H. Lawson in a work published as far back as 1928 and cited by Lord Hewart in his book “The New Despotism “. I think we could all do worse than take down “ The New Despotism “ from the shelf, blow the dust off it and try to regain some of the principles spelled out in it. This is what the learned judge had to say when dealing with Arlidge’s case -
It would give much more satisfaction if the entire supervisory jurisdiction of the central departments was exercised in public and according to judicial forms. One cannot help sympathising with the successful litigant in L.G.B. v. Arlidge or with members of local authorities who object to being surcharged by a bureaucratic auditor. At present our administrative justice is too much of the “ hole and corner “ variety.
It is also essential that the ordinary Courts shall retain ultimate control in respect of legality; any step which tended to deprive the subject of the protection of the Courts against illegal incroachment on his private rights would be against all the principles of English law and English government, and would imply a return to Star Chamber methods. But there is at the present time an unfortunate tendency, due perhaps partly to a desire to avoid the enormous costs incident to ordinary litigation, but partly, one fears, to bureaucratic impatience of any control, to oust the jurisdiction of the ordinary Courts entirely in administrative matters, lt is not uncommon to find in the Statute-book provisions giving to a minister of the Crown power to decide conclusively and in the last resort questions of a quasi-judicial character.
Substitute “ Tribunal “ for “ minister “ here and one has a pretty accurate description of this Bill. I weary the Committee no further with my inveighing against the discretionary power proposed to be given to the Trade Practices Tribunal. I recognise the difficulty with which the Government is wrestling, but I implore it even at this stage to recognise the fact that there is tremendous and very genuine interest in this proposal to put on the statute book a measure that confers these great discretionary powers and at the same time does not afford a litigant an opportunity to seek redress either by proceedings in the courts or by recourse to the Minister.
– Mr. Chairman, I hope that the empty benches on the Opposition side of the chamber do not betoken an entire loss of interest in this matter on their part. I sincerely trust that this is not so. I support the remarks made by my friend, the honorable member for Moreton (Mr. Killen), and will vote in support of the amendments that he has proposed. This clause raises, perhaps in not so drastic a form, the question that we shall have to consider when we come to sub-clause (7.) of clause 52, which reads -
Orders of the Tribunal have the force of law.
The honorable member has rightly brought attention to the fact that we in this chamber are now proposing to give away legislative power. There are no guide lines of precedent for the work of the proposed Trade Practices Tribunal. We shall not tell it what principles it is to act on but we propose to give it power to act without its actions being subject to the right of appeal. I again remind the Attorney-General that the operations of the Tribunal under the terms of this clause will be validated by clause 52, and I emphasise the application of the ominous sub-clause (7.) of that clause, the terms of which I have read. Because of the provisions of clause 52, the observations made by the honorable member for Moreton are especially pertinent. It seems to me that there will be very little reason for proclaiming any area less than a State a part of Australia for the purposes of this measure. 1 suggest that the Government might very well accept the amendments which have been proposed by the honorable member for Moreton and in support of which, as I have intimated, I shall vote. I foreshadow a further amendment if the clause is passed in the form proposed by the Government. If that occurs I shall move an amendment designed to ensure that declarations of the Tribunal shall be made by means of regulations laid on the table in each House of the Parliament.
– Would the honorable member leave that amendment until clause 52 is before the Committee?
– I would propose it in respect of this clause, too. An amendment of the kind that I have foreshadowed would mean that a determination of the sort that we are considering here would come before this chamber and the Senate for review and ratification. I do not believe that the Parliament should part with its own legislative powers, Sir. I am sure that Opposition members at all events will support the principle that legislative power should not be taken from this Parliament, even if the Government, despite the judgment which has been advanced by the honorable member for Moreton and which I share, considers that this measure should give power to proclaim for the purposes of this clause a part of Australia less than a State. Under the Government’s proposal, we shall give away not an administrative power but a legislative power. In my view, the exercise of this kind of power should always be subject to review by the Parliament. That can be ensured effectively if the decisions of the Tribunal come forward as regulations which can be scrutinised by both Houses and, if thought fit, disallowed by the House of Representatives or the Senate. I repeat the point admirably made by the honorable member for Moreton: It is proposed that we give away not administrative power, but, in effect, legislative power. No self respecting parliament should do this. I am not trying to impeach the effectiveness or the principles of the Bill which the AttorneyGeneral has put before us. I shall vote in support of the amendments proposed by the honorable member for Moreton and I foreshadow a further amendment in the terms that I have indicated should the Committee see fit not to agree to the honorable member’s amendments.
– Mr. Chairman, I am a little astounded at the amendments proposed by the honorable member for Moreton (Mr. Killen). If agreed to, they will provide a complete let-out for any monopoly by enabling it to avoid examination of its monopolistic practices by the Trade Practices Tribunal. The Commonwealth has a limited jurisdiction to examine monopolies. Exactly how limited one would be rather rash to attempt to say in the present state of the law. However, let us suppose for the sake of argument that a monopoly must extend beyond the borders of one State to confer jurisdiction on the Commonwealth. I think that it would be fairly safe to say that if a monopolistic practice were to extend beyond the borders of one State the Commonwealth would have jurisdiction, but if such a practice were confined within the borders of one State, it could well be doubtful whether the Commonwealth would have jurisdiction.
What the honorable member for Moreton is saying is that unless the operations of a monopoly extend over the whole area of one State the monopoly cannot be examined by the Tribunal. If this proposition were correct we would have an interesting situation if a monopoly operated across the borders of three adjoining States - say, South Australia, Victoria and New South Wales - in an area far larger than any one of those States but if it excluded from its operations some parts of all of those States. It seems to me that if the honorable member’s amendments were agreed to, such a monopoly could not be examined by the Tribunal. So it seems to me that the Tribunal must have a discretion in any particular case before it. The terms of the subclauses proposed to be inserted by the Attorney-General’s amendment are certainly an improvement on those of the clause as originally drafted which were capable of being interpreted by the Tribunal as relating to a monopoly in a very small area. This, at least, is a clear guide to the Tribunal that it has to be a very large and substantive area. The Tribunal has first to see whether the area covers almost the whole of the State. It seems to me that this is quite a reasonable requirement because a monopoly could extend beyond the borders of any one State and do considerable damage, yet not operate within the entire area of any one State.
The honorable member for Mackellar (Mr. Wentworth) says that if the amendment is not accepted by the Government, he wants the decision of the Tribunal in a particular instance to be brought before this Parliament as though it were a regulation in general terms. That is what I understood him to say. This seems to me to be a gross misinterpretation of the control that this Parliament exercises over regulations. 1 will always concede that this Parliament should have control over regulations which, after all, are couched in rather general terms, but what the honorable member proposes is that the decision of the Tribunal in a particular case is brought before it For decision, within its discretion and within the guide lines laid down by this Parliament, must be brought back to this Parliament. The time of this House would be taken up with all sorts of trivalities if decisions of every administrative tribunal had to be brought back to this Parliament in that way. Guide lines have to be laid down for the Tribunal and they have to be narrowed as precisely as possible. If we were to say, for instance, that the Murrumbidgee area, the western part of Victoria and the south eastern part of South Australia were to be regarded for this purpose as coming within the jurisdiction of the Tribunal, that would be a regulation in general terms. But what the honorable member for Mackellar proposes is that when the Tribunal makes a decision on the facts before it, that decision has to be re-examined by this House. I have never heard of anything so absurd.
– The two amendments, as I apprehend them, are among a number of amendments which the honorable gentleman has in relation to the exercise of discretion by the Tribunal. I understand completely why the honorable gentleman raises the matter. Some time ago he was kind enough to send me a statement of the things that were worrying him in the Bill and I have had an opportunity to give considerable thought to them. I, like the honorable member for Moreton, entertain the same concern about the administrative process if it is not capable of proper review.
The pasages which the honorable gentleman read the passages of the kind which I myself have read over the years since 1 was a law student. 1 have had a growing concern about this matter, especially when I began to practise. I have made a number of appearances before tribunals and I am sure that the honorable member for Moreton either has made or shortly will make similar appearances. The difficulty that is involved with an administrative tribunal is when it says “ Yes “ or “ No “; or “ I refuse “ or “ I grant”, and nothing more. When administrative tribunals were subject to control by the courts, the courts had to decide whether what the tribunals did was consistent with natural justice, or was the correct application of the law, or was a correct exercise of the discretion that was placed in the tribunals. When the courts started to correct the tribunals, that was the time when the tribunals themselves, acting defensively, ceased to give reasons.
The position I was in with the Parliamentary Draftsmen and Cabinet was that there was an incapacity to make this a judicial tribunal and, therefore, the corollary assumption that it would have to be an administrative tribunal. We were very concerned about the need for this administrative Tribunal to be capable of being corrected where correction was needed. The way in which this was achieved was to include in the Bill a provision that the Tribunal must state its reasons for any determination which it reaches, and that those reasons, as stated, will become part of the record of the Tribunal. The consequence of this is that the Tribunal will not be able to say only. “We think this is in against the public interest”. If it were able to do that, then I think there would be a great deal of cause for concern. But this specific problem was foreseen. That is the reason why this clause is included in the Bill. Clause 49 provides that the Tribunal must state its reasons for its determination.
I know that the honorable member for Moreton has given a great deal of consideration to the Bill. I know that he has isolated some 18 cases - if my recollection is correct - where a discretion is given to the Tribunal. In consequence, the honorable gentleman has given notice of about 18 amendments, although, if I may say so, I was very glad to hear him indicate that he proposes not to move them separately.
– 1 will be asking questions but I will not be making extensive comments.
– I am glad to hear that. I am sure that I will not be able to persuade the honorable gentleman to accept my point of view, but I am confident that I will persuade him to realise that the problem which he so vividly sees has also been noted by myself. What would be his solution is not the solution that I have chosen. But I think that the honorable gentleman, on reflection, would agree that the solution 1 have chosen is a safe solution. There is a need to force the Tribunal to state its reasons so that they are on record in a public document and are capable of being examined for their logic and as to the truth of the facts upon which they are purported to rest. The whole array of the matters which go into the making of the judgment will be included in the records.
This responsibility had to be reposed in somebody, and in the nature of things it could not have been given to a court. No court would have thanked the Parliament for giving it the responsibility to enter into an area of trade and commerce and there to make subjective judgments - it is inevitable that subjective judgments will have to be made by the Tribunal. They will have to be made on the question of what goods are in competition - mention was made last night of metal, glass and plastic containers, and so on. No court would wish to be placed in the position where it had to make such a judgment. Judgments have to be made by a tribunal especially erected for that purpose. That covers the points I wish to make to the honorable member for Moreton in relation to the general issue of discretion.
As to the two particular issues that are raised in these amendments, I think that if he accepts - I mean in a debating sense - what I have said, he will see that in relation to the second amendment, that is, to omit paragraph (c) of proposed sub-clause (1.), it is necessary to invest that discretion, in the Tribunal. The Tribunal is directed that the type of land area which it is to take into account is the whole of a State or the whole of a Territory, unless it is satisfied that there are special reasons. It has to be satisfied that there are special reasons, and it must state its reasons. It cannot merely say: “ We are satisfied that there are special reasons.” It must state why it is satisfied and what are the special circumstances which lead it to conclude that it is less than the whole of the State. This is a most important protection.
I come to the next point in relation to this clause. If the honorable gentleman accepts in a debating sense the proposals I have put and accepts also that discretion must be there, then the words “ if the Tribunal considers that it would be unreasonable” should stay because somebody must say which of these goods are competitive. For instance, a person may have 50 per cent, of the bottle containers but may have only 10 per cent, of the full range of containers. Somebody has to make a judgment on whether or not plastic containers should be regarded as being competitive with glass containers. Nobody could say that this is not a judgment that has to be made by some particular person, a board or a group of persons acting in an objective quasi-judicial way. To put that responsibility on a court would be most unfair to the court because it would require the court to go into the very depth of consideration of these economic matters for which the court is not equipped and is too busy doing its own job. In this sense we would be detracting from it as a court. If I may I shall say finally something about the proposal advanced by the honorable member for Mackellar (Mr. Wentworth).
– I have only foreshadowed it; I have not moved it.
– That is so. I think the honorable gentleman is very concerned about sub-clause (7.) of clause 52. I understand what the honorable gentleman is worried about, but I think I have something which I can put which will show him that it is proper for that sub-clause to be there. I should not like to anticipate at this stage, but I think the amendment that the honorable member has foreshadowed largely flows from that base origin. The honorable gentleman is concerned that this Parliament ought to be able, by the power which it possesses to disallow regulations, to keep a supervisory eye over the Tribunal. I believe that that is what the honorable gentleman has in mind. I hope that what I have said will indicate to him that that supervisory eye will in fact be able to be exercised by the parties themselves through the processes of the Bill and through the processes of the law.
It is important that it should be through these processes of the law because the Tribunal will have to state its reasons which will become a public document. Everybody will be able to see why it says it is adopting a lesser area. I say with respect to the honorable gentleman that it is not appropriate to make this a regulation. If it were to be supervised by the Parliament one would have to devise a method of supervision separate from a regulation because a regulation is made by the Executive. That would not be appropriate.
The other argument about it is that the Parliament is not the appropriate supervisory body because there will need to be an inquiry into all the circumstances surrounding the issue. This will be a specialist inquiry by specialist people who constitute the Tribunal. They will have arguments put to them - arguments that run the full range of the matters that should be taken into account - and then the Tribunal will make its decision in relation to this particular thing and its decision will be isolated in its application to that particular thing. It will have no reference to any other market situation. So it would be inappropriate for the Parliament to decide whether to disallow it or to allow it because the Parliament would not be equipped with that very necessary information which would go towards making this judgment. But on the other hand, there will be the capacity to review the decision through the processes of the Bill and through the processes of the law.
– I do not intend to advert at the present moment to the substantial matters raised by the Attorney-General in regard to my foreshadowed amendment, if indeed it comes on. It will not come on if the amendment proposed by the honorable member for Moreton (Mr. Killen) is carried. I ask the Minister to address his mind to one point. He referred to, and much of his argument depended upon, the provision related to the publication by the Tribunal of its reasons for its decision. If I am not wrong, he was referring to clause 49(2.), Would the Attorney-General be good enough to read with me that clause? It states -
Where the Tribunal makes a determination under this section, it shall state, and record in the records of the Tribunal ….
A determination made under clause 37 is obviously not one made under clause 49.
– It is.
– It is. It is an examinable practice.
– No, I am sorry; this is a determination as to what is or what is not a part of a State and that is not in itself an examinable practice. This is a determination about a different matter. I hesitate to put a fine legal point to the Attorney-General, but I am undoubtedly right. I am asking him whether he will foreshadow the acceptance in clause 49 (2.) of a small amendment so that the sub-clause will read -
Where the Tribunal makes a determination under this section, or under section 37 of the Act, it shall state ….
I am afraid that I am right in the point of law here. It is a technical legal matter and perhaps he will assist me by foreshadowing the acceptance of this wording.
.- Very briefly, I recognise the force of the argument put by the Minister for Shipping and Transport (Mr. Freeth). My objection would be met if the words “ it is satisfied that “ were deleted. In other words, the clause would then read -
This points up my argument. So long as the words “ it is satisfied that “ remain as a discretion the task of getting any supervision at law will be difficult. It does not rule it out completely, but it makes it difficult. The Attorney-General recognises that.
– The honorable member wants to take the whole lot out?
– I concede that now. I recognise the force and quality of the honorable member’s argument. I can do no more. I have merely pointed up my case by saying that if the discretion were deleted 1 would feel happier because the judgment of the Tribunal in determining the significance as a market area could be open to a more ready superintendence by the courts. I say no more about that. I think the Attorney-General this morning has conceded the tremendous dilemma that Commonwealth power is getting itself into when we have to set up tribunals of this nature that are put beyond the ready superintendence of the courts. The judicial power of the Commonwealth is in a very confused state.
