25th Parliament · 1st Session
Mr. SPEAKER (Hon. Sir John McLeay) took the chair at 2.30 p.m., and read prayers.
– I direct a question to the Treasurer in his capacity as Leader of the House. Would it be correct to say that in line with stated Government policy of removing restrictions, all future parliamentary debates on Government legislation will, subject of course to the House agreeing, continue unlimited by time or by the Government? If so, does this indicate that with the advent of the New Year Parliament will reach the promised land of uninterrupted debate with no gag and no guillotine? If riot, were recent events motivated more by the future political ambitions of the Leader of the House than by a desire for a temporary return to democracy?
– I think the honorable gentleman must have been studying the Wyndham recommendations over the weekend. We on this side of the House feel that the business is well under control and that the democratic processes will function adequately and satisfactorily during the remainder of the session.
– By way of preface to a question to the Minister for Immigration I should like to refer to a recent newspaper article which stated that as a means of encouraging migrants to become naturalised citizens the Department of Immigration in Melbourne, in co-operation with a suburban council, made two of its officers available at a local hall on a recent Friday night and Saturday morning for the purpose of naturalising migrants who feared the formality of a normal naturalisation ceremony. Does the Minister consider the results of the experiment worthwhile? If so, will he give consideration to providing similar facilities for other councils which are willing to co-operate?
-I am aware of the plans that are being made in an endeavour to make naturalisation procedures easier for migrants. We have found as a result of the experiment to which the honorable member has referred that the number of applications for naturalisation has increased. This experiment was conducted first at Sunshine and then at Broadmeadows and Prahran. I think the honorable member for Lalor will be appreciative that we have followed the same course in his electorate because a large number of new settlers live in that area. We have advertised extensively in the St. Albans area to inform migrants of the way in which applications can be made. As a result there have been 159 applications and 139 naturalisations. As this scheme has been a success in Victoria we will continue with it in that State and will also extend it to New South Wales. The honorable member for Evans will be glad to know that we have Blacktown under study at the present time. As a result of the extension of the procedure to other areas and by facilitating applications for naturalisation we are finding that the numbers seeking naturalisation are increasing. In the last four months we have received about 3,000 more applications than we received in the corresponding period of 1964-65.
– I ask the Prime Minister whether he is aware of a statement made by Sir John Crawford, who was Deputy Chairman of the Vernon Committee of Economic Inquiry, that the Prime Minister was a little hasty in rejecting the Vernon Committee’s recommendations. Is the right honorable gentleman also aware that Sir John Crawford submitted that the Committee did not exceed its terms of reference? Can the right honorable gentleman say whether there will be a further study by the Government of the Committee’s recommendations, to serve the best interests of Australia?
– I have had the advantage of reading the statement made by Sir John Crawford, which, if I may say so, I thought was extremely temperate and restrained. With the great bulk of it, I would have no difficulty in agreeing, just as the Government had no difficulty in agreeing with the great bulk of the matters contained in the Committee’s report. Indeed, we found the recommendations extremely useful.
My original statement was not a hasty statement, lt was made after full Cabinet consideration and it was designed in particular to dispose of two recommendations which we thought should be dealt with at once. I understand there is to be an opportunity - at least it is so hoped - of having some debate on the report. If this is so, then the honorable member and anybody else who cares to speak will have an opportunity to say what they have to say. I repeat that I read this statement by Sir John Crawford with full respect, and I was impressed by its temperate qualities.
– I ask the Minister for Labour and National Service whether he has seen the report that an executive of the Waterside Workers Federation has forecast that the industrial committees of the Federation would break down and that it was likely that the waterside workers would then be in a position to bring the export of primary products to a standstill early in 1966.
– I did see a statement said to have been made by a Mr. E. Mccormack who is standing for election as Assistant Secretary of the Melbourne Branch of the Waterside Workers Federation. He is not to be confused with Mr. J. Mccormack, an Australian Labour Party member-
– They are both A.L.P. members.
– I will answer the question in my own way. The honorable gentleman can make a statement later if he wishes. Mr. E. McCormack is not to be confused with Mr. J. McCormack who is standing for election as President of the Melbourne Branch of the Federation.
Mr. E. McCormack, the man whom I mentioned first, has made a provocative statement which implies in effect that in the new year the Federation will not stand by the present agreement it has made with the Government and will not willingly cooperate in the all-in conference that is now being held with the support of the Australian Council of Trade Unions. He is not a member of the Executive of the Federation, as is suggested in the report; he is a member of the Federal Council.
Yesterday, the Federal office of the Waterside Workers Federation issued a statement denying responsibility for Mr. E. McCormack and stating that it will still participate in the all-in conference and that it will do so with sincerity and with the hope that the conference will ultimately reach a settlement of the various problems that are to be discussed there.
– I ask the Minister for National Development whether his attention has been drawn to the existence of the Yaamba Gap dam site on the Fitzroy River in central Queensland where, by the construction of a wall approximately 240 feet high, some 11 million acre feet of water, which is more than twice the capacity of the whole of the Snowy Mountains scheme, would be stored. Does the Minister agree that in view of the regularly occurring serious droughts the conservation of water for domestic, industrial and rural use is one of the most important forms of development required in Australia? Has any approach ever been made to the Minister’s Department by the present Queensland Government seeking Commonwealth financial assistance to construct this dam and its associated reticulation system? If such a request was made, will the Minister have it investigated?
– Primarily, of course, as the honorable member would recognise the responsibility for water conservation in Australia is a matter for the States. My Department, through its Northern Division, has looked at the water resources of some of the areas in the north, but there has been no direct approach to the Commonwealth Government from the State Government for funds for this project.
– I address a question to the Minister for Social Services. As there is still some doubt in the minds of some pensioners as to who qualify to receive supplementary assistance will the Minister set out, in a few words, details of those eligible, with particular reference to home ownership?
– The liberalisation of supplementary assistance announced by the
Treasurer during the presentation of the last Budget was intended to extend the benefit available to pensioners who were paying rent. The actual payment of supplementary assistance will go to all pensioners with assets below £200, and income up to 30s. per week. Some supplementary . assistance will be payable to pensioners with no income but assets of up to £980 who are paying rent.
– Single pensioners.
– Supplementary assistance is payable to single pensioners as distinct from married pensioners. The reason for distinguishing between one group of pensioners and any other is that single pensioners seem to have been more grievously affected by the burden of costs than any other. Any pensioner who is within those financial categories and who feels he may be entitled to the benefit should apply to the nearest office of the Department of Social Services.
– I ask the Minister for Social Services a question. In connection with the extension of benefits under the pensioner medical scheme, due to commence from 1st January 1966, will it be necessary for pensioners to apply for the benefits or will the entitlement card be issued automatically to each pensioner?
– As the honorable member will know, the extension of the pensioner medical service will apply to all persons who are in receipt of a benefit as at 1st January next. In addition the benefit will be extended to all persons who become entitled to the payment of a pension at a subsequent date under the conditions applicable at 1st January. It will not be necessary for persons to apply for a pensioner medical card provided they are already in receipt of a benefit. However, any person who subsequently becomes entitled to a pension will have to lodge the normal application at the Department of Social Services before his entitlement to a benefit can be determined.
– Can the Minister for Health say whether it is a fact that light aircraft with West Irian markings are being ferried from Papua to an area west of Sydney for servicing and maintenance? Although this purpose is laudable, are these aircraft subject to a stringent inspection by health authorities or are they entering this country without the knowledge of the Department of Health? Will the Minister comment on any health risk involved? Further, will he check with the Minister for Civil Aviation and the Minister for Territories on the legality of the movement of these aircraft?
– The authority for flights of light aircraft from West Irian through the Territory of Papua and New Guinea down to the Australian mainland is under the control of my colleague, the Minister for Civil Aviation, and, in the case of the Territory, also the Minister for Territories. However, in the few cases where trips of this nature have been arranged for the servicing of aircraft the Department of Civil Aviation and the Department of Territories have advised my Department and full precautions have been taken to see that the aircraft are disinfected on first entry to the Australian mainland. The normal rigid quarantine regulations apply to any goods carried on the aircraft or to any personnel on board the aircraft upon arrival. So I can assure the honorable member that every precaution is taken.
– Is the Minister for Health aware of a newspaper report pointing out the danger to human life from the use of certain insecticides containing DDT, which is known to be a stable cumulative and dangerous poison? Will the Minister initiate an inquiry into this matter with a view to making a public statement?
– There is no need to initiate an inquiry into this matter because it is well under control in Australia. I have seen the report referred to by the honorable member. It related to certain matters arising in the United Kingdom. I cannot guarantee the accuracy of the Press report. We have in Australia a system whereby insecticides are registered by a sub-committee of the National Health and Medical Research Council which, as honorable members are aware, has been established by statute passed by this Parliament. No insecticide or pesticide is registered by Commonwealth or State Governments until approved by that sub-committee, which pays regard to the danger present from residues. I can give a definite assurance to the House that this situation is most carefully controlled in Australia. The problems that have been mentioned in the report referred to should not arise in this country.
– I ask the Minister for Trade and Industry a question. Because of the serious shortage of copper and copper based scrap, will the Minister consider the re-imposition of a ban on the export of these metals?
– This matter is under consideration now. Officers of the Government are in discussion with interested parties. That is all I can say at the present time.
– In addressing a question to the Minister for National Development, I refer to the finance required for the next phase of the Ord River project and to the Government’s earlier declaration that more experience was required before a definite decision on finance could be made. Did officers of the Northern Division of the Department of National Development maintain a regular observation of pest control and cotton growing methods used so successfully at the Ord this year? If so, is the Minister satisfied that the main problems have been overcome and that the information gathered by his Department, together with that supplied by Western Australia, should be sufficient to allow the Government to make an early and definite decision of a favorable nature?
– I give to the honorable member the same answer as was given to the last question asked: This matter is under consideration by the Government now.
– I ask the Minister for Trade and Industry a question. The Minister is aware that sales of Australian citrus fruit have been made to France for the first time this year. Will the Minister give information as to the quantities sold and the prices obtained? Are such fruit exports covered by the Export Payments Insurance Corporation legislation? Is the Minister aware that citrus growers desire the establishment of a stabilisation scheme for their products, particularly oranges? Will the Minister say what action the growers should take with a view to obtaining a stabilisation scheme?
– It is true that a very satisfactory entry has been made this year into the citrus fruit market in southern France. A sale of 120,000 cases has been made at what I understand was a very satisfactory price. I think the oranges came almost exclusively from the irrigation areas of the Murray River. Most, I am sure, would have come from the honorable member’s electorate. The honorable gentleman asked me whether the citrus growers are interested in a government supported stabilisation plan. This is really a question for my colleague, the Acting Minister for Primary Industry, but I am sure he would permit me to say that I know the citrus growers are interested in such a proposal. It is still for them to determine what principles they wish to apply to such a scheme. The Government is, in principle, willing to consider this kind of stabilisation proposal, butits decision depends on the details and the circumstances. I understand that the representatives of the citrus growers are currently discussing this whole issue with officers of the Department of Primary Industry.