I hope that the Attorney-General, in giving consideration to the creation of a new structure of Federal courts, will see that with tribunals of this nature there is some form of appeal to a court. If this involves going to the States and asking them to assist, surely that errand should be undertaken with readiness. If it involves going to the people and pointing out to them that we feel that we can no longer adequately protect their rights, that we can no longer secure ready surveillance by the courts unless we have greater power, I believe that should be undertaken. I have misgiving, as the honorable gentleman knows, about giving these tremendous powers to a body that is not open to ready superintendence by the courts. I say no more on that. He has my assurance that I am not going to batter him with an essay on Dicey and Hewart all through the debate. I have made my point as far as the other discretions are concerned, but I shall be making a few fleeting observations asking why these things have been included in the clause.
Amendment upon original amendment negatived.
– I move -
At the end of proposed sub-clause (1 >.) add the following: - “in which case the Tribunal’s decision shall only be made operative as a regulation under this Act “.
I do not regard this as being of as great importance as the matter coming within the compass of clause 52 (7.). The AttorneyGeneral (Mr. Snedden) has indicated, that, either by argument or amendment - I am not sure which - he proposes to bring forward matters which will rectify any doubts in my mind with regard to that latter clause, which is the important clause. I wait with interest to hear either his argument or the amendment. I am not clear yet as to how he proposes to do it. But whatever action he proposes, the matters covered by that clause are important.
The clause before us raises the same principle as does clause 52 (7.), but raises it in a less controversial and less important manner. If the small amendment to clause 49 that we spoke of were accepted, so that decisions made under this provision could be justified by reasons given and stated, then obviously the matter would become of less importance. But I turn my mind to the observations made by the Minister for Shipping and Transport (Mr. Freeth). I do not think he has appreciated fully my reason tor doubting this particular provision. This is not an administrative function that we are giving over; it is in point of fact a lawmaking function. It is a law-making function because it will be operative in a field where there are very few, if any, precedents. We are giving the Tribunal power to make the law.
This Parliament should not give away its law-making powers. It is very jealous of them. For example, it must approve regulations made under its Acts, but the regulations which come before us for approval very often deal with the most trivial things. I think the Minister for Shipping and Transport must have been joking when he said: “ Surely the Parliament’s time is not going to be taken up with a number of trivial matters arising from determinations made under this provision.” If honorable members will look at the “Votes and Proceedings “ over the last 10 days or so, they will see the triviality of the matters which have been brought before them by means of regulations. In point of fact, in practically no case have honorable members turned their minds to those regulations. Their volume is so great that obviously we could not do so. My point is that if there were an injustice done or a mistake made it would be brought to the attention of either the Government or the Opposition by people outside this Parliament who felt themselves wronged. Then the members of this House could turn their minds to it. I am now looking for an example in the regulations which were brought forward by the Minister for Shipping and Transport himself only a few days ago in this House. I find one, under the Navigation Act, which relates to the fees to be paid for the adjustment of compasses. Consider the triviality of a matter such as that; yet these are matters which should properly come before this Parliament because they are dealt with by regulations made under an act of the Parliament. It reads -
an adjuster of compasses is available at the time and place appointed for the performance of services in relation to a ship and is, for any reason outside his control, compelled to wait for a period in excess of half an hour after that time before he can commence the performance of those services;
an adjuster of compasses is performing service in relation to a ship and, for any reason outside his control, the Services are interrupted and he is compelled to wait for a period in excess of half an hour before he can continue with those services; or
an adjuster of compasses performing services in relation to a ship is compelled, for any reason outside his control, to wait on the ship after the completion of those services for a period in excess of half an hour, a fee calculated at the rate of One pound ten shillings for each hour, or part of an hour, of the excess, or a fee of Six pounds, whichever is the less, is payable, to the adjuster, by virtue of this sub-regulation, in respect of these services.
This is the kind of thing which the Minister brings before this Parliament, and very properly brings before this Parliament.
– But that is the general rule. You are referring to particular cases.
– Of course; but what I am pointing out, and what the Minister has failed to understand so far, is that in this case we are giving away a law-making power because we are giving to the Tribunal a discretion to decide matters without giving it, by statute or by precedent, the principles of which it is to decide them. This apparently has not penetrated yet to the mind of the Minister. He must see the paramount need for asserting the power of this Parliament.
I will admit that the matter involved in this clause is by no means as important as that dealt with in sub-clause (7.) of clause 52 of which the Attorney-General was speaking a moment ago. But surely the Parliament is going to be jealous of its own law-making power. If this were purely an administrative or judicial Tribunal then, very properly, the Parliament should stand out of its decisions; but it is not as yet either of these things. Obviously, after it has been in operation for a decade or two and has established its own precedents, then the character of the Tribunal will change; but in its formative period when we are first setting up the Tribunal, it will be making laws in point of fact, and the Parliament - this is a paramount principle - should not part with its law-making authority.
This may seem a technical point, but it is not. This relates to the powers, functions and duties of Parliament. The AttorneyGeneral said a moment ago that this Parliament might not be the correct authority to review the Tribunal’s decisions. He said the decisions will be technical matters. This Parliament is the correct authority to review law-making functions, but it is not the only authority. I have not suggested for one moment that any review body, other than the Parliament, should be eliminated from operating in respect of this legislation. I simply say that whatever may be the correct review authority in respect of technical matters, these are not in the Parliament’s competence but it is in the Parliament’s competence, and it is the Parliament’s duty to make clear its authority in respect of law making. In this case we are giving to a Tribunal the effective power to make the law. If we put down more exact statutory requirements, not leaving so much to discretion, it would be different. If, as in the case of common law, there were a large body of accumulated precedent, the Tribunal would find itself bound by that precedent, but in this case we are entering a new field. There is no precedent; there is no law. We give to the Tribunal the power to declare the law. This we should not do.
I do not take kindly to the idea that the Parliament is too busy to keep its own law making powers intact. The Parliament very rightly has before it this stream of triviality by regulation. I read one example from the regulations presented by the Minister for Shipping and Transport only in the last few days. That is only one example, but it is quite proper. The Minister did the right thing, but it is a trivial thing. It is right that the Parliament should have the power to review these particular types of trivialities where law making functions are involved, in relation to a particular case or a class of cases. They are law making functions and the Parliament should have the right to review them. I ask the Opposition, I ask the Government, and I ask the AttorneyGeneral to consider this matter and to see whether in respect of this matter - not an important one - they could accept the amendment, and whether they might think more closely about it when we come to consider clause 52 (7.).
.- I do not profess to know or to understand completely the amendment moved by the honorable member for Mackellar (Mr. Wentworth), because it is only one of the many - in addition to the 107 circulated amendments - that have been moved off the cuff. It is practically impossible to follow them accurately or to understand them when they are given so rapidly, and evidently without much consideration. I say only about the amendment that it is one designed by honorable members, such as the honorable member for Mackellar, on the other side of the Parliament, to make this Bill unworkable and to destroy completely the functions of the Tribunal. Why this tactic is being indulged in is beyond me. The legislation was introduced originally in 1962. The honorable member’s own Minister, his own party and others have given honorable members opposite ample time to discuss it and to propose an amendment to the clause under discussion. I ask the AttorneyGeneral (Mr. Snedden) whether the honorable member for Mackellar had any opportunity to say anything at all about the matter in the party room and whether we are just getting a secondhand proposal that has been overwhelmingly rejected by the Government parties. About 107 amendments have been circulated and I should imagine that about 20 or 30 of this nature are to be moved. The Committee is bogged down by this conduct and no progress whatever has been made.
– Order! I suggest to the honorable member for Grayndler that the comments he is making on this amendment have been made previously and are not relevant to this matter.
– I bow to your ruling, Mr. Chairman, but I suggest at this stage to the Attorney-General that he should have the debate adjourned, take the legislation back to the Government parties, decide whether they want the legislation,- and not allow the Parliament to be held up by tactics designed to frustrate the passage of this legislation - contrary to what we understand to be the wish of the Government.
– I resent very much the imputations of the honorable member for Grayndler (Mr. Daly). They seem to me to be quite unjustified. I have not in any way endeavoured to make this Bill unworkable. That is not the effect of this proposal at all. This proposal is simply to preserve the power of the Parliament. I should have thought that the honorable member for Grayndler would be with me in the desire to preserve the power of the Parliament and its democratic legislative functions. I hesitate to say this, but in view of the remarks of the honorable member it seems that he apparently is only interested in getting back to his Christmas festivities. What he is anxious to do is to get out of this chamber and shut this debate up.
– I feel that the remarks just made by the honorable member for Mackellar (Mr. Wentworth) should not pass unnoticed. He took a plane to Sydney last night, and spent the night in Sydney on private Christmas festivities but he comes back here today and criticises honorable members.
Amendment upon original amendment negatived.
Original amendment (Mr. Snedden’s) agreed to.
– by leave - I move -
Honorable members will recall that last night I moved an amendment to the commencing words of the clause. I had used, in drafting, the words “ in a line of trade or commerce “, but we substituted the words “ goods of a particular description or services of a particular description “. The first of the amendments that I now propose is consequential upon this alteration. The second proposed amendment is important, having regard to the amendment to subclause (1.) (b) which has been accepted by the Committee. The third amendment proposes the omission of a paragraph, which is the subject matter of a separate subclause. All three of the proposed amendments are formal.
Amendments agreed to.
.- I move -
In sub-clause (2.), paragraph (b), omit “ and only if, the Tribunal is satisfied that “.
In clauses 35 and 36, concerning examinable agreements and examinable practices, there are objective criteria to enable the courts, if the Tribunals get off the rails, to exercise some control, but with regard to monopolisation in terms of clause 37 - even recognising some forms of monopolisation as examinable practices - we have subjective criteria. I put it to the Attorney-General (Mr. Snedden) that if the Tribunal were satisfied that the supplier of goods was in a dominant position and came to the conclusion, quite honestly although misguidedly, that he had one-third of the market, whereas in fact he had one-seventh of the market, there would be absolutely nothing that the court could do about it. The court could not replace its discretion for the discretion of the Tribunal. Why is it that in clauses 35 and 36 we are quite agreeable to accept objective criteria but with clause 37 we say: “ We are prepared to leave it entirely subjectively to the Tribunal “? I do not understand this. I am concerned with the words “ if the Tribunal is satisfied “. Why is it that we make this discretion available in clause 37, but not in clauses 35 and 36?
– I think these words must be regarded in the context of limiting the discretion that necessarily has to be given to the Tribunal. The actual words in the clause are - a person is in a dominant position in a line of trade or commerce in Australia or in a part of Australia if, and only if, the Tribunal is satisfied
The words “ and only if “ give emphasis to this point. The words “ and only if “ are quite different from the words “the Tribunal is satisfied”. The words “if the Tribunal is satisfied” fall into the general context of discretion, and the words “ and only if” were designed to give a clear indication to the Tribunal that it should be very careful in the exercise of discretion.
.- I do not press the point upon the Committee and upon the Attorney-General (Mr. Snedden). I have my own views and we will agree to differ. I contend that if the Tribunal erroneously, but quite honestly, arrived at onethird instead of one-seventh there would be absolutely nothing that any court could do about it. That would be the end of the line. This is my point regarding this discretion. 1 regret that the Government did not leave it open for the matter to be determined in a regular way if the Tribunal did get off the rails. If a party said: “Look, the Tribunal says that I am the supplier of onethird of the market but all the evidence I produce indicates that I am in fact the supplier of only one-seventh” there would be nothing the court could do about it. The court would say: “ Too bad. The Tribunal arrived at this conclusion and it was satisfied you were the supplier of onethird.”
– There will be a Review Division of the Tribunal.
– When we come to that clause we will have some rugged exchanges. However, all the Review Division could do would be to say to the Tribunal: “You made a mistake “. There is no obligation on the Tribunal to change its mind.
.- I move -
In sub-clause (2.), paragraph (b), omit “ onethird”, insert “one-half”.
I want to know what arithmetical virtue “ one-third “ has so far as the market is concerned. Can the Attorney-General (Mr. Snedden) or any member of the Government point to any business in Australia that has one-third of the market and which could be described as a monopoly? I am not aware of any such company. When the Government settled for one-third, presumably it drew on the United Kingdom legislation and simply followed it. Does any member of this Committee know of any company in Australia that controls but one-third by quantity or value of the goods in a part of
Australia and which can be described as a monopoly?
– Australian Consolidated Industries Ltd.
– It would have more than one-third. My view is that this clause is directed against all of Australia’s most successful industries. I think the Government arbitrarily settled for one-third without explaining why one-third puts a person on the threshold, as it were, of being in a dominant position with respect to trade. I do not think there is anything else that one can say about this. I have sought an intimation from the Attorney-General why the Government settled for one-third. I should have thought that a person with one-half of the market would be in a position substantially to control that market and in a way to influence inimically the Australian public, but until he gets to that stage I fail to see how he can exercise any control. Quite apart from that, how would a person know when he was reaching the stage of having one-third of the market? Companies, if expanding, would have to be very careful in developing new markets to see that they did not put themselves in the twilight zone of prices in terms of clause 37. I would welcome an explanation from the A Attorney-General.
.- I support the amendment. I think there is much merit in what the honorable member for Moreton (Mr. Killen) said, particularly if we read the reference to one-third in this clause in relation to the words “ if, and only if, the Tribunal is satisfied “. In determining this matter we must consider the words preceding the arithmetical figure of onethird. It seems to me most remarkable that one can determine with certainty that one-third is right for all industries, because industries vary considerably. The Tribunal is being given a specific direction in relation to this mathematical figure and I should like to know why it has been selected as a suitable figure. I think we should examine this matter further to determine whether one-half does not meet the situation more appropriately.
– I have been asked for an explanation and I shall do my best to provide it. This matter was given the utmost scrutiny and attention by my colleagues in their consideration of it in Cabinet. They came to the conclusion that a quantitative statement should be made in the legislation. The alternative to that, as the honorable member will readily agree, is to leave it to the tribunal to decide whether there is a dominant position, and this was not desired. It was desired to say what sort of figure should be selected. We had before us the example of the British Monopolies Commission, which accepted a figure of one-third, and by looking at the reports of the Commission it became clear that that figure was about right. What the honorable member for Isaacs (Mr. Haworth) said was correct. One cannot say that one-third will be the right figure for Australia.
– But one-third of the United Kingdom’s population is vastly different from one-third of the population, of Australia.
– It is a different volume, but not a different percentage.
– No, but it has a very different effect.
– Yes. The Government gave a great deal of consideration to this. We felt that if we came down to 20 per cent, it would be manifestly too low and that if we went up to 50 per cent, that would be manifestly too high, so one-third was the figure which the Government decided, in the exercise of its corporate judgment, was correct.
Clause, as amended, agreed to.
In determining whether an agreement is an examinable agreement, regard shall not be had - (h)
– I move -
At the end of the clause add the following word and paragraph: - “or (i) to any provision of an agreement to the extent that it gives rise to a restriction in relation to the carriage of goods by sea between Australia and places outside Australia.”.
Clause 38 deals with exemptions in respect of agreements. It details a number of things which should not be taken into account, but there was one thing which should have been added and which was not.I refer to the subject matter of paragraph (i) which I propose should be added. This is an amendment which is consequential on what the Committee has already debated at some length. We are not repealing the Australian Industries Preservation Act. We are maintaining so much of it as deals with ocean shipping. Until the time when the special provisions come into force we must exempt ocean shipping from consideration under this Bill. I move this amendment feeling that it is both a technical and a consequential amendment and I am sure that the Committee will agree to it.
Mr. DALY (Grayndler) (12.4].- I do not wish to address my remarks to the amendment, which is not opposed by the Opposition, but I have a particular case in mind and I would like the Attorney-General (Mr. Snedden) to say whether it will be covered under this legislation, and, if not, whether he can provide an amendment under which cases that I will outline in a moment would be covered. This is a particularly important clause because it deals with exemptions in respect of agreements. In other words, it provides the escape clause to the legislation. I have in mind one particular matter which I would say comes under paragraphs (g) and (h) of the clause, on page 19 of the Bill, dealing with the question of trade marks. This matter was brought to my attention by the honorable member for Gellibrand (Mr. McIvor). I wish to quote a letter, which the AttorneyGeneral has already seen, in order to show what has been done and how, if this Bill goes through as it is, it will allow this state of affairs to continue. The letter is from Cordini Pty. Ltd., importers, of 3 Fisher Parade, Ascot Vale, Victoria, and is addressed to Mr. H. McIvor. It reads -
Corindi Pty. Ltd. was incorporated under the Companies Act 1961 on the 12th day of November 1963 with one share held by each of its two Directors: Noel Rodney Campbell, 3 Fisher Parade, Ascot Vale, Occupation: Dental Student; Barry Pemberton Hutchens, 4 Towers St., Beaumaris, Accountant.
The company was founded to pay the University fees of Campbell and to provide an investment for Hutchens.
Trading was based on importation of goods from outside Australia and direct retailing of these goods to the public. By doing this the public was saved the expense of a wholesaler’s and a retailer’s overhead and profit margin, instead they only had to pay one of these. This resulted in discounts ranging from 174 per cent, up to 40 per cent, below the official retail price set in Australia.
The public was provided with an equivalent warranty to that given by other agents in Australia so that they were not buying inferior articles or receiving inferior service.
Trade organisations competing with us sent us solicitors’ letters threatening action if we did not cease operations. They requested the Customs Department to check our declared values, they requested the sales tax department to check our accounts. They placed advertisements in the paper informing the public that we were not official agents of the Companies whose products we were selling. They suggested that we may offer imperfect goods. The Melbourne Chamber of Commerce (Photographic Merchants Section) stated that “numerous complaints have been received that cameras and projectors purchased from discount houses have not been receiving free repair service under guarantee.”, in an advertisement in the “ Age “ newspaper. When we found it necessary to replace body numbers with our own to prevent the trade tracing our suppliers, the police were sent to us following a complaint that we were handling stolen goods. The police demanded to know who our suppliers were and our solicitor had to inform them that they were exceeding their authority.
The latest endeavour to stop our trading is a registration under the Trade Mark Act as shown on the attached document.
This document is headed “ Member of the Swift Group of Companies - Dealer Protection - Registration under the Trade Mark Act “ and reads -
From November 20, 1964, cameras, photographic equipment, film, etc., bearing top brand names: - Canon, Yashica, Ansco, are prohibited imports for commercial purposes except through Swift and Bleakley Pty. Ltd., Kent Photographies Pty. Ltd., Swain’s Industries Pty. Ltd. Bonds have been entered into with the Comptroller General of Customs, Canberra, effective in all Capital Cities authorising Customs “to seize any such goods, if imported, as forfeited to the Commonwealth “.
In co-operation with overseas Principals who, with ourselves, are most concerned at the lack of orderly marketing tendencies in Australia adversely affecting both Photographic Retailers and ourselves, we are pleased to announce finality to our efforts over the past 12 months whereby the above Companies have entered into customs bonds to protect you, our valued Dealers.
In other words, to tie up the market. The document is signed on behalf of the three companies concerned. The letter I was quoting continues -
This prevents all commercial organisations from importing genuine articles bearing the registered trade marks except those companies who have registered the Trade Marks. This means that they have a monopoly of distribution of these products throughout Australia and that in the future the Australian public will be deprived of the savings that we have been giving them on these products mentioned. It further states that Customs are authorised “to seize any such goods, if imported, as forfeited to the Commonwealth”.
Yours Sincerely, Noel P. Campbell. (Director).
As I read the Bill, under paragraphs (g) and (h) of clause 38 this kind of conduct will be permitted to continue and companies such as this will be not only maligned as mentioned in the letter I have read but also forced completely out of business, despite the tremendous saving to the public of from 17i per cent to 40 per cent, shown in the document.
– They were forced out of business.
– The honorable member for Gellibrand informs me that the firm has been forced out of business. The honorable member brought these matters urgently to the attention of the Attorney-General and in a letter dated 6th May and addressed to the honorable member the Attorney-General said -
I refer to your personal representations on behalf of Corindi Pty. Ltd.
Two separate issues are raised by the correspondence you have given me. The first relates to a trade circular apparently issued by Swift and Bleakly Pty. Ltd., Kent Photographies Pty. Ltd. and Swains Industries Pty. Ltd. This circular states that goods bearing the trade marks CANON, YASHICA and ANSCO are prohibited imports for commercial purposes except through the three companies named.
The Attorney-General then quoted section 103 of the Trade Marks Act 1955-1958. I do not have time to read the section to the Committee but, with the concurrence of honorable members, I incorporate it in “ Hansard “. 103 (1.) Goods manufactured outside Australia and having applied to them a trade mark, being, or being substantially identical with, a registered trade mark the registered proprietor or a registered user of which is a manufacturer, dealer or trader in Australia, are, if the registered proprietor or registered user notifies the Comptroller-General of Customs in writing that he objects to the importation of the goods, prohibited to be imported and, if imported, may be seized as forfeited to the Commonwealth. (2.) Subject to the regulations, the ComptrollerGeneral of Customs, or on appeal from him the Minister of State for Trade and Customs, may. if in his opinion the contravention has not occurred either knowingly or negligently, permit goods which are liable to be or have been seized as forfeited under this section to be delivered to the owner or importer upon security being given to the satisfaction of the Comptroller-General-
The Attorney-General’s letter continues -
I have made inquiries and have been informed that the three companies named have served notice on the Comptroller-General of Customs in accordance with section 103 (1.). Swift and Bleakley Pty. Ltd. is the registered user of the trade mark CANON, Kent Photographies Pty. Ltd. is the registered user of the trade mark YASHICA and Swains Industries Pty. Ltd. is the registered user of the trade mark ANSCO. Security has been given to the Comptroller-General of Customs in terms of section 103 of the Trade Marks Act.
The second issue relates to an allegation made on behalf of Kodak (Australasia) Pty. Ltd.–
A struggling company, of course - that Corindi Pty. Ltd. is infringing the registered trade marks KODAK and KODACHROME.I am, you will appreciate, unable to comment on the substance of this allegation because it would involve giving advice on a matter of law to private persons and that is outside my function as AttorneyGeneral.
Copies of correspondence you asked to be returned are attached.
Here we have a case where the Kodak organisation and other huge companies have power to force out of business people who, with the best of intentions, have sought to set themselves up in business. If the Government seeks to control the activities of huge monopolies certainly it will not be able to do so under this clause because the clause exempts these people. The case to which I have referred is a glaring example of how these big companies operate. It is probably one of the very few to be brought to the notice of the Parliament. No doubt thousands of small organisations disappear before they can become firmly established.
In his speech at the second reading stage of the Bill the honorable member for Wakefield (Mr. Kelly) referred to the tragic case of a man who could not get going in business because of the activities of large combines such as those to which I have referred. If the clause with which we are now dealing specifically exempts from examination agreements made by these large companies, will the Attorney-General consider amending the Bill in order to afford some protection to people who are suffering because of the activities of monopolies? Something should be done - perhaps legal action could be taken - to protect reputable citizens who are accused, as in the case to which I have referred, of having stolen goods simply because they reduced the price of those goods to the public. It will be apparent to honorable members that terrific pressure was brought to bear, through correspondence and other action, by overseas controlled interests with a view to making small companies peak and go out of business. I have quoted the classic example of men being forced out of business simply because they reduced their prices to the public by from 17 per cent, to 40 per cent. This Bill makes no provision to deal with cases of this nature. If such cases are not covered by the Bill the Attorney-General should consider a suitable amendment in order to bring them within the scope of the bill.
.- I wish to speak not to the amendment but to the clause itself. I believe that the honorable member for Grayndler (Mr. Daly) is entitled to have an answer to the case that he put. Clause 38 sets out the type of provisions which can be disregarded in determining whether an agreement must be registered and can be examined. Among others, agreements pursuant to the Trade Marks Act are exempt. The honorable member for Grayndler has shown that the Trade Marks Act has been abused to drive competitors out of business and to maintain resale prices. If the Trade Marks Act, which in some cases entitles a person to an exemption from examination of his agreements, can have the result, under the law as it stands, which the honorable member has cited, then this Bill should be amended to preclude the abuse of the Trade Marks Act in that way and to modify the exemptions under this Bill.
There is another exemption which I wish to mention. The whole of clause 38 is presumably meant to spell out the exceptions in the scheme put to the House on behalf of Sir Garfield Barwick by the Minister for Shipping and Transport (Mr. Freeth) on 6th December 1962. There were to be three exceptions to the list of practices required to be registered under Sir Garfield Barwick’s scheme. In one respect, however, clause 38 goes very much further than Sir Garfield Barwick had proposed. Among the exceptions, to quote Sir Garfield Barwick’s words, were “ practices already regulated by law; for example, industrial agreements, contracts of employment and transactions pursuant to statutory primary produce marketing schemes “. The practices already regulated by law in the form of industrial agreements and contracts of employment are dealt with in paragraph (c) of clause 38. The exempt practices represented by transactions pursuant to statutory primary produce marketing schemes are stated by paragraph (b) of clause 38 to be -
It will be noticed that the exemption is not confined to marketing schemes. It extends to any agreement authorised or approved by any State Act and/or any regulations under a State Act. Such acts and regulations can cover - they do already cover - a much greater variety of agreements than primary produce marketing schemes. To illustrate the scope of statutory exemptions I direct attention to the proposed amendment which the Attorney-General has himself now circulated to a subsequent clause of the Bill which he introduced more than six months ago. That amendment in effect exempts all practices relating to tied hotels, tied garages and chemists shops; many other businesses can be cited. Exemption is now to be granted in respect of any agreements which require lessees to purchase from their lessors all or any of the goods or services required in connection with the conduct of a business on the land leased. Similarly, exemption is to be granted in respect of any agreements which require businessmen to purchase such goods or services from persons who have lent them money or granted them credit. This is an exemption that was sever forecast, but it does show that our Parliament can make exemptions over a very wide field in respect of agreements and quite obviously any State Parliament can similarly exempt a wide range of practices. It has been made very plain by statements by the Premier of Victoria and the Deputy Premier and Chief Secretary of Victoria, outside the Parliament and to a certain extent inside the Parliament, although I have not checked “ Hansard “, and again it has been made plain by statements in the Legislative Council of Victoria by the Minister for Local Government when introducing the Collusive Practices Bill that the Liberal Government of Victoria is strongly opposed to nearly every feature of this Bill. Accordingly, that Government is quite able and is probably minded to exempt many of the practices meant to be examined and registered under the Bill from any operation in Victoria. The attitude of the Liberal Party in Victoria has also been made manifest in this place in very many speeches made by the honorable members for Isaacs (Mr. Haworth), McMillan (Mr. Buchanan) and Balaclava (Mr. Whittorn).
– Quite independently, though.
– This may be spontaneous resistance. However, it is resistance extending over a large and identifiable part of Australia. It does not need any regulation in the “ Gazette “ to identify Victoria as the part of Australia where this resistance is most marked and where it can be most readily implemented. Paragraph (b) of clause 38 enables any State Government to exempt any practices or agreements it likes from the operation of the Commonwealth Bill. This was not forecast by Sir Garfield Barwick. It was not in the Bill introduced last May. I have limited most of my participation in the debate in Committee to the departures from Sir Garfield Barwick’s proposals of three years ago. This, however, is a most marked departure, and I suggest that the Attorney-General should explain why Sir Garfield Barwick’s proposals, which were limited to marketing schemes, have been extended over such a wide, limitless field as this paragraph covers. Any State Government could set this Bill at naught by legitimating and thereby exempting a practice that the Commonwealth did not like.
.- I wish to suggest an amendment of small moment. It is a matter of drafting procedure. In my experience of drafting legal documents, we were always taught as a matter of practice that, when a number of sub-sections reached (h), we should normally go to (j) and not include (i). This was done to prevent confusion with sub-sections numbered (i), (ii) and (iii). I ask honorable members to look at clause 61 on page 37 of the Bill. The numbering (i), (ii) and (iii) can be seen there. I suggest to the AttorneyGeneral that, in the final preparation of the Bill, he accede to my request and remove the (i) and insert (j) in the interests of clarity.
– The suggestion of the honorable member for Maribyrnong (Mr. Stokes) strikes dear to me. I agree with him emphatically, but unfortunately this does not fall within my realm or his. It falls within the realm of the honorable and distinguished Clerk of the House, who will have the Bill put into a form in which it can go to the Senate. I think he will be the one to decide whether this paragraph will be numbered (i) or (j). I assure the honorable member for Maribyrnong that I will talk to the Draftsman and the Clerk to see whether the point he made can be adopted.
I come to the matter raised by the Deputy Leader of the Opposition (Mr. Whitlam). It is true that my distinguished predecessor, Sir Garfield Barwick, as Attorney-General, had published, through a speech made by my colleague, the Minister for Shipping and Transport (Mr. Freeth), a statement which included the elements of a bill that was proposed to deal with trade practices. The Deputy Leader has the document in front of him. It covers two pages that are about the size of a “Hansard” sheet. The Bill under consideration, as honorable gentlemen know, contains 105 clauses and covers 48 pages. One could not expect the two page document to contain all the details of the Bill. When Sir Garfield Barwick said there would be certain exemptions, he named three of them in the broad. But in drafting the Bill, this aspect could not possibly be left as it was expressed in the broad. People would ask: “ What does it mean?” Therefore, precise expression had to be given to it
The proposal for the exemption of primary produce marketing schemes will in fact be achieved more directly than was formerly intended. The Deputy Leader and other honorable members will have seen an amendment that I circulated yesterday. It includes in clause 105 a regulation making power to exempt specifically primary produce marketing schemes and to do it directly by regulation under this legislation. What is referred to here in paragraphs (a) and (b) of clause 38 is the power of the Parliament in (a) the Commonwealth and in (b) the State Parliament to exempt some particular agreement or practice. Let me make this clear to honorable members; I am sure it is in all their minds. This Parliament is the best place in which to determine public interest. But it is not possible, of course, for the Parliament to give its attention to the whole range of matters where public interest has to be determined. The consequence is that the Parliament says: “ For the majority of them we must erect some machinery - in this case a trade practices tribunal - to consider the public interest.” But some matters are so important that the Parliament itself ought to determine the public interest. So it is with some of the marketing schemes. The Parliament itself decides that it will determine them.
The Deputy Leader of the Opposition made the point that a State government could, by exemptions, put this legislation at naught. I take the point that he makes, but I think he may also agree with me that, if a government decides to exempt some particular activity, it must stand up in the Parliament, justify its action and be subject to criticism. If it decides to exempt an activity, it must accept the job of justifying its actions. This is properly so. The other point is that if anyone envisages a State Government putting the Act to naught by a wide-ranging series of exemptions, I think this is unlikely to happen because it is only when the State Government is coming in on a co-operative basis that we will have a State Government able to exempt. So one would not expect a State Government to pass legislation which the GovernorGeneral can decide is complementary and then proceed by exemptions granted in the Parliament to set it at naught.
I think that the points made by the Deputy Leader of the Opposition deserve consideration - in fact they have been considered - and I am sure he will be satisfied with what I have put to him.
– Does the AttorneyGeneral suggest that a State Act referred to in paragraph (b) of clause 38 could have an effect only if the legislation of that State had been declared by the Governor-General to be complementary to this Bill?
– It is not intended that a State Parliament should be able to give an exemption to State activities without the need for it arising, and the need would not arise until the State Government had, by co-operation or reference of power or something of that kind, put purely intrastate matters within the reach of this legislation. If the State Parliament puts intrastate matters within the reach of this Parliament, then that State Parliament will have the power to exempt in relation to these things.