– I ask the Minister for Labour and National Service a question. Last week I asked him whether it was a fact that automation on the waterfront would result ultimately in 80 per cent, of the wharf labourers being rendered redundant. The awful word “ containerisation “ is used to describe current developments. I now ask the Minister: Was he misinformed or merely uninformed when, in his answer, he denied that automation would proceed so quickly? I also ask him: Is it a fact that on the ship “ Kooringa “ eight men are employed in stowing cargo and about 32 others are, by special arrangement, employed on the wharf, although on other ships of the same size no fewer than six gangs, totalling 120 men, are employed? If these are facts, what does the Minister and his Department propose to do about the problem of automation on the waterfront?
– I could well ask whether the Leader of the Opposition was ill-informed or badly informed when he asked his question. However, I refrain from impertinence and I refrain from posing the question. I think the suggestion that 80 per cent, of employees on the Australian waterfront will become redundant because of automation or because of the use of container ships on the coast is fantastic. The Australian Stevedoring Industry Authority has looked at this problem. We in the Department have also given this matter the closest possible attention. I point out that the Waterside Workers Federation and the Australian Council of Trade Unions have asked the all-in conference to deal with the problem of mechanisation and its effect on the waterfront. I do not fear the effects of automation. I believe it brings great benefits to workers, but I also believe that, if we take the kind of attitude that has been adopted by the Menzies Government ever since it took office, no harm can come to us by rapid mechanisation and automation. Its policy has always been one of looking ahead and always trying to ensure that if mechanical methods are introduced they will be introduced for the benefit of the working men.
– I address a question to the Postmaster-General. By way of explanation, may I say that the ballot papers for the wool referendum are returnable in brown envelopes which have on the front the address to which they are to be sent and which on the back are endorsed with the name and address of the voter. I ask the Postmaster-General: Is he aware that on one occasion at least and probably on more, the Post Office, by mistake, has returned the ballot paper to the voter instead of sending it to the addressee? The Post Office has mistaken the back of the envelope for the front. As the ballot is to close in a few days time, will the Postmaster-General make certain that this mistake is not repeated so that he will avoid disfranchising people who are entitled to vote at the referendum and who are correctly carrying out the instructions of the returning officer?
– I was not aware of any miscarriage of the mail as mentioned by the honorable member, but I point out to the House that as more than 10 million letters are sorted in Australia each week we cannot guarantee at all stages that there will not be some mis-sorting. I regret that this particular incident has occurred and I will bring it to the notice of the Department. I hope we will be able to avoid a recurrence particularly in relation to wool referendum material.
– My question is directed to the Prime Minister. In view of the recent findings of the Australian National Travel Association, after a two year survey, that tourism could be worth £103 million a year to Australia by 1975, the need for some co-ordination in tourism throughout Australia and the desirability of exploiting this huge potential, has the Government ever considered setting up a Federal division of tourism, say within the Department of Immigration, with the Minister having the dual title of Minister for Immigration and Tourism?
– The Government has a very lively interest in tourism, as the honorable member knows, and we have been quite active in that field. We have had under consideration at various times a variety of proposals. 1 am interested to hear the proposal that the honorable member makes now, because we are at all times looking for ways and means of increasing the benefit that undoubtedly will result from a flood of tourists coming into Australia.
(Mr. Jess having addressed a question to the Minister for the Army) -
– Order! The honorable member’s question is out of order.
– My question is directed to the Postmaster-General. I ask whether the honorable gentleman and the Minister in Charge of Commonwealth Activities in Education and Research have completed their discussions on the report of the Weeden Committee, the committee that the Australian Broadcasting Commission invited in January oflast year to advise on educational television services, and which made its report last December? If so, when does the Minister expect to announce any decisions by the Government on educational television services?
– This report is in the hands of the Minister responsible for education activities. I will consult with him and ascertain when I can expect that he will let me have his views on it.
– I preface a question to the Prime Minister by saying that Mr. Jay, President of the British Board of Trade, announced recently that the United Kingdom Government is to build 26 factories in developmental areas in Scotland, Wales, north-east England and other parts of the United Kingdom, at a cost of £1½ million sterling. Further, Mr. Jay pointed out that of the factory space already completed by the Board of Trade only 1 per cent. was unoccupied. I ask: Is it a fact that the Australian Government is at present studying decentralisation with the State Governments? As Australia is the most urbanised community in the world, has the Federal Government under consideration any comparable policy to that of Great Britain in order to encourage decentralisation of industry in Australia?
– I am not aware of the details of Mr. Jay’s statement, to which the honorable member referred. He will, of course, not fail to recall that what can be done in a unitary country like Great Britain is not necessarily the same as what can be done in a federal country like Australia, because the former has no problems of power of the kind that we have. Therefore, a great deal of co-operation is needed in this field. As he will perhaps recall, we have had this matter under examination at the official level and in due course it will be dealt with in a co-operative spirit at the ministerial level.
– My question is addressed to the Treasurer. During the weekend considerable publicity has been given to the increased availability of credit for housing. Is the Treasurer aware of the serious situation facing the textile industry generally, and the woollen mills particularly, as far as the availability of credit to finance the course of production between wool buying and the final sale of the product is concerned? I refer in particular to a mill in the Geelong district which has reduced employment from 300 at the beginning of the year to 160 now, 32 dismissals having taken place last week. Will he discuss with the Governor of the Reserve Bank of Australia within the next few days the need to make credit more freely available for this important, decentralised industry?
– I think examination would need to cover the situation of the industry generally and we would need to see whether this particular establishment represents a typical situation inside the industry. I think I am correct in saying - I hope I do not do it an injustice - that this particular concern has had a history of difficulty over a number of years. There may be special circumstances attaching to that establishment which may not be typical of the textile industry generally, although I am well aware that it too has had to contend, in the Australian scene, with competition and has had its course of fluctuations in profitability. However, if the honorable gentleman is able to give me details of the particular circumstances which he feels call for some special action I will be glad to discuss them with him.
– I address my question to the Minister for Social Services. I refer to Treasury figures for the five months period ended 30th November relating to the Consolidated Revenue Fund and in particular to the expenditure of £38.8 million for child endowment. As this figure would appear to be well in excess of the pro rata calculation and as the estimate of £87 million for the whole year probably will be exceeded, I ask the Minister whether he can indicate to the House the main factors that might bring this about? Would it have a distinct relationship to the Government’s decision to extend child endowment for students up to the age of 21 years?
– Although I am not aware from my own knowledge of the exact implications of the statistics which the honorable member has cited to the House, I would imagine that there must be some correlation between the extension of student endowment and the growth of the figures to which he has referred. There have been, from State to State, some variations in the amount payable by way of student endowment. This is partly related to the availability of secondary education in each State. As honorable members are aware, in some States there is a period of secondary education of only five years whereas in other States there is a six year period. In States where secondary education extends to six years, not unnaturally, there is a tendency for more children to remain at school longer. However, might I express the hope that the figures indicate a general intention for Australians to stay at school longer and a desire to receive more education which, T think personally, is most laudable?
– I ask the Treasurer: Is he aware that many senior officers of the Commonwealth Public Service in Canberra work long hours at their offices during the evening and at weekends without any extra remuneration as they are in an executive classification in which they are not entitled to overtime payments? Can the right honorable gentleman give an assurance that these officers are covered by the provisions of the Commonwealth Employees Compensation Act while they are travelling to and from their offices and while they are working at their offices in these evening and weekend periods?
– I have good cause to know that many senior officers of the Commonwealth Public Service do devote themselves, in the way that the honorable gentleman has indicated, to their responsi bilities. They are to be commended for that. I shall study the point that the honorable gentleman has raised and obtain an answer to his question.
– My question, which is addressed to the Prime Minister, concerns Rhodesia. Can the right honorable gentleman say whether there are any moves to establish a fresh Commonwealth initiative with respect to solving the problem of Rhodesia - an initiative based on conciliation and not on coercion - or whether we must for the time being accommodate ourselves to contemplating bellicose activity that will help the position of neither Europeans nor Africans?
– I have not heard of any fresh Commonwealth initiative. Somebody told me this morning that there was one, but I had never heard of it; so it may be taken that there is no such proposal. At the present time, as the honorable member knows, the countries of the Commonwealth, and a great number of countries which are not in the Commonwealth, are directing their attention to the extent to which they can support the action of Great Britain in imposing certain economic sanctions. We have already announced our participation in that field, and I expect that inside the next 24 hours I will be able to announce some extension of our activity in that field.
– I address my question to the Minister for the Army. Is Australia prepared or preparing to despatch more battalions of fighting troops to Vietnam? Does he intend to permit Australia to be denuded of its forces in Australia and to have them tied down, perhaps, for many years in the jungles of Vietnam?
– I have nothing to add to what the Prime Minister said on this matter at question time last week.
– Is the Minister for Air in a position to indicate to the House whether any reasons really exist for the restriction of promotion opportunities among engineering personnel in the Royal
Australian Air Force? Is he aware that among such technical personnel the attitude is developing that a man, although qualified, is fortunate to attain the rank of corporal by the time he completes 15 years of service?
– As far as I am aware, there have been considerable opportunities for promotion in the Royal Australian Air Force for engineering personnel, both airmen and officers. A member of the Air Board, who has the rank of air vicemarshal, is properly trained and fully qualified. Similar promotion opportunities exist in all the branches of the Air Force. If the honorable member will give me more definite details of the matter to which he is referring, I shall be happy to look into it.
– Will the Prime Minister indicate whether the report of the committee that was set up to investigate freight costs in Northern Australia is to be presented to the Parliament before it goes into recess?
– I would like to be able to say “ Yes “ but frankly I cannot, assuming that the House rises this week, because this report still has to be examined by the Cabinet, as the honorable member would expect, before it is made public. We have not yet been able to deal with the matter. So, as to this week, the answer is “No”.
– My question is addressed to the Minister for Labour and National Service. Hewill recall that some months ago questions were asked in this House regarding the training of adults as skilled workers, so urgently required in Australia. The Minister had in mind a scheme. Was he able to put it into operation or is he still seeking the approval of the trade unions?
– It is true that some months ago - in fact probably as long as 18 months ago - the Government commenced action to encourage the trade unions to co-operate with us in training adults for skilled occupations. Our representatives have had several discussions with representatives of the unions concerned and the Australian Council of Trade Unions, but up to the present we have not been able to obtain their full approval for a scheme. We are actively seeking the cooperation of the trade union movement in order to have a scheme of adult training introduced.
– I ask the Minister for National Development a question. Has he seen reports that 300 million tons of coking coal have been located under the Royal National Park south of Sydney and in an off shore area near Cronulla and Coledale? Will he confer with the New South Wales Government so that, rather than have these deposits handed over to some private company or to overseas investors, a public authority will be authorised to mine them, thereby ensuring that the public derives some benefit from the exploitation of these resources?
– As a matter of fact I shall meet the New South Wales Minister for Mines, Mr. Lewis, on Wednesday of next week to discuss this matter and in particular the total reserves of coking coal that are available in New South Wales.
– My question, which is directed to the Minister for Trade and Industry, relates to claims that the domestic price of meat may rise now that rain has fallen in parts of Queensland. As it was claimed earlier that the rise in the price of meat was in fact due to the effects of drought, can the Minister explain these apparently contradictory aspects of the effects of drought on domestic and export meat prices? If the present assessment is correct, for how long does he expect prices to rise? What kind of circumstances would eventually reduce them?
– Meat is sold freely in this country, much of it by the auctioning of livestock, and the ruling prices flow largely from the supply and demand situation, overlaid by the prices offered for export meat. The character of the drought had the effect of diminishing the availability of some kinds of meat and increasing the availability of other kinds. As a result the prices of certain kinds of meat rose during the drought. When the drought breaks satisfactorily the graziers who have run down their flocks and herds will, as much as they are able, abstain from offering their stock for sale for slaughter and will try to breed up their herds again. In addition, graziers will enter the auction yards to bid against butchers for certain kinds of stock for the purpose of restocking. I expect that the normal consequences will follow and that meat prices will tend to move upwards rather than downwards as a first reaction to the breaking of the drought. In due course, however, when fat cattle and fat sheep are more freely available there will be a relapse of prices.
– My question is addressed to the Prime Minister. Has the Commonwealth Government been informed by the New South Wales Government that it has been urged by the Rockdale Municipal Council, which administers important southern suburbs of Sydney, to issue a writ against the Commonwealth for £1 million for damage to public and private property along the foreshores of Botany Bay? Is it a fact that the Council and residents assert that the extensive damage in the BrightonleSands and Kyeemagh areas is wholly attributable to dredging operations carried out in connection with the extension of the north-south runway at Sydney (KingsfordSmith) Airport into Botany Bay? In view of the fact that the onset of damage began six months ago and has been seriously extended since, will the right honorable gentleman personally intervene in the matter to expedite a decision by the Commonwealth as to its acceptance of responsibility for repair of the damage and the taking of measures to prevent further damage?
– I had not heard about the writ. This rather shocks me. I used to have more interest in writs than I have now. Although I have not heard about this matter or about the claim being made, I have no doubt that some of my colleagues who are concerned with the matter have heard about it. I shall find out what the position is and advise the honorable member.
– by leave - In reply to a question by the honorable member for Bendigo (Mr. Beaton) on 30th November, I said that I hoped to be in a position shortly to let the House know, because a great many honorable members have been acutely interested in this matter, of the results of the Commonwealth Government’s consideration of recent approaches we have had from the States of New South Wales and Queensland for financial assistance to enable them to undertake additional relief measures for primary producers who are suffering because of the present unfortunate drought in those States. The Premier of New South Wales and the Premier of Queensland both wrote to me on 26th November advising me of relief measures in those States.
I had previously advised both Premiers that they could take it that Commonwealth financial assistance would cover whatever deficit they ultimately might have in their budgets as a result of drought measures that might be taken. Both Premiers have instituted schemes to help relieve the situation. In both States there are schemes of concessional loans of up to £3,000 for essential carry-on purposes for drought affected primary producers who are in necessitous circumstances and are unable to finance their essential carry-on requirements from their own resources or through ordinary commercial channels. These loans will be at 3 per cent. interest per annum and advances are repayable over a maximum period of seven years with repayment of interest and principal deferred for the first two years. In addition, the States have instituted other schemes which include such measures as advances through the banks for fodder purchases, grants to local councils for special purposes associated with drought problems in particular areas, local unemployment relief work and rebate and subsidy schemes for the carriage of fodder and stock by road and rail.
I can now inform the House that the Premiers have been advised that the additional measures will come within the scope of the Commonwealth’s undertaking to provide financial assistance in respect of the cost to their States of drought relief measures. So we have adopted all those measures as valid. I have also informed the Premier of Queensland that the Commonwealth agrees to a request his State has made for an immediate interim advance of £1 million to Queensland on account of drought costs. The request was made in accordance with a previous assurance by the Commonwealth Government that it would be prepared to consider making interim payments if the States so desired. The Premier of New South Wales had previously told me that he considers that it would be preferable for his State to wait until the results of the first half of the financial year are available before making formal application for an interim payment. As 1 said previously, the Commonwealth’s undertaking to provide financial assistance to the two States in respect of the cost of their drought relief measures is unprecedentedly generous. The additional relief measures now being taken by the two States will, I am sure, be of great assistance in enabling drought affected primary producers in necessitous circumstances to carry on.
– by leaveAfter a period of inquiry by the Opposition extending over at least six weeks we have some elucidation from the Prime Minister (Sir Robert Menzies) of the machinery for drought relief to be undertaken in New South Wales and Queensland. In view of the fact that the Prime Minister informed the House previously, and reiterated the information today, that the cost incurred by the respective States in regard to their Budgets will be reimbursed by the Commonwealth Government, this Parliament is entitled to a great deal more detail than has now been furnished by the Prime Minister in respect of the actual machinery of drought relief. The Opposition concedes that the respective State Governments have the administrative machinery to assist primary production in their own States inasmuch as they have control of the Rural Bank, Lands Departments and Agricultural Departments and are in closer contact with the primary producers in their State than the Commonwealth administrative authorities are and to that extent they are the best people to administer relief. Nevertheless, as the Commonwealth is to provide from its revenue the amount of the deficit that will be incurred by Queensland and New South Wales in administering drought relief, I direct the attention of the Parliament to the fact that the Prime Minister was informed on 26th November that those States will make available £3,000 to drought stricken settlers or farmers for essential carry-on purposes when they are in necessitous circumstances and when, from their own resources, they are unable to finance carry-on activities. These loans will be at 3 per cent, per annum and advances are repayable over a maximum period of seven years with repayment of interest and principal deferred for the first two years.
We are entitled to have some specific information on this proposal advanced by the States of New South Wales and Queensland. What I and other Opposition members want to know is exactly what rate of interest will be charged to the Governments of New South Wales and Queensland. Will the States receive this amount at the cost of issuance from the Reserve Bank of Australia at 5 per cent.? Will they receive it at cost of issuance through some merchant or pastoralist firm? Will it be at cost of issuance from some State instrumentality? What will be the situation? We are entitled to know whether the States of New South Wales and Queensland will pay 4 per cent., 5 per cent., 6 per cent, or 7 per cent., because finally the difference between the 3 per cent, charged to the primary producer and the cost to the respective State Governments will be a claim on the Commonwealth. I suggest that to that extent the Prime Minister has left us in the dark.
Let us consider the conditions surrounding the loans of £3,000 for the relief of distress. Obviously the primary producers to whom the loan will be available will have exhausted their resources from private lending institutions. Of course, at that stage’, one always resorts to Socialism to carry the risk. The risk is to be carried by the States of New South Wales and Queensland. If a man has exhausted all his own private resources and pledged all his security to the private banking institutions and pastoral firms, what hope has he of meeting his interest and sinking fund commitments at the end of two years? We are told by the right honorable Prime Minister that he will get from the States a breathing space of two years, during which he will pay no interest and no sinking fund repayments. After that he will be required to pay interest, just at the time when he is beginning to stand on his hind legs. He will also be required to make repayments of principal annually. What hope has he got? He has none whatever.
We want to know how, in those circumstances, the Prime Minister is able to say, in effect, that this provision by the Commonwealth Government is unprecedentedly generous. Generous my grandmother! All previous administrations ensured that the primary producer who was down and out was given effective help. In those days, this Parliament, in conjunction with the State Parliaments made outright grants to the people engaged in the dairying industry and to the people engaged in the wheat growing industry.
The Prime Minister owes this Parliament a more detailed account of exactly what his proposal means. We are told that special grants will be made by the State Parliaments to the local authorities. What kind of special grant? At what rate of interest will it be made available to local authorities? What is the difference between the special rate of interest, if any,- at which the money will be made available to local authorities and the rate at which it will be made available to the State Governments? What will be the ultimate cost to this Parliament? We ought to know these things, but we are given no details. We are told nothing. All we have is a bland statement that this proposal by the Commonwealth Government is one of unprecedented generosity. It is nothing of the sort.
Even the small amount of relief proposed by the State Governments was not agreed to without a considerable amount of prodding and pushing by the Opposition of this Parliament. Honorable members on the Government side dispute that. Let them pick up any primary producers’ newspaper in Australia, be it pseudo-radical, pseudoconservative, or pseudo-Country Party, and they will find that every one, without exception, has been critical’ of this Commonwealth Government for its negligence and prevarication in connection with the provision of drought relief to those unfortunate people who are suffering such great hardship today.
I leave it at that. I regret that the Prime Minister has not conveyed to this Parliament more detailed information about exactly what the proposal of the State Governments means in terms of pounds, shillings and pence.
– I ask for leave to make a statement.
– On what?
– On drought relief.
– Is leave granted?
– Leave is not granted.
– I ask for leave to present the report of the Australian Delegation to the Inter-Parliamentary Union conference at Ottawa in September 1965.
– Is leave granted?
– Leave is not granted.
Assent to the following Bills reported -
Customs Tariff Bill (No. 3) 1965.
Tobacco Marketing Bill 1965.
Tobacco Charge Bill (No. 1) 1965.
Tobacco Industry BUI 1965.
States Grants Bill 1965.
States Grants (Special Assistance) Bill 1965.
Foot and Mouth Disease Bill 1965.
Judiciary Bill 1965.
Judges’ Remuneration Bill 1965.
States Grants (Research) Bill 1965.
Bill presented by Dr. Forbes, and read a first time.
– I move -
That the Bill be now read a second time.
The purpose of this Bill is to seek the approval of Parliament to certain amendments requested by the Queensland Government to an agreement between the Commonwealth and the State relating to the development of the brigalow lands in the Fitzroy River basin of central Queensland.
The Brigalow Lands Agreement Act 1962 approved an agreement under which the Commonwealth provides financial assistance to Queensland of up to £7,250,000, on a repayable interest-bearing basis, in respect of expenditure by the State over the fiveyear period ending 30th June 1967 in the development of certain specified areas in the Fitzroy River basin.
The general plan of development of these areas involves the re-subdivision of the original holdings and the allocation of the larger number of blocks, some to the existing landholders, some to sale at auction and the remainder to applicants selected by the State. Those blocks allotted to existing holders or sold at auction are for development by the holders from their own resources, while those allotted to selected applicants are developed by the State Government on behalf of the applicants with finance provided by the Commonwealth under the Brigalow Lands Agreement Act.
The scheme of development is administered wholly by the State. Commonwealth participation is restricted to the provision of financial assistance for implementation of the scheme. The State Government, largely as a result of the experience it had gained in administering the scheme, recently proposed a number of variations to the Agreement. These are the following -
The variations do not involve any increase in the Commonwealth assistance of £7,250,000 provided for under the original agreement.
In a scheme of this nature, it is not surprising that the State has found it desirable to vary the original plan of development in the light of experience. The Commonwealth Government has accordingly agreed to the necessary amendments to the Agreement to give effect to the variations requested by the State, and the amendments involved are embodied in the further agreement which the Bill now before the House submits for Parliament’s approval.
The opportunity has also been taken in the amending Agreement to enlarge the discretion of the Treasurer to agree to variations of the scheme requested in future by the State. Under the original Agreement, the Treasurer was able to approve only suggested variations in the details of the development works specified in the third schedule, namely, the particular works to which financial assistance provided by the Commonwealth may be applied. It is thought desirable in the interests of flexibility to extend the Treasurer’s discretion to include the plan of development specified in the second schedule.
I think it can fairly be said that the brigalow lands development scheme is already proving to be a notable success, and I am sure that full development of the scheme will produce important benefits for the nation in terms of northern development and export earnings from beef cattle. I have pleasure in commending the Bill to the House.