– This is to make it easier to obtain agreement with the States to the exercise of Commonwealth powers over restrictive practices.
– No, I would not say it is for the purpose of making it easier - quite the contrary. It is something which needs to be there. If it were not there the State Governments would say that the Commonwealth has power to exempt certain activities which the Commonwealth Parliament says ought to be exempted and in the Commonwealth Parliament the exemption is made and that Commonwealth Parliament or the Commonwealth Government of the day has to justify it. The State Governments would equally validly say in relation to wholly intrastate matters that there ought to be a comparable power for the State Government or the State Parliament. So this provision is inserted. It is not a case of making it easier. I suppose in a manner of speaking it is making it easier, but it is not what one might call an enticement or anything like that. It is something that must be there if there is a legislative Act of the State which brings intrastate matters within the ambit of the Parliament.
– It certainly could provide for a wider exemption than one covering only marketing schemes?
– Indeed it could. I readily accept that. I return to my earlier point that the Parliament can decide itself to determine where public interest lies, but I would not accept the proposition that a Parliament would readily do it. It would have to be a matter of sufficient importance for the government of the day to decide that it should be handled in this way.
– Is the AttorneyGeneral sure that this has not been put in to placate Mr. Bolte?
– Oh, no.
– Does the AttorneyGeneral intend to say something about the trade mark matter raised by the honorable member for Gellibrand (Mr. Mclvor)?
– Yes. I apologise for overlooking that matter. Perhaps I wander from the point a little here, Mr. Chairman, but I have had the advantage of discussions with the honorable member for Gellibrand about this matter. I went into it very closely from two angles. One was the legal angle in the ordinary statutory law sense, this being a trade mark matter, and the other was the restrictive practices angle. As to restrictive practices no issues were raised which concerned me because there was involved none of the three practices with which I was concerned. The three practices are: Firstly, by threat or promise inducing an advantage; secondly, forcing a third person’s product; thirdly, inducing a refusal to deal on behalf of a trade association or pursuant to an agreement. None of those practices was involved in these circumstances, so trade marks are exempted in relation to those practices but only in relation to those three. In relation to monopolisation trade marks are not exempted, but none of these three practices was involved and as far as I could see monopolisation was not involved and it did not raise an issue in relation to the trade marks legislation.
What was involved there was a straight question of law. It was a question of one person who had a trade mark and had assigned his trade mark rights to somebody else, as he was entitled to do under the law, and of the person who was the assignee of the trade mark seeking to enforce the rights which he had bought from the trade mark owner. So there are three parties. There is the trade mark owner, and he, so to speak, has departed from the scene, if I remember the facts correctly. He assigned his rights in connection with that trade mark to somebody in Australia. So there is a person who has a trade mark in Australia and who has paid a valuable consideration for it. Then there is some other person who is using the trade mark, and the person who has bought the right to use it says that it is costing him money while a third person, who is not entitled to use the trade mark, uses it. This was a question of law. I answered the honorable gentleman by letter. I think the honorable member for Grayndler (Mr. Daly) read the letter, and it will be in “Hansard”. The honorable member for Gellibrand should suggest that his constituents take the matter to their legal advisers and get legal opinion on it.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 39. (1.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act. (2.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice by reason of acts or things done or proposed to be done in a particular State or Territory, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act of that State or an Ordinance of that Territory. (3.) In determining whether a person has engaged, is engaging or proposes to engage in an examinable practice other than a practice of monopolization, regard shall not be had to a provision or condition referred to in any of paragraphs (c) to (h) (inclusive) of the last preceding section or to any act or thing done in pursuance of such a provision or condition. (4.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice of monopolization, regard shall not be had to a provision referred to in paragraph (c), (d) or (e) of the last preceding section or to any act or thing done in pursuance of such a provision.
– I move -
After sub-clause (2.), insert the following subclauses: - “ (2a.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to any act or thing done or proposed to be done in relation to the carriage of goods by sea between Australia and places outside Australia. “(2b.) In determining whether a person (other than a trade association or a person acting as a member of, or on behalf of, a trade association) has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to -
This amendment is for the purpose of inserting two new sub-clauses in clause 39. Let me first remind honorable gentlemen of the provisions of clause 39. Clause 38, which has just been agreed to, deals with exemptions with relation to examinable agreements. Clause 39 deals with exemptions in relation to examinable practices. I propose to insert sub-clauses (2a.) and (2b.). Subclause (2a.) is, like the earlier amendments, a consequential amendment in relation to ocean shipping and the Australian Industries Preservation Act. I should think that subclause (2a.) would not occasion anybody any difficulty because the matter has already been dealt with. But when one comes to sub-clause (2b.) one finds that there has been an exemption in relation to the practices of a term and condition which is required by the owner of a freehold when he licenses or leases the freehold to another occupant to carry on business on that freehold. This is a case in which a person holds a piece of freehold from which a business is conducted. He is the marketer of a particular item. He leases that freehold, on which is the business of marketing the item, and the owner of the freehold says to the lessee: “ You can have the lease but a condition of the lease is that you must sell my products from it.
– Would this apply to petrol stations?
– It would apply to a petrol reselling station. It would remove from examination by the Tribunal a term or condition of a lease or licence whereby, to use the honorable member’s example, the petrol filling station was required by the owner of the freehold, being a petrol company, to resell the petrol of that company.
– Does it apply to tied houses?
– What about tyres, batteries and other things?
– The honorable member for Cunningham asks: “ Does it apply to tied houses? “ I do not see that distinction in this field - that is, if it was an hotel owned by a brewery and the brewery said: “ We lease this hotel to you but you must sell our beer “. Then the honorable member for Newcastle asked: “What about tyres, batteries and accessories?”. The answer - this is what I think is the meaning of the legislation; I must say that this is the way in which it was drawn - is that, if one person says to another person in relation to that freehold, “ Not only must you sell my product from my freehold but you must sell this other person’s product “, that would fall, as an examinable practice, within clause 36 (1.) (b). The answer is that the person who owns the freehold can require the person to whom he leases the freehold to market from that freehold goods which the owner of the freehold himself markets.
– What would be the position if the manufacturers or distributors of petrol and tyres formed themselves into a combine, as has been done in America, reached agreement to distribute petrol, batteries and tyres, and then had their tied service stations?
– I would not attempt to give an answer to a theoretical question of that kind. I know that the honorable gentleman is wanting some clarity, and I should like to satisfy him. But as I said, I cannot answer a theoretical question. Over the period that I have been concerned with developing this legislation, as a backbencher and then as Attorney-General, I have steadfastly refused to say anything about particular activities which might be thought by anybody to be prejudging them. So I shall not answer the question in the way in which it was put.
I direct the honorable gentleman’s attention to the way in which the amendment is drawn - (2b.) In determining whether a person (other than a trade association or a person acting as a member of, or on behalf of, a trade association) has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had
Then, after reference to a term or condition relating to the real property these most significant words would appear - unless the term or condition is imposed or to be imposed in pursuance of an agreement with a person carrying on a business other than the person on whom the term or condition is, or is to be, imposed.
That means that regard will not be had to the term or condition imposed unless it is imposed pursuant to an agreement with a third person. The amendment has been drawn in a most significant manner. I do not say this offensively, but if the honorable member looks at these words carefully - I confess readily that they are not the easiest words to follow - and reads the words commencing with “ unless the term or condition “ in conjunction with the words “ regard shall not be had to”, the meaning will become clear.
Sitting suspended from 12.45 to 2.15 p.m.
– This amendment bristles with possibilities for the evasion of the whole spirit and purpose of the Bill. Perhaps one could characterise the amendment as what a middle-aged woman would call a menopause child - a little afterthought on the part of the Government. If I might pursue the metaphor further, I can say that the amendment is pregnant with possibilities, particularly in relation to petrol and brewery combines and to quite a wide category of interest which would be seeking ways and means to avoid the provisions of this legislation. To begin with I propose to deal with tyres, batteries and accessories. These T.B.A. agreements as they are commonly called relate to single brand petrol stations. The practice is well established throughout Australia.
I am glad that the Minister for the Navy (Mr. Chaney) is seated at the table because I have with me a letter of 25th November 1965 which was circulated amongst honorable members from Western Australia and passed on to me. It contains bitter complaints by the Western Australian Automobile Chamber of Commerce against the introduction of the new amendments. Reference is made in the letter to a conference which was held at the time that Sir Garfield Barwick was Attorney-General. The present Minister for Shipping and Transport (Mr. Freeth) and the present Minister for the Navy were in attendance. At that meeting representatives of the motor industry - particularly petrol station resellers - put their case in opposition to what is known as “ full line forcing “. It is bad enough for the Government not to be legislating to prevent full line forcing but for it deliberately, and in the most calculated way, to sanction full line forcing as the result of the last minute approach of an interested concern, is, I think, more than the people of Australia should be asked to accept.
The T.B.A. agreements in relation to tyres, batteries and accessories work in this fashion. An oil company in a dominant position insists on its tenants and other nations tied by contract dealing with certain other suppliers such as a specified tyre company or battery manufacturer. In return for access to this section of the retail market, the tyre company pays the oil company a commission on sales made at the company’s one brand service station. The simple fact is that the commission must either be taken out of the retailer’s profit, loaded against the consumer’s price, or perhaps a little of both. The organisation in Western Australia apparently speaks for some 1,200 motor traders. It voices their concern and opposition in the most stringent terms. After outlining its reasons, and in particular referring to reports which it had given to the Government in respect of similar T.B.A. investigations by committees of inquiry in Canada, Western Australiaand, of course, in relation to the antitrust laws in the United States - the organization cites the committee of inquiry into solo one brand petrol marketing in the United Kingdom. After in every case citing adverse recommendations against the continuance of this kind of retailing the Automobile Chamber of Commerce say -
For this reason we respectfully but urgently ask you to review the matter of this proposed amendment as it appears this legislation from its original concept is gradually but surely being whittled away to the stage where rather than preventing restrictive trade practices it will impede the progress of small business units in the community without making any attempt to control big business in its individual or collective capacity.
When asked a question by my colleague, the honorable member for Newcastle (Mr. Jones), the Attorney-General suggested that tyres might not be covered. But I suggest most emphatically that tyres would be covered because, in the particular amendment - sub-clause (2b.) paragraph (a) - specific reference is made to a grantee being required to acquire from the owner, or if the owner is a corporation, from a related corporation. The essence of this form of trading is for a petrol company not merely to build its own retail service station and appoint a reseller to sell its brand of petrol, but also to enter into very definite arrangements with tyre and battery manufacturers and manufacturers of motor accessories. The relationships are too well known for me to labour them. Honorable members are aware of the particular groupings of these companies. It might be said that every major petrol company in Australia today is associated with a tyre manufacturer and also with a manufacturer of accessories, and so on right down the line. This practice is being perpetuated by this amendment.
The same can be said in relation to breweries. Anyone who is familiar with the security documents which are required in any tied house agreement between the lessee of a brewery hotel in New South Wales and a brewery company will be aware that it is necessary for the lessee to do everything short of mortgaging his soul or even his prospect of salvation. First of all, there is a mortgage of the leasehold. Then there is a bill of sale over the furniture, and a promissory note payable on demand for the amount of the lien.
There is also a specific tying agreement under which not only is the lessee bound to purchase the beer and other products of the brewery company, but also to purchase such goods as mineral waters, cigarettes and a number of other items.
– And spirits.
– And also spirits. That is another example of full line enforcement, one of the practices referred to at an earlier stage of this debate.
I refer now to an even more serious loophole; that is paragraph (b). As I read it, while members of, say, companies A, B, C and D cannot openly agree amongst themselves to impose this type of arrangement on a person by giving credit to one of their retailers, they can do so by a covert agreement specifically designed to perpetuate vertical resale maintenance. It would seem that any manufacturer who gave credit to his retail outlet could in perpetuity, or for so long as credit is given, continue that practice with complete immunity as far as other sections of this Act are concerned.
To take it even further, I refer to onebrand petrol stations. It is possible, within the limits of retail licences obtainable in the various States, to multiply the types of goods which might be sold. The arrangements might not be limited merely to petrol, tyres, batteries and accessories but could be extended to cover sporting goods, photographic materials and so on. Honorable members can see, by using their imagination, that there is no limit to the type of goods which might be drawn into such arrangements. I will reserve my comments on the granting of leases to a later stage of the discussion.
– I would like to join with the honorable member for Cunningham (Mr. Connor) in expressing some disappointment at the inclusion of this clause in the rewritten Bill. The honorable member for Cunningham drew attention to such matters as one brand petrol stations and the ownership of hotels by breweries. I can accept as a matter of practical logic that if a brewery is allowed to own a number of hotels it is rather difficult to expect those hotels to sell any other product than the product that the brewery makes. I can accept as a matter of practical logic also that if petrol refineries are allowed to own distributing points it would be rather odd for those distribution points to supply other than the product that the refining company produces. What a lot of people hoped would be done by the legislation is that this nexus between manufacture and distribution would be broken. The inclusion of this clause in the Bill seems to imply that the Government has thrown its hands up in despair about the prospect of breaking such a connection. I would like the AttorneyGeneral to indicate the view of the Government on this point.
I understand that the Licensing Court in Victoria now frowns on the idea that those who manufacture beer should also own hotels.
– No. If I might put the record straight - the view of the Licensing Court is not that breweries should not own hotels but that they should not be the licensees. That is a different thing.
– The licence flows from the ownership of the property. No person can build a petrol station anywhere he likes. He has to persuade some local government authority that a particular corner should be removed from residential occupancy by half a dozen houses and turned into a petrol station. Once a local government body has decided to do that, that is not the end of it. A limited number of channels of distribution are available. The tendency is for one particular company to get hold of or monopolise a particular channel of distribution. The same situation applies with respect to hotels. A person cannot start a hotel anywhere he likes. A licence is issued which generally attaches to a particular site in a particular place. In my view, the one cannot be divorced from the other. I suggest that what can be done is to break the link between the brewery and the hotel; between the person who refines the petrol and the person who distributes it. I believe that this nexus is not permitted under American law. American law regards the person who manufactures a product as not being the person who ought to distribute it. I think this argument can be used against the “ tied house “ system. A brewery ought not to own hotels.
– What if a brewery cannot find someone to take over a hotel?
– It is all right to raise that sort of argument. I would not suggest that this practice ought to be outlawed. But it ought to be made examinable at least. The Government is not even doing that. It seems to me that in this clause the Government is shutting the door on doing anything about what in the public mind are obnoxious practices.
As my friend from Cunningham has suggested, it does not stop with the products 1 have referred to. Many of the breweries have links with wine and spirit manufacturers. Unless a hotel takes certain wines and spirits it cannot obtain beer from the brewery. The same situation exists with petrol stations, which seem to have attached to them certain brands of tyres, batteries and accessories. The honorable member for Cunningham referred to these as the T.B.A. - not to be confused with the T.A.B. in Victoria.
– That does not come within the Bill.
– No, and it seems to us that the other matter does not come within the Bill either. We certainly would be interested to hear the comments of the Attorney-General on this point. I would like to know whether the Government has any opinion about the suggestion that those who refine petrol should have nothing to do with the distribution of it or that the manufacturers of beer should have nothing to do with the properties from which that beer is sold. In my view, this is a dangerous link because a brewery, with a capitalisation of several millions of pounds, must be in a much more dominant position with regard to its tied channels than any single occupier of one of those channels can be.
We all know what has happened to many of the so-called one brand service stations. A tyranny has been exercised over the poor little battler who is making his own life on his own corner. He finds that, if he falls foul in any way of the very large enterprise that refines the petrol, his lot is not a very happy one. I would have thought that some honorable members opposite, who in this debate have been expressing ideas on behalf of some of the little battlers in the community, would be a little more alarmed about the implications that I can see in this clause. I would sooner see the Bill without this clause. I would like the Attorney-General to tell us why he intruded the clause. Has he any views on whether these vertical combinations between manufacturers and distributors of their products should be broken? In my view, they ought to be broken. I hope that he will express a view on that matter.