Debate (on motion by Mr. Luchetti) adjourned.
Consideration resumed from 3rd December (vide page 3632).
Clause 41 (Agreements subject to registration.)
Clause agreed to.
Clause 42. (1.) Where an agreement has become subject to registration under this Part, particulars of the agreement, in accordance with this section and verified as required by this section, shall be furnished to the Commissioner within the period of thirty days after the date on which the agreement became subject to registration, or within such further times as the Commissioner, within that period, allows. (3.) The duty to furnish particulars under this section in respect of an agreement that has become subject to registration is not affected by any subsequent variation or determination of the agreement, and if, at any time after an agreement becomes subject to registration, the agreement is varied (whether in respect of the parties or in respect of the terms) or is determined otherwise than by effluxion of time, then, except as otherwise prescribed, particulars of the variation or determination, verified as required by this section, shall be furnished to the Commissioner within the period of thirty days from the day on which the variation of determination occurs or within such further time as the Commissioner, within that period, allows. (4.) The requirements of this section may be complied with -
in respect of an agreement - by any party to the agreement; or
in respect of a variation or determination of an agreement - by any person who was or is a party to the agreement immediately before, or immediately after, the variation or determination.
– by leave - I move -
At the end of the clause add the following sub-clause - “ (8.) A person referred to in sub-section (4.) of this section may, before the expiration of the time within which, apart from this sub-section, the particulars are required to be furnished, apply in writing to the Commissioner for an extension of that time and, where such an application is made, the time within which the particulars are required to be furnished shall not be taken to expire -
The first amendment proposes to delete the words “ or within such further time as the Commissioner, within that period, allows”. In the Bill as it stood clause 42(1.) would enable more time to be given to people to register agreements. This is now to be achieved in a different way. The provision will appear as sub-clause (8.). The first and second amendments are consequential upon the third amendment which inserts new subclause (8.). The new sub-clause will provide a much improved method of handling this particular problem. As the Bill reads at present there are 30 days in which an agreement is to be registered, but the Commissioner may, within that period, allow a further period of time in which to register. Representations were made that the Commissioner would not have time to deal with all applications within 30 days. It was suggested that there should be an amendment to enable the Commissioner to grant an extension of time provided the application for the extension was made within 30 days. This had much merit, but it did not appeal to the Government because it would inevitably have meant that after the 30 days a person who had not registered would be in breach of the Act but that by an extension given at a later time the Commissioner would, in effect, be pardoning an offence that had been committed. For this reason the Government decided that the best way to handle the matter was to provide that the liability to register would not materialise, provided the party applied within the 30 day period for an extension, until the Commissioner gave his reply. Let me put it more obviously. Let us suppose there was an agreement which should be registered within 30 days. For some reason the party seeks an extension of time and applies for it on the 20th day. The obligation to register is held in suspense, so to speak, until the Commissioner gives his decision. If the Commissioner gives his decision on the 40th day then the obligation to register does not materialise until 14 days after the Commissioner refused the application or, alternatively, until such greater time as the Commissioner has allowed expires.
Amendments agreed to.
Clause, as amended, agreed to.
Clause 43. (3.) The penalty for an offence against this section is a fine not exceeding One thousand pounds. (4.) It is a defence to a prosecution for an offence against this section if the person charged satisfies the Court that -
– by leave - I move -
These amendments are of a formal nature. They form part of the general conversion of pounds to dollars that is being made in Commonwealth statutes.
– When the Bill was introduced last May - still more, when the legislation was forecast three years ago - it was expected that the penalties would be in the ancient currency. Monetary measures, however, have proceeded with greater speed than restrictive practices legislation and, accordingly, it has been necessary to make this conversion to decimal currency. We support the amendment and trust that the legislation will be in force by the time decimal currency comes into operation.
Amendments agreed to.
– I move -
After paragraph (c) of sub-clause (4.) insert tha following paragraph - “ (d) he believed on reasonable grounds that the agreement was not registrable,”.
I indicate to the Committee that I will seek a division on this amendment. This clause provides penalties for failure to furnish particulars. If an individual fails to register an agreements commits an offence. I have argued, throughout the various phases of the Committee debate, that with respect to a registrable agreement or examinable practice there does exist a desperately grey area of doubt. I have further argued that it would be virtually impossible in some circumstances for an individual to know whether he had on his hands a registrable agreement or an examinable practice. Last week I advanced the view that if an individual was genuinely in doubt and sought legal advice it might well be that the advice tendered to him would be: “ No, this is not a registrable agreement, this is an examinable practice “, and when it came to the prosecution under this legislation he could not raise, by way of defence, the fact that he had sought legal advice. Now, I think that this is completely wrong and my amendment does not in any way disturb the principles upon which the Bill rests. I submit that it is eminently reasonable.
I submit further that when we are dealing with a statute that provides a penalty for an offence, there should never be any ambiguity. I do not think it is fair for any individual who may be caught within the ambit of the legislation to be in doubt as to his obligations. I do not weary the Committee by citing authority on this point but wherever a penalty is provided in a statute, the nature of the obligation which, if breached, gives rise to the penalty should be clear and explicit in all circumstances and on all occasions. No person should be put in a position where he has to fumble with cloudy and dark words in order to ascertain his obligation. But this is the position in which an individual is placed by this clause. The penalty is not inconsiderable. It may well be that with the utmost good faith an individual held the view that he had an examinable practice and not a registrable agreement, but that would avail him naught.
Another aspect of the legislation which the Committee should consider is that nowhere is there any obligation on the Commissioner to serve notice on the individual that he has a registrable agreement. Part of my objection would be met if there were in this clause or in some other clause a provision calling upon the Commissioner to serve notice on the party who, in his judgment, has a registrable agreement. If there were such a provision, part of my fears would dry up. But we have the absurd position of an individual being faced with a fine of 2,000 dollars notwithstanding that he has acted with utmost honesty and fairness and with a scrupulous regard for the law. I do not think this is fair enough and I hope that the Attorney-General will be able to accept my amendment which provides as a defence to a prosecution under clause 43 that the individual believed on reasonable grounds that the agreement was not registrable. The onus would be on the individual to show that there were reasonable grounds. I think that is a rugged enough circumstance as it is. In no way does the amendment detract from the principles of the Bill. I hope that the AttorneyGeneral may be persuaded to accept the amendment.
.- The honorable member for Moreton (Mr. Killen) has raised the matter of whether an agreement is registrable and has moved an amendment. I oppose the clause which provides a penalty for not registering an agreement under certain conditions. I do this because a certain amount of confusion exists and this would make the application of the clause grossly unfair. The honorable member for Moreton has submitted a proposal which, I think, is infinitely better than the clause as it now stands. Last week I said that I was deeply concerned with the effect that Part V of the Bill would have on the free enterprise business community that we have in Australia today. The removal of Part V, which deals with compulsory registration of agreements, would in no way affect the principles of the Bill and would save the business community a tremendous amount of money and much irritation. I pointed out that whereas this legislation is new to this country, it was not new to New Zealand or to Great Britain and that those countries had found it necessary to vary their legisla tion. In particular New Zealand has found it necessary to vary its legislation. After three years experience the New Zealand Government has removed the provision for compulsory registration. I believe this will happen in Australia if this provision is made law.
I point out that under Part V thousands of unnecessary agreements will have to be made. All these will be lodged in Canberra, causing unnecessary expense and work. Not only written agreements, but also oral agreements will have to be registered. I said last week that I envisaged the registration of implied agreements made by businessmen over a cup of tea. Businessmen will have to rack their brains to remember whether they have made an implied or verbal agreement which they have not registered. The honorable member for Grayndler (Mr. Daly) said that this was a ridiculous argument. It is ridiculous that this kind of thing should happen and I think that this provision in the Bill is particularly stupid. The compulsory registration of these agreements will impose on the business community a tremendous unnecessary expense. Individuals may be fined up to £1,000 if they do not register agreements. This is a ridiculous situation. My argument was supported somewhat last week by the Minister for Shipping and Transport (Mr. Freeth), who, referring to the position in the United Kingdom, said that of 2,300 agreements made in Great Britain, only 1 1 were contested. He said -
If we are going to have a similar experience in Australia, then obviously in the early days of the Tribunal at least there will not be a great deal of work to do.
There may not be a great deal of work for the Tribunal to do but there will be a lot of work for the business community all over Australia. They will have the worry of investigating agreements, including verbal agreements, to see whether they should be registered. Grave doubts exist now as to whether some agreements will have to be registered, but to avoid being fined up to £1,000 they will have to be registered. Not only will the business community be put to the expense of registering agreements but also the taxpayers will be put to the expense of establishing a new department to handle this matter because every horizontal agreement, big and small, in every part of Australia, will have to be registered. These agreements will be dropped on the doorstep of the Commissioner in Canberra because Canberra is to be the repository of these agreements. The agreements will have to be sorted, indexed and filed. A considerable staff will have to be employed to examine the agreements. The remarks of the Minister for Shipping and Transport last week show how unnecessary all this work might be.
Additional to the staff employed on indexing and filing agreements, there will be a staff to investigate industry to ascertain whether any agreements exist which have not been registered. The work involved will be tremendous. Extra staff will be needed to prepare cases and prosecute individuals who fail to furnish the required particulars. Obviously, the Commissioner will want to be available to persons who wish to consult him about agreements and practices. The department concerned will be involved in a considerable amount of work. Further work will be involved in the preparation of information for the Tribunal. I envisage the registration of these agreements creating a tremendous amount of unnecessary work. All that is necessary to rectify this situation is to drop Part V of the Bill. The Commissioner still would be able to call for agreements. He would still be able to investigate an agreement on the objection of any member of the community and he would still be able to operate on his own volition. Even if the whole of Part V of the Bill were dropped, the objectives of the Government on the question of trade practices would not be affected. The honorable member for Moreton has directed the attention of the Committee to the fact that clause 43 deals with the costly prosecutions that the Government will undertake. I object to clause 43, but I see great merit in and prefer the amendment of the honorable member for Moreton.
.- Like the honorable member for Isaacs (Mr. Haworth), I am altogether opposed to clause 43 and I shall vote against it, whether it is amended or not. However, because the suggested amendment of the honorable member for Moreton (Mr. Killen) would lessen the viciousness of the clause I will support his amendment but I will then vote again t the clause as amended because I believe it is entirely unnecessary and destroys an otherwise worthwhile Bill. I say that this clause destroys an otherwise worthwhile
Bill because the clause is quite unnecessary. It does not aim to attack the firm or organisation that is carrying on practices contrary to the public interest; it places a blanket obligation upon all firms, companies and individuals in this country to register any understanding or agreement, express or implied, between competitors or likely competitors, whether they are contrary to the public interest or not. It imposes a most vicious penalty of £1,000 upon a firm or company that may have been advised that the understanding or arrangement is not in any way contrary to the public interest, if on examination by the Tribunal or the appropriate authority it is held that the understanding or agreement should have been registered.
Over the weekend, I had the opportunity to speak to the representatives of one of the most reputable companies in Australia. They said that they had been examining this clause for some months. Quite a number of their employees had been engaged in this examination and they thought that some 60 agreements would have to be registered. Let us multiply that by the number of companies and firms in Australia. My estimate is that hundreds of thousands of agreements will have to be lodged for registration. The first effect of this will be that the register itself will be cluttered, as is the register of the European Economic Community. There, when edicts were issued requiring agreement to be registered, some 30,000 agreements were lodged. The administrative machine cannot handle them and it has been said that for the next two years nothing can be done, because that time will be needed to register the agreements that have been lodged already. The requirement there relates to agreements in the nature of international agreements. But when we think of agreements between competitors relating to the sale of a bolt or a screw and require that they be registered-
– Verbal agreements, too.
– Verbal agreements, written agreements or implied agreements. We can imagine the inconvenience to which hundreds of thousands of traders in Australia will be put, even though they have not carried on a practice contrary to the public interest. First, they must find out what agreements have been made, perhaps in the last 50 years, and which of them come within the definition of agreements between people on the same horizontal plane. Then they must determine whether they are the kinds of agreements that must be registered. Of course, this will be a tremendous harvest for the legal profession. It will be tremendously costly for industry.
I believe that clause 43 is the worst interference with enterprise, commerce and industry that has ever taken place in Australia. Therefore, I am wholeheartedly opposed to the clause. It imposes a penalty of £1,000 or 2,000 dollars upon a company that fails to do something that is uncertain. The company does not know what it must do or must not do. As I mentioned before, the AttorneyGeneral (Mr. Snedden) in a most eloquent speech pointed to the need for certainty. Most of the Bill is quite certain, but this clause is the most uncertain provision that would be put in any bill. Because of its uncertainty, because it is unnecessary, because it is contrary to all business principles and because it is an unwarranted interference with ordinary commerce and industry, I propose to vote against clause 43, however it is amended, but I will support the amendment because it makes the best of a thoroughly bad job.
.- I do not know how long it is intended to continue the Liberal seminar on trade practices in this Parliament. I hesitate to rise again, but I feel it is necessary to do so because of the efforts of the honorable member for Isaacs (Mr. Haworth) the honorable member for Sturt (Mr. Wilson) and the honorable member for Moreton (Mr. Killen), who moved the amendment now before the Committee, to break down further the requirement to register agreements, to which the Committee has already agreed. Clause 43 imposes penalties and provides a number of defences for those who, on the registration of agreements, feel that they have some complaint. But the honorable member for Moreton in his amendment, supported by the honorable member for Isaacs and the honorable member for Sturt, wants to abolish the penalty and wants to add to the defences. In fact, the honorable member for Isaacs went as far as to ask the Attorney-General (Mr. Snedden) to delete Part V altogether. To do so would mean the complete elimination of the requirement to register agreements. If this amendment is carried, the need for the registration of agreements will be removed.
– We will have the New Zealand method.
– That does noi make it perfect. New Zealand has a Tory Government, and the honorable member would not expect me to agree with it. It is hard enough for me to agree with the Government on this Bill, but at least there is some basis for agreement. If the Government accepts the amendment, it will mean that a person who is guilty of improper trade practices can carry on indefinitely until by accident he is discovered. In other words, there will be no registration to give the Attorney-General and his officers a chance to know at once what the situation is. I would like to know why the honorable members want to destroy completely a requirement that is essential to the workings of this very broken down, weak attempt to control trade practices.
I thought that over the week-end honorable members on the other side might have seen the light and that those honorable members who appear to be disgruntled would have found reasons for dropping their opposition to the Bill. But at this early stage it would appear that they are to continue with their campaign to sabotage every vital provision of the Bill. If the provision requiring the registration of agreements is removed, if added excuses are included in the provision and if the penalties are removed, the effect of the Bill will be nullified, particularly as a provision relating to the Australian Industries Preservation Act has already been taken out. I do not want to say any more but I appeal to the good sense and tolerance - if there is any left - of honorable members opposite to accept what I understand to be the overwhelming majority view of their parties and accept this legislation. To make it any weaker than it is will be an insult to the intelligence of the Australian people. I should like the two honorable members concerned - not on this clause, as I think we have heard enough, but some time during the course of the debate - to let us know just what interests are behind them seeking to break down this legislation in the face of public clamour for action against restrictive trade practices.
.- I am sorry to have heard from the honorable member for Grayndler (Mr. Daly) the ugly echoes of the police state - the kind of thing which was characteristic of the Labour Government of, happily, 15 years ago. The Labour Party’s attitude is that it will impose penalties; it will require people to pay whether they have committed a crime or not. Let me say that nobody on this side is trying to break down this legislation. That allegation is a fabrication. What we on this side do want is to ensure that the legislation shall be fair and equitable. I ask honorable members to think of what is implied in the refusal to accept this amendment. 1 ask the Attorney-General (Mr. Snedden) to direct his mind to it and to see whether in his good sense he might not find it possible to accept the amendment. Perhaps he has not thought of the matter sufficiently.
The need to register an agreement is not always clear. The dividing line between what agreements are registrable and what are not, and between what are understandings or implicit understandings, or something of that character, and what are not, is not always clear. Obviously, most of the people concerned will be small people and not big people, because it will be in respect of the small agreements that the line of demarcation will be hardest to determine. These people will go to their lawyers and will receive advice one way or the other; but a lawyer’s advice is not always infallible. Suppose, Mr. A., a small shopkeeper, is frightened that he may be transgressing under the Trade Practices Act. Suppose he goes to his lawyer, Mr. X., Q.C., the Queen’s Counsel tells him that he is outside the provisions of the Act, and then it is found that the Q.C. has advised him wrongly. This man has done the right thing. Perhaps he is not able to afford a Q.C. Being a small man he may go to a barrister and a mere lowly counsel like my friend the honorable member for Moreton (Mr. Killen) and obtain advice. He acts in good faith. He has done everything he should but the advice turns out to be wrong. As I see it there is no escape for him under this clause as it stands because he has adverted to the agreement. As he has adverted to it he cannot get out under the provisions of paragraph (a) of sub-clause (4.). He knows that nobody else has registered the agreement so he cannot get out under paragraph (b). It is not an agreement which has been registered so he cannot get out under paragraph (c). How can this innocent man escape penalty? I do not think the Attorney-General has considered this matter sufficiently. Whether he has or not, I dare say that members of the Opposition, who believe in the Socialist police state, in the bureaucratic right to impose penalties without appeal and in the right to gaol or fine a person, say, £1,000, are gloating over this provision. If the Government acts in this direction people like the honorable member for Grayndler and my friend the Deputy leader of the Opposition (Mr. Whitlam) will be gloating, because they believe in bureaucracy and, at heart, in the police state.
The other point I make is that unless this amendment is agreed to the Government will foul up the operation of the Act. It will not strengthen the legislation by refusing to accept this amendment; it will weaken it. If this amendment is not accepted everybody is going to register agreements which have the least chance of coming within the Act, and the Commissioner and the Tribunal will be swamped with, not thousands, tens of thousands or hundreds of thousands of cases, but perhaps a million agreements. There will be so many to deal with that the Tribunal will not be able to deal with the ones that really matter. To leave no gateway for the innocent man means that in point of fact some of the guilty will escape, because the guilty will be submerged in the flood of the innocent who naturally do not want to take a risk. I remember a short story by G. K. Chesterton in which he asked the question? Where is the best place to hide a leaf? The obvious answer was: In a tree, because it is hidden by the hundreds of thousands of other leaves like it. The best way to provide an escape for the guilty is to give them an opportunity to hide themselves in a flood of innocent people.
It may be that there is some sinister motive behind the present attitude of the Opposition. Maybe the real point is that they want the guilty to escape. They want to pretend to be the enemies of the big men, but perhaps the big men have got at them behind the scenes. Perhaps they are really the cat’s paws of some of the interests which were so heavily involved with the
Labour Party when it was in power and which financed the Labour Party to such a great extent in those days. After all, the honorable member for Grayndler is well known as “ Fleshpot Fred “-
– Order! I suggest the honorable member come back to the clause under discussion.
– All I am saying is that perhaps we should ask the AttorneyGeneral for a reason for not accepting the very reasonable amendment that has been moved. If he cannot give us that reason he should accept the amendment. This is not an amendment which will allow a guilty person to escape. This amendment will not weaken the legislation in any way. The contention of the honorable member for Grayndler that this amendment will weaken the Bill is exactly opposite to the truth. By refusing to include the words that have been suggested there will be a flood of agreements registered which it was never contemplated the Bill would cover at all - agreements which are quite outside the kind which the legislation reprehends. The resulting Hood of agreements will allow guilty agreements to be concealed and passed over. We do not want this position to occur. That is not what the legislation contemplates. Members of the Opposition have tried to conceal that good purpose of the legislation. On the other hand, Government supporters are trying to improve the Bill so that its good purposes can be more effectively carried out.
I repeat that people in any doubt will register their agreements. A person may not know whether an agreement is registrable or not. If there is no gateway for good faith, he will register it. There must be some gateway for good faith. The people about whom I am talking are the little people, because it is in relation to the agreements entered into by little people that the line of demarcation is most shadowy and nebulous. Do not let this become an act to tyrannise hundreds of thousands of small people. This Bill has a good purpose. Do not let that purpose be immured and buried under a flood of needless trouble, which apparently is what the Opposition wants.
.- I would like to express my view of this clause which is that it is good as it stands. The argument in favour of the amendment of the honorable member for Moreton (Mr. Killen) seems to be that there is room for confusion in the minds of people in the business community as to an examinable agreement on the one hand and an examinable practice on the other hand. For my part I am unable to see any real force in that argument for the simple reason that examinable agreements - the agreements pointed to and defined under clause 35 - are agreements all of which operate between people on one level of the distributive process in industry or commerce. Horizontal agreements are what are aimed at by clause 35. If we move to clauses 36 and 37, where practices are dealt with, one finds that the transactions which are there pointed to are transactions which operate vertically. That is to say, they operate between people on different levels of what I call the distributive process.
Bearing in mind the fundamental difference in the nature of the two types of transaction respectively described in clause 35 on the one hand and clauses 36 and 37 on the other, how can it be said by the Committee that there is any reasonable room for confusion in the minds of the commercial community between examinable agreements on the one hand and examinable practices on the other? If one concedes, as I think one is forced to concede if one looks at the matter analytically, that there is no room for confusion, it seems to me that the argument in favour of this proposed amendment could be said to have greatly diminished in force.
The only other thing I want to say relates to the second leg of the argument, as I understand it, in favour of the amendment. That is that when a business man looks at clause 35 he might be puzzled to know, even with the aid of a lawyer, whether the agreement he is carrying out falls within the definition of an examinable agreement as set out in clause 35. Let us not think of these agreements as being arrangements made in a vacuum. In 99 per cent, of cases they are subsisting agreements, put into execution from day to day. The argument is that this hypothetical business man may be in doubt as to whether or not what he is doing falls within the definition of an examinable agreement under clause 35. All I say in regard to this is that if one looks at sub-clause (1.) of clause 35 it seems to me that nothing could be clearer than the descriptions of the types of agreement that are examinable. I look at this matter from the viewpoint of one who has had something to do with commercial men and their legal problems. I cannot conceive that a reasonable commercial man sitting down to examine his position could be in any doubt as to whether what he may be doing falls inside or outside the plain terms of subsection (1.) of clause 35.