.- I do not share the concern expressed by the honorable member for Cunningham (Mr. Connor) and the honorable member for Melbourne Ports (Mr. Crean). I would have thought it was fairly well established now, on common equitable principles, that a person who advances money under a mortgage arrangement is entitled to ensure that his advances are adequately protected. Whilst it is perfectly true that a person advancing money cannot clog the equity of redemption, he is entitled to adequate protection. That certainly applies to hotels. We have about ISO years of established precedent to disturb on this issue. A person who advances money under a brewery arrangement, for instance, is entitled to ensure that a particular product is sold. There is nothing very revolutionary about that.
Some of the other points which were mentioned by the honorable members for Cunningham and Melbourne Ports and which concerned the justification of some of the side issues, such as in respect of wines and spirits, become a little attenuated. I understand their concern. There could be scope for action in that respect. Nevertheless, I am sure that both of them will concede that a person who advances money under a mortgage arrangement is entitled to be assured that that money is adequately protected.
.- Notwithstanding the explanation that the Attorney-General tendered to me prior to the suspension of the sitting, I am concerned that this Bill, and particularly this clause, does not protect the people whom I am endeavouring to protect. I am a little astounded that, in view of the attitude of some honorable members opposite towards this Bill, they can support it on this point. I am afraid that the little man, whom I desire to protect, will not be protected adequately. In fact, as a result of the repeal of the Australian Industries Preservation Act, he will have no protection whatsoever. It has been proven in the courts that under that Act a person whose business has been destroyed as a result of the restrictive trade practices of a monopoly has some redress through the courts. I understand that one person has been compensated adequately for loss of income. I believe that another person is in the process of taking action for compensation. I hope that he also will be compensated adequately for his loss of income as a result of the restrictive trade practices in which the tyre monopolies engage.
What I am concerned about is that under this provision of the Bill the motor industry monopolies could conduct their activities in Australia in the same way as they do in the United States. I have here several pages from a trade journal in which mention is made of some of the things about which I am concerned. It says that the petrol companies operating in Australia are the same as those operating in America, as are tyre retreading companies, battery manufacturers and distributors and the manufacturers of motor car accessories. The United States Federal Trade Commission has had reason to take action to direct certain companies to desist from their present practice of insisting that the people who sell their petrol, for example, shall also sell a particular brand of tyres, use a particular brand of rubber in retreading tyres and sell a particular brand of batteries and motor car accessories.
I want the Attorney-General to assure me that this Bill will adequately protect the people in Australia to whom I have referred after -the Australian Industries Preservation Act has been repealed. This matter is important to the small man. On one occasion when the Attorney-General was a back bencher he said that he could not see me for tyres. Possibly the tyres are now coming home to roost, so to speak, because my statements were proved to be correct. I had raised this question continually for many months in an endeavour to get justice for a number of small men some of whom were compelled to leave their businesses because of the pressure that was being applied to them by the tyre companies.
Many people in my electorate, as well as the Newcastle Chamber of Commerce and the Wallsend Chamber of Commerce, object to these practices. But in a city the size of Newcastle, the Newcastle and Wallsend Chambers do not represent the major and substantial business enterprises. Although a number of large commercial enterprises are interested in the Chambers, in the main their membership comprises people conducting reasonably small undertakings not comparable in any way with some of those in the capital cities. The Wallsend Chamber of Commerce, whose membership comprises small business men, forwarded a very strong protest to the secretary of the Newcastle Chamber objecting to what was being done. The Shortland County Council, the second largest electricity reticulating authority in New South Wales, found that because of the restrictive trade practices being indulged in by tyre manufacturers, and the pressure applied by the manufacturers, it was paying excessive amounts for its tyres and retreads. It is important that the Attorney-General give me some assurance today that the people to whom I have referred will be adequately protected.
On another occasion I had reason to refer to what was going on in relation to retail sales of wine. If the retailers did not toe the line by dealing in a particular wine and were not members of a particular distributors association and did not sell wine at the price laid down by the wholesalers, they were subjected to a special kind of pressure. Although supplies were made available to them, they had to buy the wine from the wholesaler at the normal retail price that John Citizen has to pay for it. No one can carry on a business in which there is no profit margin. That was one of the ways adopted by the wholesalers to force the retailers to sell the product at the price the wholesalers laid down. One businessman in my electorate got round this tactic because he had a friend in Sydney in the same line of business who was able to buy sufficient wine to meet his own requirements and those of my constituent. However, the man living in the country had to bear the cost of transporting the wine from Sydney to Newcastle. At the same time, he placed his friend’s business in jeopardy because it was an offence in the eyes of the wine distributors to sell wine to a retailer who had earned their displeasure.
I ask the Attorney-General to explain this clause very clearly. I hope that if it does not protect the people whom I am trying to protect he will withdraw it, amend it either now or when the Bill is dealt with by the Senate, or, if necessary, introduce an amending measure later to ensure that these people will be adequately protected. I believe that they are entitled to protection. The motor trade journal that I have mentioned shows that in the United States of America concerns that are trading in Australia are doing all the things that I am afraid they will continue to do in this country and thereby put people out of business.
– Mr. Chairman, I want to say something about a restrictive practice that has not yet been mentioned. This relates to automotive spare parts, the distribution of which at present is controlled by the Wholesale Automotive Supplies and Parts Association, which is composed of 100 manufacturers and several hundred retailers. There is no written agreement but there is a tacit understanding that those who join the Association, which is known shortly as W.A.S.P.A., will be blackballed for periods ranging from several months to permanently immediately they sell beneath the agreed prices. No manufacturer is permitted to supply any more automotive parts to a retail house that is blackballed. Very few distributors are prepared to risk the displeasure of the Association, because they know that a manufacturer cannot supply an independent distributor but must supply to members of the Association. This means that a distributor selling Repco, Champion, Bosch or other products must be prepared to have his supplies cut off immediately he contravenes the unwritten law that the prices laid down by this Association must be adhered to.
The point about which I am particularly concerned in all this, Sir, is that excessive charges are imposed on the motoring community by tied houses trading in petrol, motor tyres and spare parts. These excessive charges are causing motorists to think twice about keeping their cars on the roads.
So the number of cars going off the roads is causing great concern to the car manufacturers. One of the main reasons for cars going off the roads is the cost of maintaining vehicles. This is becoming excessive and is getting far beyond a level that the ordinary person can afford. Insurance premiums have risen to astronomical heights. Greatly excessive prices are charged for ordinary spare parts. Because of restrictive practices, petrol, tyres and everything else that a motorist needs are far dearer than they ought to be. The car manufacturers themselves are partially to blame for the fact that people are not buying new cars. They are the manufacturers of spare parts, the cost of which, as I have stated, is excessive. General Motors-Holden’s Pty. Ltd., for example, manufacture most of the spare parts for Holden vehicles. This manufacturer is allowing the practices that I have described to be carried on and appears to be doing nothing at all to stop them.
I shall conclude by referring to some criticism that has been made by honorable members opposite about the use of the term “public interest” because the effectiveness of one clause under discussion will be determined by the Tribunal discovering whether or not the restrictions or practices stated in the clause offend against public interest. I think that there has been a lot of ill-informed criticism by honorable members opposite on the use of the term public interest.
– Not by members of the Country Party.
– The members of the Country Party do not appear to be taking any interest in the debate at all. None of them has participated in it. One would think that they were listening-
– Order! I ask the honorable member to direct his remarks to the clause under discussion.
– Public interest is a very proper term to use. How on earth, as the Attorney-General said before, can the Parliament lay down in precise terms what is or what is not in the public interest? We would be here day and night on every day of the week dealing with hundreds of little cases that somebody might bring up. They would not be brought up by the person who, perhaps, was interested in protecting the big people. I can imagine the type of case we would have, and how many times we would be altering the law. The best way is to let the Tribunal make ad hoc decisions, if you like; that is, make decisions that change from day to day. I do not mind the definition of the term “ public interest “ changing.
– That is in clause 50, but we are dealing with clause 39.
– I know, but if we are going to intelligently discuss clause 39, we have to know what is in clause 50. I am trying to explain that there is nothing wrong in the sense that clause 39, insofar as it relates to the power to determine what is right and what is wrong, refers to public interest, which time and time again has been condemned by honorable members opposite. The Matrimonial Causes Act uses the term public interest. The judges have to determine what the public interest is in that context, the term “public interest “ appears in the Commonwealth Conciliation and Arbitration Act. Words like “ oppression “ and “ unjust “ are equally abstract terms which appear in other laws. They have been always properly interpreted, built up, established and defined by case law over the period of years of judicious examination of them. That is all I have to say. It is no wonder that the motoring public are giving away their motor cars. With the excessive charges placed upon them for petrol, tyres, spare parts and insurance, brought about by these repressive and restrictive trade practices and agreements, it is little wonder that they have been driven off th<– road.
– I do not want to detain the House, but several matters have been mentioned on which I think I should make some statement. Earlier this week I had an opportunity, which I enjoyed, of speaking with a senior executive of the organisation of Automobile Chambers of Commerce. He was a man whom I had met at an earlier point of time in relation to this Bill. He had put certain matters up to me. I had an opportunity to discuss this matter with him and to learn that he was a man of some responsibility. He asked to see me last
Monday on this matter because he had seen a newspaper report in relation to this amendment, which he said somewhat surprised him, although he had not had an opportunity at that point of time of seeing the actual wording of it.
I had an opportunity to discuss this matter with him, and what I told him was that the purpose of this amendment is to enable the owner of the freehold to require the licensee or the lesee to sell from that freehold the goods which the owner of the freehold produces.
– Produces - not distributes.
– Or distributes. What has been put here is in relation to T.B.A. arrangements, those letters standing for tyres, batteries and accessories. I want to emphasise, as I have earlier today, that I do not want to prejudge anything. I do not want there to be any thought that there is a prejudging because this must be in the hands of the Tribunal or the court of review. But as I read and interpret the legislation, a T.B.A. arrangement would not fall within the exempted provisions.
– What would the Minister call a related corporation?
– If the honorable member looks at the interpretive provisions of clause 92 he will find that a related corporation is given the same meaning as in the Companies Act. A related corporation is one in which there is a 50 per cent, shareholding. If there is a 50 per cent, shareholding then it is a related corporation. But I do not think this is a situation which would ever be the reality in relation to the area that we are talking about. The Committee will notice that in the amendment the words used are - unless the term or condition is imposed . . . in pursuance of an agreement . . .
I do not want to go any further because this is a matter for interpretation. However, I think it makes it pretty clear that the purpose of this amendment is that those things which the owner of the freehold distributes, he can require to be distributed through his freehold when he leases it. But the other things in relation to a third person’s product are covered by the provision regarding practices. In paragraph 36 (1.) (b) the reference is to forcing another person’s product. I think those remarks clear up the situation.
.- In reply to the Attorney-General I should like to quote the balance qf the letter of 25th November from the Western Australian Automobile Chamber of Commerce. At page 2 of that letter the comment is made - if the Government is sincere that the Trade Practices Act is to be used as a medium for preventing this type of practice-
This is the T.B.A. agreement - then an example of how the proposed alteration would affect the situation in the motor trade would probably serve as an example as to how innocuous the Act would become as far as preventing full line forcing in all realms of industry.
– I apologise for interrupting, but may I say that full line forcing is a set of words which has no precise meaning? Those words can mean the full line forcing by an individual of his own product. Some people use the term in the sense of full line forcing of their own products and some other person’s products. The honorable member will need to make clear what he means by the expression.
– I know that the term has quite a number of applications and that there are a number of different ways in which the words can be used. But the point is this, and I continue from the same letter -
In explanation we would point out that if a person (in our industry, an oil company) provides money or credit-
This is something quite distinct from the question of leasing - then they evidently exempt themselves from their exclusive dealing arrangement being classed as a restrictive trade practice. The situation of course is that every petrol retailer in the Commonwealth receives credit from one or another of the oil companies. This is standard commercial practice in all fields of industry with the account being settled each month or so and new credit immediately being extended. Surely on this premise that credit has been extended the oil industry in this case is not going to be permitted to carry on and extend a restrictive trade practice which not only adversely affects the business freedom and operation of the retailer but which directly loads the consumer with additional cost.
This legislation does not deal merely with the existing T.B.A. agreements in association with premises owned by petrol companies; it goes further in paragraph (b) and deals with such matters as the grant of credit. The honorable member for Moreton (Mr. Killen) mentioned a mortgage. A mortgage is related, of course, to some measure of security over freehold or chattel goods with equity of redemption remaining in the mortgagee, but in this particular case any manufacturer who chooses to grant credit can then impose certain restrictions.
That is quite an innovation. The AttorneyGeneral mentioned that the owner of a freehold could dispose of his property by lease and create certain conditions. It could go further than that. An ingenious manufacturer or member of a cartel could himself obtain from the owner of a store a lease, because it is provided in paragraph 6 that “ lease “ includes a sub-lease and that “ owner “ includes the holder of a lease. In other words, the owner can be in fact a lessee and that lessee could in turn sublease to someone else. So if any manufacturer wants to tie up a retailer who owns a store all he has to do is to say to that retailer: “ Give me a lease of just a small portion of your premises “ - it could be a part where a set of shelves or a counter is installed - “ I will then sub-lease that to one of your employees. He can sell these goods that I am producing, which are to be sold at a fixed price, and he can make his own arrangements with you.” This is capable of infinite application. In other words, this amendment provides the whole pattern for evasion of this legislation on the widest possible scale.
I come now to what the Attorney-General said on the question of the interpretation of the passage: “ term or condition being imposed or to be imposed in pursuance of an agreement with a person carrying on the business other than the person on whom the term or condition is or is to be imposed “. Obviously any person who is in the position of vertically supplying goods to a retailer could avail himself of that provision. He could go further, Where there is a cartel, where there is collective retail price enforcement, any one member of the cartel, after secret collusion with his comembers, could then enter into an arrangement of this type, and there does not have to be anything in writing whatever. It has infinite application. I say it is a masterpiece of evasion.
Amendment agreed to.
– I move -
At the end of the clause add the following subclauses: - “ (5.) In relation to monopolization, the reference in sub-section (1.) of this section to an Act does not include a reference to an Act relating to patents, trade marks, designs or copyrights. “ (6.) In sub-section (2b.) of this section - lease ‘ includes a sub-lease; owner ‘ includes the holder of a lease.”.
The first of the proposed sub-clauses is a necessary drafting amendment. The second merely seeks to make clear the definitions of “ lease “ and “ owner “. I am sure these proposals will not occupy the time of the Committee.
.- There is one matter on which I should like the Attorney-General (Mr. Snedden) to give us some explanation. Clause 35 sets out what are examinable agreements. Paragraph (f) of clause 38, excludes from this field agreements which, broadly speaking, relate to a licence in respect of a patent or the assignment of a patent. I can understand why that would be because we know that a patent is a grant of the exclusive right to make or vend the product of the invention for a period of 16 years. It is a kind of monopoly. It is granted by the Government in consideration of the inventor’s disclosing his invention in his specification. On the one hand, he discloses his invention; on the other, he gets a monopoly. There is a public interest behind this - to encourage invention and to encourage research - but the Patents Act itself provides for those cases in which a patent is not made properly available to the public.
Section 108, in Part XII, provides that after a patent has been in operation for three years, anyone may present a petition to the Commissioner of Patents, alleging that the reasonable requirements of the public with respect to the patented invention have not been satisfied, and praying for the grant of a compulsory licence. Two years after that, if still the reasonable requirements of the public are not being met there may be a petition to revoke the patent. That is provided in section 109. Section 110(1.)(b) provides that the reasonable requirements of the public shall be deemed not to have been satisfied - if a trade or industry in Australia is unfairly prejudiced by the conditions attached by the patentee, whether before or after the commencement of this Act, to the purchase, hire or use of the patented article, or to the using or working of the patented process.