Mr. Chairman, I want to emphasise that some honorable members may be looking at this matter a little too theoretically and in too much of a vacuum, as it were. The agreements that are the subject of clause 35 are agreements being carried into execution and being performed from day to day. Can it seriously be suggested that a business man, who has agreed with other business men on the same level of the distributive process as himself upon the terms or conditions upon which they will have dealings with the next people in the distributive line, will be seriously in doubt as to their position? I do not think so. I am therefore disposed to agree that the clause as it presently stands is good and should so stand.
.- The arguments which have been advanced in support of the amendment of the honorable member for Moreton (Mr. Killen) are, I think, the best proof to the public of Australia of the amount of division within the Government parties. I think the events of the last three sitting days would have convinced the people of Australia that there is a very substantial body of opinion within the Tanks of Government supporters which is resolutely determined at all costs not merely to dilute this Bill but to destroy it. I say that because registration is of the very essence of this measure.
The argument advanced in favour of registration is simply this: That in the course of administration of this legislation, because it is unique in Australia, and because of the absence of precedent it will be very necessary to secure the cooperation of the business community. For that purpose, the proposals made by Sir Garfield Barwick for this measure have been very considerably modified in this Bill. Under the Barwick proposals, to obtain immunity, all that was necessary was to register the agreement. Having done that the person concerned had a perfect right to carry on his practices, whatever they were, good or bad, unless and until that agreement was struck off the register. In this particular case, precisely the opposite penalties applied. Under this measure, the agreement must be registered and in return for that there is immunity. There is no separate offence of carrying on a practice, which was the position under the Barwick proposal. Under the Barwick proposal, there could have been two separate offences: First, there was the offence of failing to register. Secondly, there was the offence of continuing a practice after an agreement had been struck off the register. In this particular case we have exactly the opposite. The register itself will be secret. There will not be general public access to it. In that respect the legislation is much more conservative and much more loaded in favour of the business community than the United Kingdom act.
It might be worth referring to the United Kingdom act because I notice an exact similarity. The honorable member for Mackellar (Mr. Wentworth) referred to the introduction of a police state and police state methods. If I might compare clause 42 of this measure with section 10 of the Restrictive Trade Practices Act, introduced in 1956 by a U.K. Conservative Government, we find that the police state idea was first introduced by Conservatives. I would assume, as a matter of logic, that the dissident supporters of the Government are prepared to accuse their own Attorney-General (Mr. Snedden) and the majority of their own party members of police state tactics. They are, of course, well able to defend themselves in that regard. But when we compare the requirements of registration in this Bill and in the U.K. act we find that they are almost identical. Under clause 42 of the Bill, the names of the parties to the agreement, the date of the agreement, and the whole terms of the agreement whether or not relating to relevant restrictions must be registered. The text of the English Act in section 10(1), paragraph (a) and paragraph (b) relating to particulars to be furnished for registration is -
They are almost identical with the present Bill. Let us consider the penalties provided. Here I assume that the honorable member for Mackellar would apply his strictures to an English Conservative Government. We find that even worse penalties are provided in Great Britain. Section 16 (2) of the British Restrictive Trade Practices Act states -
If any person who furnishes or is required to furnish any particulars, documents or information under this Part of this Act, -
makes any statement, or furnishes any document, which he knows to be false in a material particular; or
recklessly . . .
– That is a different thing altogether.
– This section sets out the penalties for making a false statement and for wilfully altering or suppressing a document. A person who does either of those things is guilty of an offence and is liable on summary conviction to imprisonment for a period not exceeding three months or a fine of £100, or both.
In refutation of the arguments advanced by the honorable member for Moreton, let me refer to somewords that Sir Garfield Barwick addressed to the 13th Legal Convention of the Law Council of Australia on 25th January 1963. He said -
Thus the proposal–
That is for registration - is that frankness on the part of the businessman be purchased by offering to keep his information on the register confidential, by acquitting him of making by registration an admission of the quality of his registered practice, and by providing that, until his registration is cancelled, carrying on the practice the document covers will not expose him to the risk of penalty, nor subject him to uncertainty.
On the other side of the picture–
I particularly emphasise this passage and repeat that these words were spoken by a conservative Attorney-General - . . and this is one of the occasions of the use of the criminal law - there is a prohibition under criminal penalty of carrying on a practice in this list without a document having been lodged. A businessman caught carrying on such a practice without registration has no answer. He cannot show that his practice is not harmful. It is felt that this is a justifiable use of the criminal law because the method of avoiding the breach is so simple - register. If a businessman wants to be perverse and completely uncooperative he must take the consequences. He cannot without registration justify his practice, even though in fact it could be justified. To obtain an opportunity to justify, there must be a registration.
The amendment before the Committee is deliberately designed to destroy utterly and completely one of the vital sections of the Bill. In the words of Sir Garfield Barwick, it is designed to aid, abet, incite and encourage the perverse and unco-operative businessman.
.- I am surprised by the arguments that the honorable member for Parkes (Mr. Hughes) advanced a little while ago. He said that he supported this clause and that there was no confusion in any ordinary agreement from day to day. I would like him to look at clause 91 of the Bill. He is a lawyer, so he might be able to tell me something about sub-clause (2.) of that clause, which reads -
An arrangement or understanding, whether formal or informal and whether expressed or implied, shall be deemed to be an agreement.
If anybody can tell me that that is without confusion, I do not know what the word “ confusion “ means. Who would know what is an agreement under clause 91? Who could know whether something’ is an agreement when the definition includes an implied agreement? I fail to understand how the honorable member for Parkes can reconcile his thinking on this point. It is all right if one reads clause 43 on its own, without referring to the definition of “ agreement “ in clause 91.
I wish to challenge the honorable member for Grayndler (Mr. Daly), who made some very remarkable statements a little while ago. They showed that he has not done any work on this Bill. Obviously he does not know what Part V of the Bill really means. As I said earlier - he challenged me on this point - the removal of Part V from the Bill would have no effect whatever on the purpose of the Bill because a complaint may be made direct to the Commissioner of Trade Practices or the Department of Trade and Industry may be asked to take action. The Commissioner could take action even if no complaint was made and irrespective of whether or not registration existed. That is the position in the United Kingdom. I want to direct the attention of the Committee to the tremendous confusion that exists-
– Would the honorable member prefer the American method of dealing with this matter?
– I would prefer an arrangement under which no registration of agreements at all was necessary. I do not think registration is necessary. It is expensive. It is irritating not only to the big people in the community but particularly to the small businessmen. The small businessman wants to know whether he has an agreement - formal or informal, express or implied - with his next door competitor or somebody down the street.
I ask the Committee to consider this situation: A local shopping committee meets perhaps once or twice a month. It has no books of its own. It has no minutes. The members of the committee just meet together in order to compete with some city interests. Perhaps once a month they meet and arrange to have some kind of star bargain. Have they to register that agreement? The fact that it is not written does not mean a thing. The fact is that they have an implied agreement among themselves, and therefore they have to register it. If they do not register it, they may be fined up to £1,000. 1 ask the Committee to think of the hundreds of thousands of agreements such as that implied agreement which must exist throughout the whole Australian community. 1 can understand the honorable member for Grayndler objecting to such agreements because the Australian Labour Party, particularly the New South Wales Branch when it was in power in that State, would not have a bar of small businesses. It would not-
– Order! I suggest to the honorable member that the remarks that he is now making have no relation to the clause-
– The only relation-
– Order! I suggest to the honorable member that his remarks have no relation to the Bill. I believe that in the last four sitting days the Committee has been given a pretty fair run in making generalisations on the clauses and amend ments before it. I believe that it would be of advantage to everyone concerned if, from now on, speakers kept their remarks relevant to the clause and amendment under discussion and if they did not proceed with a further series of second reading speeches, by making generalisations.
– Very good, Mr. Chairman. I am very pleased that you have drawn our attention to that point, because I am really trying to apply myself to clause 43 on the matter of agreements. I say that when we consider this clause we have to take into the consideration clause 91 which refers to agreements, whether formal or informal and whether express or implied. When we take that into consideration, we can appreciate the fact that clause 43 will require a tremendous amount of work by members of the business community in searching through all of their agreements, including not only their written agreements but also ones in their minds, and deciding whether they have ever had implied agreements with their competitors or with their colleagues in their business on a horizontal plane. I am staggered by the suggestion made by some members of the Committee, particularly the honorable member for Grayndler. The removal of Part V of the Bill will not affect it in any way.
– I have not spoken previously on this Bill.
– Well, do not start now.
– I do not intend to take much notice of the expressions of the suspicious Socialist mind on a measure of this nature. We all know what is the policy of honorable members opposite. We all know what is happening in regard to small shopkeepers, who will be affected to the same extent as the big businessman will be. The big businessman can afford to pay for the extra work - legal and otherwise - that has to be done. The little man cannot afford that. The little man will have to register agreements in the same way as the big man will. It is the little man who will be in trouble in respect of the various clauses in relation to registration.
I cannot understand the attitude of the honorable member for Grayndler (Mr.
Daly) to us members who oppose registration because we believe that it will clutter up the Bill. He asks what is behind our opposition. Long before many honorable members opposite were born I opposed collusive tendering in the trade that I was in. I am glad that that trade dropped it some time ago. I am in favour of the general principles of this Bill.
– We all are.
-General has not given any reason, and I do not see, why this requirement of compulsory registration has been included in the Bill. I cannot see any reason why failure to register should be an offence. The honorable member for Cunningham (Mr. Connor) referred to the United Kingdom Restrictive Trade Practices Act 1 956. I would far rather have the terms of registration provided for in that Act, which does not make non-registration an offence of itself. There is an offence only if one is called on to register and does not do so. There is some sense in that. As an earlier speaker said, there will be tens of thousands of agreements registered if it is an offence not to register. This will only clutter up the office of the Commissioner of Trade Practices, for all these agreements will have to be filed and indexed. I presume that if they are required to be registered they will also have to be read and dissected. So, as one speaker remarked earlier, the whole business will just be a gold mine for the legal profession and the accounting profession and a haven for bureaucracy.
The clause now before the Committee will not help. In general everybody knows the particular agreements that ought to be registered. So I do not know why on earth the Attorney-General wants this clause in the measure. It will only handicap those who have to administer the provisions of the Bill in an effort to achieve its true purposes. This clause will cause all sorts of trouble. As I have said, in the main it will hit the little man. Suppose two greengrocers whose businesses are in the same suburb decide that instead of each taking his own truck to the markets daily to get his supplies one will take his truck to get the supplies for both one week and the other will do it the next week and that as part of the agreement they will not compete in prices. I take it that this will be a registrable agreement and that if it is not registered both parties will be liable to a fine of up to £1,000. Will the honorable member for Parkes (Mr. Hughes) tell me whether I am correct? This is the sort of agreement that should not have to be registered at least until a complaint is made about it. If a complaint is laid - all right. It can then be registered. Surely the British method, with its reference to classes of agreements or agreements in particular trades, is infinitely preferable to a procedure such as that now proposed which will only clutter up the whole organisation. The registering of tens of thousands of agreements unnecessarily will only provide useless work for a lot of public servants.
I cannot see the need for compulsory registration of all agreements, Mr. Chairman, and I cannot understand why the Attorney-General is not prepared to state clearly why this requirement is necessary. As has been pointed out, it does not exist in New Zealand or Canada. Those of us who believe in this Bill and would like to stop the activities of the main offenders who enter into trade agreements prejudicial to the public interest consider that this sort of clause will handicap the achieving of the purposes of this measure.
I was very interested to hear earlier today the Minister for Trade and Industry (Mr. McEwen). I candidly confess that I cannot understand where stabilisation of an industry begins and restrictive trade practices finish. Apparently, a government stabilisation plan is all right. Some are efficient and some are not. But an efficient stabilisation plan in private industry is apparently regarded as a restrictive trade practice. There are agreements that clearly do not provide for the stabilisation of an industry and are not in the public interest. We want a measure that will effectively deal with them. As I have said, I have yet to learn the reason why this clause is included in the Bill. The Attorney-General has said nothing to convince me of the need for it. He has not demonstrated to me the reasons why all agreements, implied, informal or otherwise, must be registered. Therefore, I shall vote for the proposed amendment as the lesser of two evils.
.- Mr. Chairman, I do not propose again to go over the objections to the clause as a whole. They have been very well outlined by several of my colleagues. One of the features of this Bill that I find completely unacceptable is the lack of provision for appeal. There is no provision to enable a person who feels aggrieved to obtain redress at law. The proposed amendment will give some little hope to the unfortunate person who finds that he has inadvertently transgressed and who in the circumstances has no defence whatsoever. Since the proposed amendment will offer such a person some hope, I shall support it.
Mr. WENTWORTH (Mackellar) [4.411. - Mr. Chairman, I want to advert only to one or two matters. I was unable to follow the remarks made by my friend, the honorable member for Parkes (Mr. Hughes). Certainly there is some uncertainty about this measure in the minds of businessmen. Lawyers may be clearer about it, but I doubt that. The agreements that will be required to be registered under the terms of this measure include implied agreements relating even to quite small matters. I do not accept the view that what is intended in this clause is always clear. But, even if the honorable member for Parkes holds the view that the provision is always clear, he should still support the proposed amendment, because it will do no harm. Surely it is & good principle to allow the innocent to escape punishment. This should be a good principle for all lawyers particularly. Even if the harm done by this clause will not be as great as is thought by those of us who oppose it, the honorable member for Parkes, as a lawyer, should support the principle on which the proposed amendment is based - namely, that the innocent should have a reasonable chance of escaping infliction of a heavy penalty, without any loophole in the law, when they have been simply the victims of their own reasonable misapprehension about the meaning of provisions in the Bill or about their obligations under its terms.
This is not an easy measure for the little man to understand. I know that my friend from Parkes is a Queen’s Counsel of considerable eminence. The business people who consult him are big people who do not mind paying high fees. But what about the small man? The honorable member perhaps does not understand that a complicated measure of this character will send shivers down the spine of a great many small businessmen. These will not be businessmen of the kind with whom he deals. They will be small men directly engaged in the day to day conduct of their own small businesses.
I should like to deal particularly with what the honorable member for Cunningham (Mr. Connor) said, Mr. Chairman. I consider that he ought to apologise to the Committee for misleading it either by design or, I prefer to think, inadvertently. He quoted a provision of the United Kingdom Restrictive Trade Practices Act 1956 and said that this was a provision introduced by the Tory Government in that country. He did not quote the relevant provision of the Act. One of my colleagues has just remarked that this was shameful. I do not go so far as that, because the honorable member for Cunningham may merely have been ignorant. He may not have misled the Committee deliberately and I do not accuse him of having done so. However, what he said was in fact wrong. He quoted the provision in the United Kingdom Act that provided a penalty for making a false declaration. That penalty is prescribed in sub-section (2.) of section 16 of the United Kingdom Act, which I have in my hand now. The honorable member did not read sub-section (1.), which is the relevant provision. Let me read it to the Committee. It states -
If any person fails without reasonable excuse to comply with a notice given to him under section fourteen of this Act, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding One hundred pounds.
That was the provision which the honorable member should have quoted and which is relevant to the clause now before the Committee. The provision in the English Act contains the vital words “ without reasonable excuse”. This is all that we want to put into the Australian Act. We do not want to put in anything more than is in the English Act which the honorable member for Cunningham, in his ignorance, was parading before us, namely, “ without reasonable excuse “.
– Mr. Chairman, 1 ask that you control the honorable member for Mackellar. I submit that it is not permissible to refer to an honorable gentleman’s ignorance in this matter. The honorable member for Cunningham was referring to the severity of penalties under this clause and in the British legislation on this subject. He followed speakers who had referred to the ruinous severity of the penalties and he was entitled to quote from the Act. I suggest it is not permissible to bring in what a member says on one subject under another head and then accuse him of ignorance of the subject. I suggest, Sir, that you control the honorable member for Mackellar in his method of debating this subject.
– Order! The point made by the honorable member for Mackellar was one of debate. To a degree his remarks may have been undesirable, but they were not unparliamentary. The honorable member may use the expression as he desires.
– May I point out to the Deputy Leader of the Opposition (Mr. Whitlam) that I was being kind, not unkind, to the honorable member for Cunningham. The honorable member said something which was in point of fact untrue. He said that the English Act provided a heavier penalty for this kind of thing. He might have said this with the deliberate intention of deceiving the Committee or he might have said it in ignorance. I took the kinder alternative. What he said was untrue, but in what he said I do not think he was trying to mislead the Committee.
– Order! I suggest that the honorable member for Mackellar has made his point.
– Thank you, Sir. If I may turn again to my friend from Cunningham, honorable members will recall that he said - the “ Hansard “ report will check my memory on this - that the English Act is this respect was more savage even than the Australian provision. I pointed out that the section which he read from the English Act refers to the making of a false statement and not to failure to register. It is a penalty for a different type of offence, one which is reprehensible and which, of course, requires a heavy penalty. But the kind of thing which is before the Committee in clause 43 is referred to in the English Act in much milder terms because the English Act leaves the gateway “ without reasonable excuse “. I remind my friend from Cunningham that this expression appears in the English Act. Perhaps he has overlooked it. Because he is trying to bring our legislation into line with the English Act, I take it that perhaps he might even find himself called upon to vote for this amendment. We are asking only that a man who innocently commits a technical error should be able to plead his own goodwill in the matter. The innocent man should be able to escape the automatic penalty. But the bureaucrat, the advocate of the police state - I do not put the Attorney-General in that class because he has not even considered it-
– Order! I have previously made suggestions to the honorable member for Mackellar about these comment’s. I remind him of my remarks.
– I shall follow your suggestion, Sir, and sit down.
.- I do not normally attach very great significance to the statements of the honorable member for Mackellar (Mr. Wentworth), but when reference was made to the police state mentality I thought it was time to take a definite stand and state a definite viewpoint. The example that I quoted was a correct one. In relation to registration I should like to quote from an article by Mr. Walker, lecturer in law at the University of Sydney. The reference to this article is the Australian Law Journal, volume 39, of 30th August 1965. Mr. Walker said on the question of arguments and justification of a case by case approach as is contemplated in the Bill -
The first reason given for the Bill’s approach is that the federal enforcement agency, lacking the manpower needed for an effective investigation team, will need to “ buy “ its information from businessmen themselves. The only way to obtain frank and open disclosure (so the argument goes) is for the government to undertake not to impose any penalty until the specific practice or agreement has been adjudged contrary to the public interest and the parties have had the opportunity of ending it. This is also said to avoid subjecting businessmen to the disturbing scrutiny of “ armies of investigators “.
The reference to “ armies of investigators “ was a reference made by Sir Garfield Barwick in his speech to the 13th Legal
Convention of the Law Council of Australia to which I referred in my earlier contribution. What has business to be afraid of? In particular, little business men will be the ones who will benefit most by the terms of this legislation. It is aimed mainly at manufacturers and distributors - at the big people - who have been exploiting, oppressing, rigging prices and working their rackets on a scale far in excess of that in any other country of the so-called Western democracies. What have these people to fear if they are under an obligation to register? If they register, then what? It will be some considerable time for certain before the Commissioner can get round to examining them.
Here I point out a further advantage which exists in clause 48, the counterpart of which does not appear to exist in the English restrictive practices legislation. I refer to the right to a preliminary conference. This principle seems to have been lifted wholly out of the United States legislation where, under the terms of the Sherman Act and the Clayton Act, there is a stipulation conference when the parties get together and concessions are extorted - literally - by the anti-trust division of the Attorney-General’s Department. But in the Bill this provision has been turned round somewhat and has been made much softer in its impact. In the United States the parties before the commissioner for restrictive practices can present the agreement for examination by the tribunal. When the parties are called together they are asked whether they want to continue their practices, if in the opinion of the commissioner those practices need examination. If the parties choose to back down at that stage they are subject to no penalty of any kind. That is a privilege that does not exist in the terms of the English legislation. I can conceive of no other alternative to registration in the terms outlined.
.- I think it is time that some common sense and realism was brought into the debate. All difficulties that occur are not in regard to agreements but because of snide trade practices. If the aggrieved people reported to the Commissioner, he would take sufficient action to correct the wrongs. In regard to registration of agreements, I remember a prosecution in England some four years ago when a company pleaded that to comply with the Act it would require a clerical staff in excess of that needed to carry on its normal business. One can see that these examinable agreements are going to frustrate the Commissioner and that no good purpose will come from them. What we want to get at in order to assist those people who are in the smaller classes of trading to get a fair deal are the snide trade practices. I appeal to the Attorney-General (Mr. Snedden) to endeavour to make this Bill as simple as possible. We have not given to industry and commerce the code of ethics that we think they should follow. We have not set out in a form that is easily understood those practices that we believe are not good and that we believe are against the public interest. We should have mentioned these things in this Bill and I appeal to the Attorney-General to give serious thought to the amendment moved by the honorable member for Moreton.
– I would not have risen but for what was said by the honorable member for Cunningham (Mr. Connor), who apparently does not yet understand the British Act. Perhaps somebody will correct me if I am wrong, but I understand that under the British Act there is no provision for compulsory registration of all agreements. As I understand the British Act, the Board of Trade is given power to determine the dates upon which various classes of agreement shall become registrable.
– There is a blanket requirement.
– For certain trades, but not for all. There is no requirement to register every agreement.
– If that is the only point the honorable member is making, I am about to explain the position.
– There is another point. As I understand the English Act, it does not make failure to register a criminal offence but it does make failure to comply with a notice from the Registrar that an agreement must be registered a criminal offence. There is a great difference between that and what is implied by clause 43. I should like the Attorney-General to say whether little suburban agreements are included in the phrase “ implied or informal “ because it seems to me that under the present definition every butcher, baker and candlestick maker will be dragged within the compass of this measure. I do not think that is either necessary or desirable.
– There has been a very wide debate on this issue. That is not surprising because it relates to the central theme running through the legislation. If I may briefly transgress your ruling, Mr. Chairman, I should like to reiterate that central theme. The central theme of the legislation is examination. Nothing is unlawful prior to examination. Only after examination can any act be unlawful, and then it can be unlawful only prospectively.
– Is not non-registration unlawful?