The Commissioner of Patents is the person who normally decides whether or not the conditions being attached by the holder of a patent are fair in the interests of the public.
I can understand, therefore, why agreements relating to patents are exempted by clause 38, but if we insert sub-clause (5.), as proposed, in clause 39, we have a different situation in the case of a patent holder who hopes to control or supply not less than 30 per cent, of the market. What I want to put to the AttorneyGeneral is this: If the holder of such a patent is liable to have the conditions on which he is licensing, or the fees that he is setting, scrutinised by the Tribunal and also by the Commissioner of Patents, we may get conflicting decisions. This is recognised in the English legislation, in which control of undesirable use of patents was achieved in relation to monopolies and restrictive practices by an amendment to the Patents Act. If the Monopolies Commission makes reports involving the use of patents, those reports have to go before the House of Commons, which may pass a resolution as to whether they are acted upon or not. If the House of Commons passed a resolution, this would be passed to the Controller of Patents. What I am not entirely clear on is that in the case of our Patents Act this will now be removed from the jurisdiction of the Commissioner of Patents and vested solely in the Tribunal, in that one case in which the owner of a patent is in a dominant position because he has 30 per cent, or more of the market. Sub-clause (5.) provides that sub-clause (1.), which is extremely limited in its exemption, will not apply. It exempts only any act or thing that is, or is of a kind, specifically authorised or approved by, or by regulations under, an Act.
.- The right of the Commissioner of Patents to look at the patent is to be found in the Patents Act. If an application is made to the Commissioner and it goes to a court, the court has to be concerned with whether the reasonable requirements of the public with respect to the patented invention have not been satisfied. That is an entirely different question to whether or not patent rights should be taken into account in respect of monopolisation. I understand why the honorable gentleman puts it that -
– I am thinking of section 110 (1.) (b) - if trade or industry is unfairly prejudiced.
– Yes, but what has been considered in the group of sections 108 to 110 and, particularly in section 110, is whether or not trade or industry is unfettered and whether or not an item that has been patented is not able to get out to the public. That is the whole concept. If a person holds a patent he may use it to prevent the sale of another article that would be competitive. This provision enables us to see whether the right of distribution should be taken from the patent holder. I do not see any conflict at all. The honorable member for Parramatta claims that there is a conflict. This is a matter to which I specifically directed my attention and to which officers of the Department directed their attention, and we are satisfied that there is no conflict We are reinforced in this view by the fact that the United Kingdom does not exempt patents from monopolisation provisions.
– But action can be taken there through the Board of Trade to control patents.
– The honorable member is thinking of monopolies; we are talking about monopolisation. There is a difference.
– That is their way of doing it.
– There is a big difference. I am quite satisfied that the way we have dealt with it is adequate. After all, I suppose it is a matter of opinion. I do not share the honorable gentleman’s opinion.
.- The Attorney-General may think there is no conflict, but the great difficult is that the patent holders believe there is a conflict.
– I think the honorable member is going to talk about a different point.
– No, I am not. We had some words about this last night. As this matter has been raised by the honorable member for Parramatta (Mr. Bowen) I want to stress that there is implied in this provision a restriction. There will be a tendency not to want to do the research work which results in patents. A person will not be able to get more than one third of the market, because he will be limited through the monopolisation provisions. This is a real fear of people with patents.
– I should point out to the honorable member that if a person has more than one third of the market it becomes an examinable practice. The issues to be determined by the Tribunal under the public interest criteria require it to take into account and weigh detriments on the one hand against tendencies to benefit on the other. Some of the factors included in the tendency to benefit are the rights of proprietors. The honorable member may see them in clause SO - the better utilisation of resources and a whole range of other features. There will be no obstacle to inventiveness or to research activities. The whole point of this is that the Tribunal cannot reasonably come to the conclusion that a person should not have a patent unless what he is doing with his patent is to form a patent pool. There are a couple of well known ways in which patents have been used. The European Economic Community has a provision dealing with this and with monopolies, as has the United Kingdom. Indeed, there is no country that I know of which does not have such a provision. No-one would suggest that inventiveness in the United Kingdom, the United States of America, European countries, Japan or Italy has in any way been slowed down.
– What has been said does not really give the Committee an explanation. The AttorneyGeneral (Mr. Snedden) has given us his understanding that the Tribunal would do certain things, but we do not know what it would do. It might take an entirely different view from that which we are dealing with now. I am speaking of the intention of people to come here and invest their money and give us the benefit of the research they have done and this will be stifled by this legislation. We have had only a very quick explanation from the Attorney-General. I am not a patents expert, but tetracycline, for example, was selling for £78 a ton, but the patent has just run out and the price is now down to £28 a ton. If the Tribunal examined a position like that where a company had a monopoly and a patent and was getting such a high price for its product, it could easily take the view that the charge was too high. It might regard that as an excessive charge and a restrictive practice. After all, these things are distributed by the patent holders and the Tribunal might take the view that the price was excessive, whereas in fact it is essential for new products to come forward and replace these things and for people to get used to them.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 40 and postponed clause 34 - by leave - taken together.
Clause 40. (1.) For the purposes of this Act, the Commissioner shall cause to be kept a register to be known as the Register of Trade Agreements. (2.) Subject to this Act and the regulations, the Register shall be kept in such form and manner as the Commissioner directs.
Postponed clause 34. (1.) This section applies to every person who is of has been the Commissioner or a member of the staff assisting the Commissioner. (2.) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except in the performance of a duty under or in connexion with this Act or a complementary State law -
Penalty: Five hundred pounds or imprisonment for three months.
.- by leave - I move -
At the end of clause 40 add the following sub-clauses: - “ (3.) The regulations shall provide for the maintenance of a special section of the Register, and for the filing in that section of such particulars as the Commissioner may direct, being -
At the end of clause 34 add the following sub-clause: - “ (6.) The references in this section to the Register shall be read as references to the special section of the Register established in accordance with section 40 of this Act, and nothing in this section applies in relation to information contained in the portion of the Register other than the special section of the Register.”.
When publicity was first given in the Press to the terms of the legislation as outlined by the Attorney-General (Mr. Snedden) the immediate reaction on the part of every section of the Press of Australia, and of all academics who have any legal experience, was criticism of the secrecy of the register of examinable agreements. That criticism has continued up to the point where, in a subsequent clause of this measure, some concession is being made. As usual, we have to refer to the general retreat from the terms and the spirit of the Barwick proposals. I refer to page 5 of the speech of the Minister for Shipping and Transport (Mr. Freeth). He said -
Documents placed on the register are to be open to inspection only by the leave of the Commission.
That provision at least went part of the way but for reasons best known to itself the Government chose originally to abandon the Barwick proposals and to make the register a completely secret register. One of the main reasons advanced for the principle of registration has been that in such a vast and complex field as restrictive trade practices it would be impossible for any Government to have available to it the trained staff necessary to locate, identify and list restrictive agreements. The Government felt that by imposing an obligation to register it would in fact get a good deal of the detective work done for it. Our amendments follow the precedent established by the English Restrictive Trade Practices Act, from which this Government has notably departed. In text and in principle a considerable part of the legislation follows the English Act but in this regard there is a complete departure from the English legislation.
Our amendments are drawn from section 11 of the English Restrictive Trade Practices Act of 1956, and in particular from sub-sections (3.), (4.), (5.) and (7.). There, with the utmost clarity and in accordance with good English democratic and legal traditions, maximum publicity is given where there is any possibility of wrong being done. In the English Act proper protection also is given. In the case of the English Act there is a separate section of the register. The English Act lays down that the register as a whole should be published but it says that in certain cases a special section of the register shall be set aside and only particulars will be recorded which contain information the publication of which would be in the opinion of the Board of Trade contrary to the public interest, or particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of minerals or other deposits, or as to any other similar matter, being information the publication of which in the opinion of the Board would substantially damage the legitimate business interests of any person.
What clearer and more reasonable provision can there be than that? I have yet to hear from any Government supporter a single argument in favour of secrecy. It is true that in a later amendment the Government will go part of the way, but it is not prepared even at that stage to allow access to the register. It is prepared only to allow access to documents in the hands of the Tribunal itself. Even this access is to be only by consent. An inspection can be made on payment of a fee and a certified extract obtained, which is admissible in evidence. It seems to me that the Government, in the words of some critics, is making a rather belated entry into the 20th century. The Government is acting in a timid, diffident and reluctant way. The whole spirit behind this legislation is what might be termed one of complete empiricism. The Government is not prepared to admit anything or to adopt the practices that have been proved. It is not prepared to adopt principles that have been well established in any other country.
Here we have a definite precedent on the part of the United Kingdom where, for many years, a register has been in operation and where there has been proper access to it. Those privileges of access have not been in any way abused. What better way can there be of giving proper publicity and meaning to the additional information which this Government seeks than by having proper public access to a register of this kind? If a register is available for inspection, members of the public adversely affected by an agreement in the register will be in a position to give further information. As a matter of fact, one of the fundamental defects of this legislation is the limited nature of the powers given to the Commissioner for Trade Practices to obtain information. In England, the occupant of this position relies very heavily on public information, upon publicity and upon information obtained from trade journals for the necessary data on which to act. There is not the slightest doubt that the Commissioner in Australia would be beseiged by a whole horde of indignant people who would be prepared to give additional information to him and so expedite the proceedings of the tribunal. The Commissioner is a man of extreme power. We might say that he is acting in the best Star Chamber traditions. He has absolute, unfettered discretion. He is under no control beyond a gentle stimulus from the Attorney-General, who, at the behest of some individual, may choose to go along and say: “ I want you to examine a practice or an agreement “. Beyond that, the Commissioner operates in complete secrecy. This is contrary to every democratic and legal principle and it is contrary to the public interest that a register that is utterly secret should be perpetuated in this fashion.
– The Government opposes the amendments. The issues were made abundantly clear in the debate at the second reading stage and I think there is little point’ in traversing them further.
– 1 support my colleague in this matter. We take the view that it is in the public interest to have the various registers available for all who want to look at them. I do not want to labour the point very much. We take the opposite view to that taken by the Attorney-General. We believe that the register ought to be a public and an open register. Although some other countries have secret registers or some modifications of this practice, we think that the register in Australia should be openly available for the community or for interested persons to scrutinise. A person can go to the various registry offices in the States now and for a fee search in company records, within limits. We think a similar practice should apply with respect to this register.
I think the Attorney-General at some stage produced documents submitted for registration in terms of the British legislation. He seemed to imply that after all this was a rather musty set of documents and there seemed to be no legal provision stating what documents had to be registered or the form in which they should be registered. Nevertheless, if the register is freely available for inspection, a great service will be done in bringing undesirable practices to light. In our view, for the most part, these practices ought not to be indulged in and we do not believe that the law should in any way assist in keeping secret what in fact ought to be open and freely available.
Clauses agreed to.
Clause 41 (Agreements subject to registration).
.- Clause 41 deals with agreements subject to registration. I submit that this is the cornerstone of the whole of Part V in relation to agreements. It is the provision for the compulsory registration of certain horizontal agreements. I invite the Committee to listen to my submission for the removal of this requirement for the registration of agreements, because I believe it is unnecessary for the effective operation of the Bill. Registration is costly and it is wasteful, not only to industry but also to all the taxpayers of our community. It is not in the public interest. Other countries which control restrictive trade practices have deleted provisions like this from their statutes, and Australia should be saved the expense involved, in money and manpower, in setting up this kind of registry and requiring these registrations.
I want to remind the Attorney-General of what he said in his second reading speech. He said at one stage -
The Government’s purpose has at all times been to produce legislation that will be effective without constituting any unnecessary interference to business.
I claim that this a very great unnecessary interference to business. In fact it will put into motion the process of taking away from businessmen large areas of normal business decisions, because they will have a fear of something that they do not quite understand and they will know that they may be fined anything up to £1,000. In some respects this goes even further than the 1962 proposals, and in any case those went too far.
I have said before that a major proportion of Australia’s twentieth century business, if I may describe it as such, must be highly capitalised. It has to be progressive in technology and science particularly if it is to increase its productivity and get its share of world trade. We must consider the handicaps that we are placing on business by this legislation. The Attorney-General should know that business cannot survive iri a free enterprise economy if it loses its ability to make major decisions quickly without fear of infringing Part V of this Bill. In fact business must have a feeling of confidence if it is to succeed. Does this register engender such confidence? Does Part V of the Bill engender it? I submit that it does not. Part V handicaps industry inasmuch as it cannot be free to operate in a manner similar to that of, for instance, rural industries that are governed by marketing boards which are controlled by the producers. In this case there is control by the Commissioner through this registry. A compulsory registry of this description takes away the confidence, the incentive, the decision making capacity of industry, and also the hope of real gain in a highly competitive world. This provision will not only restrict private enterprise severely but also erect the hazards represented by all the things I have mentioned. The burden cast on industry will be a continuing one from the day the registry is set up.
Registration has proved in practice to be cumbersome, unnecessary and ineffective, and if the provision for registration were dropped it would not in the slightest way make this Bill less effective. I want to read to the Committee what the Minister of Industries and Commerce, the Minister administering the Trade Practices Act in New Zealand, had to say on this very question. I remind the Committee that the New Zealand Act came into operation in 1948, and that in 1961 the Commissioner for Industries and Commerce decided that, after three years of experience of registration of this kind, it was advisable to withdraw from the Act the registration provisions. I refer now to volume 329 of the New Zealand parliamentary debates. The Honorable J. A. R. Marshall, Minister for Industries and Commerce, is reported as saying in 1961 -
This Bill makes two substantial amendments to the law.
He was referring to the Trade Practices Amendment Bill 1961. He continued -
The first is to remove the requirement for the registration of all agreements relating to trade practices, lt has been felt, and indeed found in practice, that this requirement that every agreement, whether it is written or oral, must be registered, either in the form of the agreement being deposited, or as a memorandum relating to the agreement being deposited with the Department, is cumbersome and involves the commercial community in a great deal of unnecessary work and the Department in a great accumulation of agreements, many of which never require to be examined and have no relationship to restrictive trade practices. It is proposed to remove that requirement from the law.
This is a situation that has been experienced in New Zealand. I suggest that the Committee would be wise in voting against all the clauses that are contained in Part V of the Bill, lt is difficult to conceive of more convincing proof of the necessity to remove clause 41 than the practical experience that New Zealand has had.
To drop Part V would not affect the Bill very much. The Commissioner would still be able to act even though there was no register. He would be able to act on a complaint made by a single individual who said that he wanted an agreement to be examined, or he would be able to act of his own volition. Indeed, a complaint that was lodged with the Department of Trade and Industries could be taken to him to be examined. The alternative to removing the provisions of Part V is to set up this cumbersome piece of machinery that is proposed in clause 41. I submit that this provision will cause a great deal of trouble to industry. It will mean that every business in the community will have to go through all its agreements, whether they are in Victoria, New South Wales or the other States, to see whether they are examinable. Then the businessman will have to call his staff together to find out whether any of them over a cup of tea with one of his customers has entered into an oral agreement.
– That is a stupid argument.
– I know it is stupid, but that is what is meant by “ an implied agreement “. An implied agreement is an oral agreement made between two parties. It could be an examinable practice. Before he enters into an agreement, every prudent businessman will have to consult a lawyer to see whether it is an examinable practice. One can imagine the tremendous amount of expense that this provision will put people to. I propose to vote against it.
Mr. wilson (Sturt) [3.35].- Like the honorable member for Isaacs (Mr. Haworth), i cannot support clauses 41 to 45, which deal with the compulsory registration of certain agreements, firstly because is is quite unnecessary and, secondly, because it places an unnecessary burden upon people who are not carrying on practices that are contrary to the public interest. These provisions compel the registration of agreements whether they are contrary to the public interest or not. There will therefore be thousands - probably hundreds of thousands - of agreements, expressed or implied, which commerce and industry will be called upon to register and which are not in any way contrary to the public interest. As the honorable member for Isaacs told the Committee, the removal of these clauses would not weaken the Bill in any way. The Commissioner under clause 103 has power at any time to call for the production of documents and to call people before him. I do not object to that provision. If there is any challenge at any time, or any suggestion that an agreement is contrary to the public interest, the Commissioner has a duty to call for the production of the document in question. Why make every innocent person who is not conducting his business contrary to the public interest file all kinds of agreements which are not harmful in any way? The New Zealand Government, as the honorable member for Isaacs mentioned, found how foolish it was to insist upon compulsory registration of all agreements whether contrary to the public interest or not, and it abolished the harassing provision of compulsory registration. The Bill as it stands at present will harass the small man - the man whom one would expect the Labour Party to be protecting. But members of the Labour Party sit silent. The big man will not worry about this provision. He has vast resources. He has legal advisers to find ways and means to cope with a provision such as this. But the small man has to register all agreements referred to in this Bill.
Clause 91 contains a definition of an agreement. It defines an agreement as -
An arrangement or understanding, whether formal or informal and whether express or implied . . .
I should like the Attorney-General to tell me what is understood by an implied informal understanding. The AttorneyGeneral made a very eloquent speech in this House and stressed the necessity for certainty. He said that in the Government’s view there ought to be at all times the desire for certainty. You will remember, Sir, that there were loud “Hear, hears” of approval all round the chamber. Of course, there should be certainty. But how can there be any certainty on what is an implied informal understanding? Every business man in Australia will have to think back 50 years and ask himself the ques tion: “Have 1 or my predecessors made any implied informal understanding in writing or verbally over this period?” If such implied informal understandings have been made and they are not registered, the business is up for a fine of up to £1,000. The big man, of course, will be able to go to an experienced barrister or lawyer, hand over his documents and ask: “Which of these have to be registered and which have not be registered? “ But how is the small person, the small storekeeper, to know whether his arrangements are implied informal understandings?
The clause simply defeats the very principle that was so ably laid down by the Attorney-General. One would have thought that in view of New Zealand’s experience, Australia would have followed what New Zealand has done. Let us consider what has happened in the European Economic Community. The European Economic Community made provisions that existing agreements were required to be registered before certain dates under Article 85 of the Treaty of Rome and Regulation No. 17. To the present time, 30,000 agreements have been submitted for registration. The task of filing the agreements is expected to take several years. Even those who have required priority treatment for their agreements, for one reason or another have been unable to get decisions on them.
Thousands and thousands of agreements will require to be registered under this provision. The register will be cluttered up. People will not know whether their agreements are registrable. Legal costs of thousands of pounds will be incurred unnecessarily. Why? Simply because under this provision the Government insists that all agreements referred to in the legislation must be registered. Why cannot the Government simply follow the sensible procedure of leaving it to the Commissioner to call for agreements whenever he wants to examine a practice? What harm is done by that method? He has that power already under section 103. I certainly would not take that power from him.
I hope that honorable members will act on the side of the small people who do not have large sums of money to pay legal costs, by omitting this unnecessary and foolish procedure of forcing everybody who has an agreement of the vague type to which I have referred to go to a lawyer to find out whether it is registrable, and then if necessary to register it.
I again refer to the remarks of the Attorney-General. He said -
But to have certainty, which is most desirable, I believe in the legislation, means that you must have an administrative as distinct from a criminal process.
I entirely agree with that statement. But why did the Attorney-General include the criminal process in the Bill? Why does he say: “You have to register the agreement, and if you do not, you will have to pay a fine of £1,000”? In view of the statement I have quoted, I cannot see why the Attorney-General has included the criminal process in the legislation, rather than the administrative process. The AttorneyGeneral went on to say -
It is the criminal process which leads to the uncertainty because people engaged in trade and commerce act in trade and commerce in such a way and then have to run the risk that at a later point in time they will be prosecuted for an offence and perhaps found guilty when at the time they committed the offence they did not know, . . .
Thousands of people will commit offences under this legislation because they will not know whether their agreements are registrable. How can they know, in view of the extremely vague definition contained in the Bill? These clauses completely mar an otherwise excellent Bill. By making registrable every arrangement or understanding, express or implied, formal or informal, the Government is creating a system of busybodies. Every person engaged in trade, commerce and industry will be forced to explore his affairs for years back to find out whether he has any of the kind of understanding referred to in the Bill. I hope that the AttorneyGeneral will agree to withdraw the compulsory registration provision.
.- The honorable member for Sturt (Mr. Wilson) was good enough in the second reading debate on this measure to indicate broadly the attitude that he has expressed towards clause 41. He agreed to support this legislation only when the teeth had been removed from it. He said that the provision calling for compulsory registration of agreements, express or implied, was one of the most undesirable features of the Bill. Even at this stage the honorable member for Sturt is prepared to reduce still further the effect of this Bill by saying that he will oppose completely the compulsory registration of agreements. I do not remember the honorable member expressing sorrow at the compulsory registration of men to be sent abroad under the conscription proposals of the Government. I make that remark in passing.
Evidently the honorable member splits his ethics on these questions. When it is a matter of registering agreements for huge companies and monopolies which are prepared to exploit the people of this country, the honorable member says that it should be a voluntary process. Can honorable members imagine all these little men at the Adelaide Club, for whom the honorable member for Sturt speaks, gathering together to find out how they can save expense and to discuss what this provision of the Bill will mean to them? Imagine the semi-pensioners, the broken down corner storekeepers and others gathering in the Adelaide Club with the honorable member for Sturt and talking about expressed or implied agreements. Only recently the honorable member was crying about superannuation funds and the small people affected by the legislation in relation to those funds. This is a lot of humbug. The honorable member knows that the people for whom he is speaking today are the huge vested interests of this country whom he and others on his side of the Parliament represent. Every day of the week members on this side of the Parliament rise to speak for the small persons, the small shopkeepers and others. Members opposite, including the honorable member for Sturt, have been as silent as members of the Country Party have been in this debate.
– This is the tenth time the honorable member has said this.
– That does not matter. The honorable member for Sturt has repeated again and again his argument as to what he stands for in this Parliament. He makes out that he is crying for the small shopkeeper
– Order! I suggest that the honorable member for Grayndler come back to the clause under discussion.
– I will speak about the clause. The honorable member for Sturt has stated that he does not want agreements under clause 41 (1.) compulsorily registrable. He has based his case on the fact that the small people in the community will be affected by this provision. But I say that he is speaking for the big people in this country and that, because of this, he deserves to be criticised as strongly as possible on this issue.
I would like to know what small people he was referring to. He did not mention the names of any small people. Where are the small people who, he suggests, will want this avalanche of lawyers and legal advice? He knows as well as I do that those who want this advice are companies or organisations like the Broken Hill Pty. Co. Ltd., I.C.I, and others of that type.
– And the oil companies.
– Yes, the oil companies too. Can honorable members imagine companies like those having implied agreements? Do honorable members think that when these companies propose a monopoly of an industry they reach agreement over a beer, a glass of Scotch or something like that? Of course they do not. These agreements are written into documents as big as the one from which I read out facts about the shipping combines and other companies a few moments ago. There is no reason why every agreement should not be registered and why registration should not be compulsory in accordance with the terms of this Bill. If there is any reason to commend the Attorney-General on this Bill - and judging by the attitude of his supporters he is receiving little commendation from them - it is that this clause shows that he has common sense in regard to the compulsory registration of agreements.
I submit that there should be no support for the attitude of the honorable member for Sturt for the simple reason that it is necessary that these agreements should be registered. If the registration is left on a voluntary basis, it will not be done. I am not at all moved by cries from the honorable member for Sturt about the small people because he is speaking for the members of the Adelaide Club and those huge wealthy interests in the community which are, like the honorable member for Sturt and other honorable members, speaking against this Bill now before the Parliament.
.- I would not expect the honorable member for Grayndler (Mr. Daly) to understand fully the implications of this clause. But I am rather surprised that he should launch such a completely unjustifiable attack upon the honorable member for Sturt (Mr. Wilson). To be lacking in understanding is one thing, but then, on the basis of that ignorance, to launch an attack on the honorable member for Sturt seems to me to be quite beyond the pale. I put it to the honorable gentleman, if I may, that as the definition of “ agreement “ stands at the moment there is the very real possibility that every storekeeper in the Grayndler electorate could be involved when this provision comes into operation. I hope that every storekeeper in the Grayndler electorate, if he can hear over the ether, will be appraised of the fact that his member is not up with the Jones’s so far as an understanding of the Trade Practices Bill is concerned.
I believe that registration should be attacked on a number of counts: First, that it is unnecessary; secondly, that it is uncertain; and thirdly, that it is unfair. As far as it being unnecessary is concerned, we have the New Zealand experience to draw upon. The honorable member for Isaacs (Mr. Haworth) has referred to that. But let me draw the attention of the Committee to some further comments by Mr. Marshall on registration. When the registration procedure was being thrown out in New Zealand, he said - 1 believe that this provision has been ineffective in its operation. . . .
The honorable member for Grayndler does not understand this matter. I put this to him, as a complete utilitarian: Would he be prepared to accept Mr. Marshall’s condemnation of the scheme on the basis that it was ineffective? Then Mr. Marshall said -
It also imposes an unnecessary burden on the commercial community and an administrative burden on the Department.
Does the honorable member for Grayndler deny that? Mr. Marshall also said -
That is, the number of agreements registered - is nothing like the total number of agreements relating to trade practices that are in operation.
In dealing with the number of cases that had been thrown up, Mr. Marshall : said -
Finally, he said -
The honorable member for Grayndler is a practical person. Surely he would be prepared to accept the New Zealand experience of registration.
On the count of uncertainty, the honorable member for Sturt has drawn the attention of the Committee to the definition of “ agreement “ to be found in clause 91 (2.). In my speech in the second reading debate, I put it to the Attorney-General that that is an extremely broad definition. Literally anything could be brought within its ambit. Because of that uncertainty, people are exposed to what amounts to a criminal prosecution. If a person enters into a trade practice that is a registrable agreement and fails to register it, he commits an offence and is exposed to a fine of £1,000. That is a very real consideration. As the honorable member for Sturt said, the definition could cover an informal, implied understanding. It is certainly pretty attenuated.
Dealing with clause 43, I emphasise a point to which I referred earlier in this debate. If a person seeks legal advice on whether or not a practice should be registered and the advice tendered to him is to this effect: “This is not a registrable agreement; our opinion is that it is an examinable practice “, that is no defence at all. If it so happens that that view is not held by the Commissioner or the Tribunal, that is the end of the matter. That is why, possibly next week, I propose to press this point on the Committee: It shall be a defence to a prosecution that a person believed on reasonable grounds that an agreement was not registrable. The person would carry the onus of showing that the reasonable grounds existed.
I put it to the Attorney-General that it is manifestly unreal and unfair to put people in jeopardy by not knowing whether or not an agreement is registrable, because of the extremely wide nature of the definition provision. To expose people to the prospect of paying a £1,000 fine in those circumstances is unreal. I trust that, even if we cannot persuade, charm, cajole or wheedle the Attorney-General into accepting our views this afternoon, by the time this measure goes from this chamber to another place he will be prepared - if I may use the celebrated cry of Parliament House - to have another look at it. I propose to support the view that has been propounded this afternoon by the honorable members for Isaacs and Sturt. Even if we go to the wall on this point, I assure the Attorney-General that next week I will be back, fresh and chirpy, seeking to amend clause 43 to make it a defence to a prosecution that a person believed on reasonable grounds that he was not dealing with a registrable agreement.
.– The tenor of the debate on this amendment confirms the general impression held by the Australian public that there is a well established lobby within the Government’s ranks in opposition to this Bill. The lobby is prepared to fight every inch of the way against a measure which, at its best, is a caricature of the original Barwick proposal. I do not want to castigate the lobby any further on that point but I must say that every argument it has advanced is an excellent argument in opposition to the system of registration and pragmatic examination which this Bill proposes. The honorable members concerned may well thank their lucky stars that they do not have to contend with the American legislation in which all these matters would be covered very simply by legislation which would make it an illegal practice to reduce competition unduly. Instead of that, the lobby has the added protection under the terms of this legislation that any such practice must not only reduce competition but also be contrary to the public interest.
It is interesting to refer again to the celebrated speech of the Minister for
Shipping and Transport (Mr. Freeth) particularly in relation to the elements of the scheme. In the introductory paragraph relating to practices required to be registered the following appears -
A list of practices, applicable to goods or services, or both, which are unlawful unless a document which fully describes them is legist tered
The lobby should be thankful to the Attorney-General that the provisions of the clause under consideration are as simple and as narrow as they are. The former Attorney-General, Sir Garfield Barwick, proposed to include all practices. He went even further. He said that practices whether they were unilateral, bilateral or multilateral would be included. In his speech on behalf of the then Attorney-General, the Minister for Shipping and Transport said -
In what I have said, Mr. Speaker, I have referred to the registration of a document rather than to the registration of an instrument or agreement, because the list of practices, list A, will be seen to include unilateral activity as well as activities deriving from bilateral or multilateral agreement. Therefore, opportunity must be given to a person who is following a proscribed practice of his own accord and not as the result of agreement, to register a document descriptive of what he is in fact doing or proposing to do. As the House will remember, this scheme is not confined to restrictive practices by combination. It attempts to strike at the harmful act whether or not it springs from agreement, or from a position of power or of monopoly advantage.
What a long way this Bill departs from the original proposal. I repeat: These gentlemen might very well count their blessings because, after all, this particular clause is the palladium of the professions. It has very carefully and neatly excluded agreements between members of particular professions to jack up their fees or impose onerous conditions upon their clients. I leave it at that. I say again to the gentlemen in this particular lobby: “ Count your blessings “.
.- I hope you will forgive me, Mr. Temporary Chairman, for making an observation. The deeds and actions of the honorable member for Sturt (Mr. Wilson) on behalf of pensioners and the little people are so well known in Australia that no advocacy is needed in this chamber to repel some of the nasty remarks the honorable member for Grayndler (Mr. Daly) directed against him.
I suppose it is rather unusual to say that any opposition to this clause cuts right across the whole Bill, but it does. I wish to put on record my opposition to compulsory registration. I believe that we live in a democratic country that observes the rule of law. However, compulsory registration within 30 days after the making of an agreement is here proposed. This will be the effect of an amendment to clause 42 which has been circulated and which will remove from sub-clause (1.) of that clause the words “or within such further time as the Commissioner, within that period, allows “.
– But a new sub-clause which will provide for extension of the time will be inserted at the end of clause 42.
– Under the provisions of sub-clause (1.) of clause 42, after it is amended, compulsory registration within 30 days of the making of an agreement will apply. One of my colleagues a few minutes ago spoke about Star Chamber methods. What is proposed here is dearly beloved of the Socialists.
– What about the Army?
– I can tell the honorable member about the Army, but let us talk about the time when the Nazis in Germany instituted a police state. When enemies of the state were believed to exist in a village and the Nazis could not determine which of the villagers were the enemies that they believed to exist they simply executed the lot. This is exactly the sort of thing that the Commissioner of Trade Practices is being asked to do. He will be asked to sit in judgment on every agreement or practice that is registered. He will be asked to prejudge every agreement or practice. This will impose a terrific burden on one man and, as has been observed, on industry. We could go further and point to what is happening in Vietnam. When the authorities there want to winkle out some Communist sympathisers in a village they put the village to the torch and shoot everybody in the hope that they get those who are believed to be Communist sympathisers. However, the fellow who is the main offender knows all the escape tunnels and he gets away.
The same sort of situation will arise in relation to this Bill.
– I remind the honorable member that he is talking about legislation sponsored by the Government that he supports. Does he consider that he lives in a police state?
– The compulsory registration provisions are akin to the sort of thing that occurs in a police state. They represent just the sort of regimentation that is beloved of the Socialists. However, we on this side of the chamber believe in private enterprise. We believe that until a complaint is made, these processes should not operate. The normal rule of law is that a person who is aggrieved may make a complaint and show cause to a tribunal, and the matter is then judged. Surely the normal pattern should be followed here. The Commissioner of Trade Practices, if he believed that a particular practice or agreement breached the law, could issue an order. Provision for this, plus provision for the making of complaints, would surely be sufficient. My friends tell me that if the compulsory registration provisions are changed the whole balance of the Bill will be upset. Be that as it may, I do not for a moment believe that what is proposed is in the best interests of the community.
Our friend, the honorable member for Cunningham (Mr. Connor) earlier spoke about tied houses in the tyre, petrol and hotel fields. I point out that sometimes a petrol company extends generous financial help to a young man with a family to enable him to establish himself in a service station. Without this help, he could not get off the ground in starting a business. He docs not mind if the company concerned says: “ You must sell the tyres marketed by company X, not those marketed by company Y “. He does not mind that if he is getting a fair go. He has no complaint about that. He complains only when something that worries him occurs. When that happens, a complaint is in order. However, compulsory registration of agreements relating to such matters would deny help to a lot of people who are at present helped to establish themselves in business.
I do not like regimentation and have never liked it. I do not like the standover attitude that is apparent in these provisions for compulsory registration. I believe that registra tion should be required only after a complaint has been made or when the Commissioner of Trade Practices- has reason to believe that the law is being breached. What is at present proposed will upset industry and clutter the offices of the Commissioner and his staff with a great deal of superfluous material. When they winkle through it all and separate the wheat from the chaff they will have so much chaff that they will not be able to see where to put the wheat. This is the sort of thing that is going to happen. There will be only a few undesirable cases out of a welter of registrations.
– Exemption from registration has been secured for practices. Is that not satisfactory to the honorable member?
– No, it should be granted for agreements also. Why not? Why should everybody be constrained for every agreement?
- Sir Garfield Barwick’s proposal was that both agreements and practices had to be registered.
– I do not want compulsory registration of every agreement or practice. I hope that I have made my point because I believe that the Commissioner will be placed in a position of prejudging all of those agreements, and that is too great a task for any one man.
The Parliament - Booklet on Vietnam.
Motion (by Mr. Snedden) proposed -
That the House do now adjourn.
.- I want to refer at this stage to a statement that appeared in the Brisbane Press. It was attributed to a very high official of the Liberal Party in Queensland. It appears under the heading “ M.P.’s not paid to kiss babies “. This very high official has been at pains to cry down the behaviour of members of Parliament. I believe that he would be well informed as far as the members of the Liberal Party are concerned, but he is not competent to speak on the behaviour of members of the Australian Labour Party. He is reported to have said -
Too many of our politicians are wandering about handing out cigars and Press statements just before elections to maintain their seats . . .
– At the Adelaide Club?
– I think this probably would be at the Brisbane Club. Mr. Speaker, I am sure that you do not do that and that members of the Australian Labour Party are not in a position to do it. We behave in an honest way and we would not be guilty of attempting to bribe the electors in such a manner. Whilst I do not dispute the right of this gentleman to speak with authority on behalf of the Liberal Party, I resent his observations being made in a general sense. His statement continues -
That is a shocking statement. It is completely untrue. For the last three weeks we in this House have been sitting on an extra day each week to allow ourselves to give more attention to running the affairs of the country. Whether we are making any progress, of course, remains to be seen. Mr. Speaker, I would say that we have not made a great deal of progress today, although the forms of the House demand that we inform you that we have done so. Members are concentrating their activities on a thorough examination of the matters that concern the welfare of the country. The Press report contains the following motion which was accepted by the meeting at which the Liberal Party official spoke. This motion is to be presented to the young Liberals annual convention in January - “convention deplores the present short length of parliamentary sessions and the short time given as notice of legislation, and urges both Federal and State parliamentarians to increase both the length of sessions and the notice of legislation.”
The position in the Queensland State Parliament is probably a little different from the position in this Parliament. Speaking personally, I would not lodge any objection to ot raise any criticism of the length of notice that we are given of legislation which is submitted to the Parliament. We all know that the procedure is for bills to be submitted and for the debate to be adjourned for at least one week - possibly more - to allow a thorough examination to be made of the legislation. The gentleman continued -
Surely with the future of this country determined by legislation it is imperative that legislation be properly examined, considered and debated. . . .
This gentleman obviously has not paid any attention to the behaviour of the Parliament, particularly in committee, during the last few days when we have spent many, many hours and have sat until almost midnight on three nights to consider the most important bill which has been before us. I am sure that if he could only have seen the behaviour of some members of the Liberal Party in debating most minute parts of clauses of the Bill before the Committee he would not be guilty of making such an outrageous and outlandish statement. The thing that annoys me is, among other things, that this gentleman is a very high official of the Liberal Party in Queensland. If the referendum to permit an enlargement of the Parliament is carried, he could ultimately come into this place. He would be completely disillusioned because he would find that he would not be getting the money to allow him to hand out cigars to people just before elections and that he would have to concentrate his efforts on the examination of legislation that is put before the Parliament. I feel that I speak for all members of Parliament on a kind of unity ticket in this matter when I say that the crowning insult was when he said he does not begrudge paying members of Parliament with taxpayers’ money, and added -
But I do begrudge paying them with taxpayers’ money to open garden parties, kiss babies at the baby show and speak to ladies’ luncheons while Parliament is in session.
I say that no member of Parliament should leave this place while the House is sitting to attend garden parties, to kiss babies, either at baby shows or elsewhere, or to speak at ladies’ luncheons. I try to follow a pretty rigid code in this respect. I refuse to leave the Parliament while it is sitting. I feel that it is my obligation to be here and to study all the matters that are brought before us for examination and debate and to be otherwise dealt with. Consequently, my record of attendance here is a very good one.
While the Parliament is in session I do not attend baby shows or kiss babies, nor do I attend ladies’ luncheons. However, I consider that it is my prerogative and right to attend these functions while the Parliament is not sitting, that is, to open baby shows and kiss the babies, attend garden parties and speak at ladies’ luncheons. I feel that there are too many people outside the Parliament who are
Completely ill informed as to the behaviour of members of Parliament and the demands made on their time. To the unitiated and uninformed we can, in Christian charity, forgive them for their ignorance and hope that in due course they will learn. But when a high official of a reputed respectable political party makes such outlandish statements I think comment should be made in this Parliament to draw the attention of the public to the irresponsibility and unreliability of his statements. I had hoped that a member of the Liberal Party and a member of the Country Party would rise in their places to protest against this irresponsible statement but I am afraid that I will be the only speaker in the Parliament on this matter. I have done my duty to the members of my own party and to the Parliament in making this observation and condemning this man for his irresponsible statement.
.- I want to draw the attention of the House to something else which is irresponsible and about which I would not be speaking this afternoon had I been allowed to speak on the motion for the adjournment last night. It is the issue through the Prime Minister’s Department and the Department of External Affairs to the schools of Australia of a very poor statement of the attitude of the Government on Vietnam. I believe it is one of the most presumptuous, arrogant and unethical acts this Government has perpetrated in its long years of office.
First of all, as the honorable member for Barton (Mr. Reynolds) pointed out last night, it places every headmaster who receives it in an impossible position. He has to make what one might call a valued decision about the use of this material in his school. If he refuses to use it, then he will be charged with political bias. It is a completely unethical disposal of governmental power and may be justly criticised on several grounds. The honorable member for Barton said last night - and I for one agree with him - that at certain levels students at Australian schools ought to learn to make a critical analysis of public affairs and to discuss controversial issues. The issue here is not perhaps so much the question of Government policy and the use of public funds in this way, but the fact that the material distributed presents a one sided view in a country which accepts bipartisan ship in politics; a country in which the party system is inherent in the whole system of politics, and a country in which the Opposition is recognised as being as much a part of the Parliament and therefore as much a part of the government of the country as the Government itself.
Firstly, I think that what has been done represents the unethical exercise of governmental power. Secondly, it is an imposition upon the State schools and, presumably, on the private schools. Thirdly, the information supplied is one-sided. The Government’s action follows out the tradition which has been established over the last three or four decades by people like Hitler, Mussolini and the Communist dictatorships of Russia and China.
Let me deal first with what we might call the quality of the leaflet - it is hardly a booklet and it is hardly a pamphlet. It contains 23 extracts. The views of notable contributors to democratic thought in this country are quoted. It contains two statements from the Prime Minister (Sir Robert Menzies), 18 from the Minister for External Affairs (Mr. Hasluck), one from Senator Gorton and two from the Department of External Affairs. So one can hardly claim that it is an objective creation of the Department of External Affairs with a view to putting everybody’s view before the community.
Let us examine the statements. Is this the kind of material that we are prepared to send out, at Government expense and with the imprimatur of the Commonwealth of Australia, to school children? For example, it contains a quotation from a speech delivered by the Minister for External Affairs in Adelaide on 2nd September last. I do not know to whom he was speaking. The speech was not made in this House. The minister said -
Up to date, the North Vietnamese, and behind them, China, have shown no interest in discussions of any kind.
This was issued within days almost of the publication from America and other sources of irrefutable evidence that the Government of North Vietnam had shown an interest in negotiation. So the Minister’s statement is erroneous and it is completely irresponsible. I believe it is absolutely unethical to send this kind of document around the country at all. Is there anybody in this
House who does not know now that the Government of North Vietnam indicated its interest in negotiation as early as last year? The earliest mention I can find of that is, I think, in the “ Manchester Guardian “ of 11th August - a fortnight or so before the Minister for External Affairs made his statement. So the document falls to the ground upon its very quality. Right through it, one finds this element of inaccuracy. The Minister for External Affairs is also quoted as having said this on 29th April -
The Australian Government is now in receipt of a request from the Government of South Vietnam for further military assistance.
That was on 29th April. Who is the Government? What is it all about? That is the complete bias of the thing - skilfully written by masters of words, with all the techniques of what one might call imposition upon the public will behind it, with all the skills developed by the mastermind of propaganda brought to bear. Senator Gorton, explaining in another place why we are giving military aid and why the people of North Vietnam are the subject of bombing, said -
We must, if it be possible, allow countries and paris of countries to be the masters of their own fates and, without threat from outside, to develop . . .
The Minister for External Affairs (Mr. Hasluck) stated -
We have no desire to make war on North Vietnam but only a steady resolution to defend South Vietnam.
I wonder what the people of North Vietnam think about this, as the bombers thunder overhead with the kindly regards of the Prime Minister of this country, who says that this is an act of great moral courage. So if we turn back the pages we find that the people who sponsored this are notable contributors to mischief, dictatorship and misery in this world. Take “ Mein Kampf “ by Adolf Hitler, formerly Schicklgruber. Is this the document from which the Liberal Party receives its propaganda training -
AU propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to.
This is surely the quality behind the document and characteristic of some of the thinking that we find enshrined in its pages. The extract from “ Mein Kampf “ continues -
Consequently, the greater the mass it is intended to reach, the lower its purely intellectual level will have to be.
Certainly the Libera] Party and its Ministry are fulfilling the criteria laid down by Adolf Hitler. We find in the document a statement about freedom, and what we are fighting for, that might well come from page 634 of “ Mein Kampf **-
A nation, then, will - in our situation - be regarded as fit for alliance, if government and public opinion with equal fanaticism proclaim and uphold the will to fight for freedom.
That sounds like the honorable member for Chisholm (Sir Wilfrid Kent Hughes), advocating the bombardment of innocent citizens of North Vietnam. Then we come to the treatment of schools and the imposition upon the people of Australia in this way. This is what we read in “ Thought Reform and the Psychology of Totalism “, a study of Communist domination in China -
This situation might exist, for instance, in a graduate school department of, let us say, economics, sociology, or literature, dominated by a forceful, authoritarian department head who is a single-minded devotee of one particular doctrinal approach to his subject and who considers alternative views “ erroneous “, and “ unscientific “.
The Prime Minister, in his statement that it is one government, and one point of view going forth, is sponsoring that very idea. In “The Context of Coercive Persuasion”, another study of Communist procedures in brain-washing, we read -
One of the unique features of Chinese Communist rule is group indoctrination on a very large scale.
I believe that honorable members on both sides of the House ought to view with extreme concern not so much the issue of this booklet to the schools of Australia - while they might deplore the quality of it, they might consider its inaccuracies enough to damn the Government - as the fact that it is a one-sided view that is being forced upon the community. It is domination of the lines of communication, one might say, by the Government, using all the force and powers at its disposal. I take this opportunity this afternoon to raise this matter and have it on the record. I believe that the schools of Australia ought to be encouraged to be critical and to discuss controversy. I have said before, not only here but in other places, that I believe the secondary schools of Australia do not do enough of this. But the imposition by the Government upon them of one point of view, with the use of the resources of the Government to disseminate it - one might say, demanding that it be considered - is, I believe, completely unethical. It is outside the tradition on which we built the parliamentary system. I hope that honorable members opposite will consider this deeply and take action inside their own party rooms, at least, to have this attitude of mind and the whole procedure stopped. I regret that I have detained honorable members this afternoon, although it has been for their own good - particularly for the good of honorable members opposite. I have been careful to finish in time to enable honorable members to catch their aircraft. I simply remind the Government Whip that had he not used his coercive powers last night everybody would have been away 10 minutes earlier.
Question resolved in the affirmative.
House adjourned at 4.25 p.m.
The following answers to questions upon notice were circulated -
son asked the Minister tor Labour and National Service, upon notice -
In respect of each registration of national service trainees so far conducted, what has been the (a) number of registrants, (b) list of birthdays drawn from the ballot, (c) number of registrants in respect of each birthday drawn from the ballot, (d) number selected for training, (e) number selected from each Federal Electoral Division,
– The answers to the honorable member’s questions are as follows -
All the detailed information sought is not available. The following statistics may, however, be of assistance -
Twenty-one. 3 and 4. There have been 259 cases of young men who failed to register at the time required for reasons that were not, or may not bc, acceptable. To date three have been prosecuted and each has been fined £10 with £3 7s. costs; and further investigation or prosecution action is pending with the remainder.
d asked the Minister for Immigration, upon notice -
– The answers to the honorable member’s questions are as follows -
– I promised the honorable member for Fremantle (Mr. Beazley) on 1st December, further information on the attitude of the countries involved in the fighting in Vietnam towards the Geneva Conventions on War?
The attitude of the Republic of Vietnam, the North Vietnamese and the Viet Cong was set out by my colleague the Minister for the Army (Dr. Forbes) in a reply to a question from the honorable member for Hughes (Mr. L. R. Johnson) on 28th October. This was that -
The Government of the Republic of Vietnam has formally confirmed its willingness to observe the Geneva Conventions on the treatment of prisoners and to co-operate actively with the
International Commission of the Red Cross to this end. North Vietnam has filed a document of accession to these four Conventions with Reservations but we cannot be confident that North Vietnamese troops or the Viet Cong, who are under the direction and control of North Vietnam, would respect them in practice. The Viet Cong have for example indicated that they do not regard themselves as bound by the Geneva Conventions and have shot two United States prisoners, an act which is completely contrary to the provisions of these Conventions. The North Vietnamese have threatened to try captured United States pilots as “ criminals “, which would also be contrary to the provisions of the Conventions.
I can also confirm to the honorable member that, so far as the actions of Australian troops in Vietnam are concerned, the Government regards itself as bound by the terms of the Geneva Conventions. I understand that a similar position is adopted by the Governments of the United States, New Zealand and the Republic of Korea.
Cite as: Australia, House of Representatives, Debates, 3 December 1965, viewed 22 October 2017, <http://historichansard.net/hofreps/1965/19651203_reps_25_hor49/>.