– Non-registration is not unlawful. It was under the earlier proposals of my distinguished predecessor, which were announced in the House by the present Minister for Shipping and Transport (Mr. Freeth), as Acting Attorney-General. It was proposed then that non-registration would render an activity unlawful. Nonregistration of an agreement is an offence. The offence is that of failing to register.
– That is what I was saying.
– That is not what the honorable member was saying. The honorable member was saying that it was unlawful. There is a very big distinction between the two terms. The honorable member has argued that non-registration could be unlawful. That is not so. The unlawfulness to which he refers applies to the act done in pursuance of the agreement. There is no unlawfulness of an act done pursuant to an agreement which the parties have failed to register. It is an offence not to register.
As I have said, the central theme of this legislation is examination. In order to make the examination, the Commissioner must have information. He can get that information in two ways. He can get it by registration, or he can get it by investigation. Those are the only two ways in which information can be obtained. I do not think anybody would con tra vert that. What is being put in the debate is that the Government should adopt a mid point between the two courses. I hope to demonstrate to the Committee that there is, in reality, no mid point.
What is put is that there should be no need for registration prior to the Commissioner calling upon somebody to register an agreement. The reality is this: An investigatory process is quite suitable to a criminal process. Indeed, in a criminal process we do have an investigatory process. When an offence is committed, somebody investigates it. The registration procedure is one which limits the need for investigation. Indeed, it so limits the need for investigation in the United Kingdom that I understand that the Registrar there does not even have a field force in relation to non-registration. Registration there is achieved in a compulsory manner. Let me explain the United Kingdom system. First and foremost, the Act provides that the Board of Trade may require the registration of agreements of a kind. If an agreement is not registered, this is not an offence but the persons who fail to register the agreement are deprived of the opportunity of showing a gateway in respect of that agreement. Consequently, failure to register an agreement renders any action pursuant to the agreement completely unlawful and there is no opportunity for the parties to the agreement to rescue the situation. Contrast, on the one hand, the absolute unlawfulness of an action pursuant to an agreement with, on the other hand, a prosecution for failure to register.
– What are the consequences of the unlawfulness?
– The agreement is against the public interest and, under the legislation, the parties are not permitted to seek to establish a gateway. Under the United Kingdom Act, first of all, the Registrar approves the reduction of competition. Then parties to the agreement are required to prove a gateway. Unless they prove a gateway, then the agreement is struck down as being contrary to the public interest. If a party fails to register an agreement, he is precluded from the opportunity to show the gateway.
– What is the penalty? Is it that the practice is outlawed?
– The penalty is that the practice is outlawed. The contrary position under this Bill is that there is a requirement to register and if the requirement is not fulfilled, then there is a prosecution for failure to register. But, irrespective of whether the prosecution succeeds or fails, the parties to the agreement will still have the opportunity to say to the Tribunal: “ This is not contrary to the public interest.” I think that is a far preferable method.
– The Attorney-General does not seem to recognise that the English Act misses the trivial agreements.
– I will come to that point. The honorable member claims that the English provisions miss the trivial agreements, but they do not. The statements that have been made during this debate about trivial agreements have not been correct. It has been suggested that this provision operates against the small businessmen, but let me make this clear. It operates against any businessman who has an agreement the terms of which relate to prices, concessions, outlets, output or boycotts, if the agreement is between a competitor and himself. The small businessman is just as likely to be party to such an agreement as the big businessman, so for this purpose there is no point in drawing a distinction between the big and the little businessmen.
– But is there a point between–
– Order! The honorable member for Mackellar has already spoken twice on this clause. He has also interrupted the Attorney-General on two or three occasions. The Attorney-General has given him the courtesy of replying and I suggest that the honorable member for Mackellar hear the Attorney-General in silence.
– The debate on this clause has ranged over two aspects. First, it has related to the amendment moved by the honorable member for Moreton (Mr. Killen) and, secondly, it has concerned the compulsory registration of agreements. At present I am dealing with the compulsory registration of agreements, because this is the major point. It is necessary, as a fact-finding process, to have registration of agreements or, alternatively, it is necessary as a fact-finding process to have investigation. If honorable members look at clauses 103 and 104 they will see that the power of the Commissioner in respect of obtaining information is strictly, and deliberately, limited, because the Commissioner has no part whatever in the enforcement procedures of this Bill. The Commissioner’s functions are only to maintain the register and to take those agreements and practices that he thinks are contrary to the public interest before the Tribunal. The Commissioner can in writing require information from a party and he must be answered in writing. Contrast that limited power with a police power, which is the power of interrogation orally of an individual party. There is a distinct difference between the powers.
I have had the opportunity of some discussions with the honorable member for Sturt (Mr. Wilson), but we are still in disagreement. We are both aiming at the same thing, but have different attitudes. He said that to remove the compulsory registration provision would not alter the essence of the Bill, because the Commissioner could, if he received a complaint - or even if no complaint were made - require information that would amount to the registration of the agreement.
– He could call for the production of documents.
– Yes. Let me refer again, as I did when replying to the second reading debate, to a typical registration under the British procedure. I have four documents which come from a trade association. Not one of these documents was specifically drawn up for the purpose of registration. The documents comprise three pages, two pages, one page and one page with two columns of figures respectively. They were taken out of a file and there was no special preparation, so it can hardly be said that their production would constitute a burden. The honorable member for Sturt said that the Commissioner did not need compulsory registration because he could call for the documents. If he calls for the documents we depart from registration as a fact-finding process and revert to the investigatory process, because if someone makes a complaint that he is the victim of a trade practice agreement the Commissioner, after receiving the complaint, calls upon the party to register the agreement and it necessarily follows that the Commissioner must be in a position to ascertain the true facts of whether or not the agreement registered is the agreement that was in operation and pursuant to which the parties were acting at the time the complaint was made. The necessary consequence is that there would be an investigatory process built on top of the registration process if we had registration after complaint.
The honorable member for Sturt said that in the course of his research he discovered that there have been 30,000 registrations under the Common Market agreement. This is an interesting point, because it has two aspects. The first is that the Common Market agreement is the most recent trade practice mechanism that has been constructed in Europe. It is, as we all know, the combined agreement of six member countries. Each of those countries came to the conclusion that there should be control of harmful trade practices. The method of control that they chose was compulsory registration. The United Kingdom has a compulsory process. The United Kingdom got at it in a more indirect way than does this Bill, but mark my words the effectiveness of it does not in any way reduce its force, and any party to an agreement who neglects to register the agreement when called upon is forever foreclosed from showing public interest. So the modern trend is for examination and compulsory registration. Regarding compulsory registration, in this Bill there is the secrecy of the register to protect those who register pursuant to the obligation from the prying eyes of inquisitive people.
The honorable member for Sturt said that there have been 30,000 registrations under the Common Market agreement. Article 85 of the agreement requires the registration of vertical practices as well as horizontal practices. It requires the registration of bilateral arrangements and, most important, it requires the registration of individual transactions which are effected pursuant to the agreement. For this reason one would expect the number of registrations to be excessively high in our terms.
The United Kingdom experience has been that about 3,000 agreements have been registered. My expectation is that our experience will not be greatly different because our terms are essentially the same.
It has been suggested that this provision will be harmful to little people. This is tied up with the amendment of the honorable member for Moreton and with clause 91. The honorable member for Moreton says: “Let it be a defence that a person believed on reasonable grounds that the agreement was not registrable “. What is put by the honorable member for Moreton in support of that is that if the person goes to a lawyer and gets advice, this should be reasonable grounds-
– No, I did not say that.
– Well, if he goes to a lawyer. Does the honorable member say that? This is what I understood the honorable member to be putting.
– I am sorry that my argument has not been understood.
– That is what I understood the honorable member to be putting. The honorable member for Mackellar (Mr. Wentworth) drew a distinction between Queen’s Counsel and a barrister. But, of course, what is also important and germane is that it may not be Queen’s Counsel or a barrister but a bush lawyer from whom the advice is sought and one certainly would not want to see a defence to this clause on the grounds of reasonable belief requiring the court to make a judgment as to the competence of the person who gave advice. This would be an extraordinary departure and a great inroad on the principle of law, maintained over the centuries, that ignorance of the law is no excuse. There is already an inroad in the defences that are there.
The honorable member for Mackellar pointed to section 16 (1.) of the English provision in which the phrase “without reasonable excuse “ appears. I do not carry in my mind any judicial interpretation of this provision because I believe it has not been judicially interpreted, but I am quite satisfied from my examination of it that the words “ without reasonable excuse “ would not constitute a defence if the reasonable excuse alleged was that of having gone to a lawyer and got advice.
The honorable member for Chisholm (Sir Wilfrid Kent Hughes) has been concerned about clause 91 and what we describe as the small suburban man. First, what has been criticised is the arrangement or understanding, whether formal or informal and whether expressed or implied. Two honorable members have asked for an explanation of what an informal implied understanding is. The word “informal” adds nothing because if it is implied it will be informal. So what we come down to is: What is an implied understanding? This wording has been looked at and there is the pretty good authority of Lord Justice Diplock, who dealt with this particular point in the English legislation. I have here a copy of the report of the Registrar of Restrictive Trading Practices to the British Parliament for the period 1st July 1961 to 30th June 1963 in which he deals with this very issue. The illustration he gives is -
There you have an implied understanding. 1 know that the honorable member for Chisholm is in favour of this legislation. It is this particular point that worries him. It is said that the businessman would have difficulty knowing what an implied understanding was. I have no doubt that unscrupulous businessmen would have no difficulty whatever in evading this legislation in its entirety if the only thing which the Tribunal could look at was a formal agreement. I have no doubt whatever that the unscrupulous businessman would be alert to that very quickly. The consequence is that if he ceases his agreement but continues to act pursuant to it on the understanding that everybody else will act likewise, that is an implied understanding. The informality of it is the mere fact that it is oral.
It has been said that ‘this provision would operate to the disadvantage of the small man. I cannot for a moment accept that claim. My experience is that the small man has constantly been asking for this legisla tion. Further, to suggest that the small man would be affected by this particular requirement of registration is not real. It is said that if a small businessman had a cup of tea with another small businessman, he would have to search his recollection to see whether an agreement was implied.
– He would have to register it.
– No. If he had an agreement or an implied understanding with another businessman whereby they agreed to prices, then he would have to register, but the argument is that a small businessman is more likely to have an arrangement on prices with his competitors than is anybody else. I. cannot accept that argument. It is contrary to experience. A small businessman does not have more arrangements on prices with his competitors than do big businessmen. Therefore, if there is any doubt about the requirement of registration there will be no difficulty in carrying out the registration. The act of registration is a very simple process. The Commissioner will have no right to refuse to accept a document which is forwarded to him. As for searching one’s recollection to see whether there is an understanding, as the honorable member for Parkes (Mr. Hughes) pointed out, it is not a matter of searching one’s recollection to see if there is anything in the past. What one does is examine his activities today to see whether what he does today is pursuant to an agreement. If it is, and it relates to the five categories, it is registrable. I think that the experience of other countries and the experience that Australia will have will amply demonstrate to all honorable gentlemen that compulsory registration in the way it is formulated in this Bill will be the most efficient fact finding method and the one which business itself would prefer, because business would much prefer to register when registration is simple and secret than to have an investigatory process, especially when the Commissioner in an investigatory process would be put in the position of investigating pursuant to a complaint and making selections of which area of business and which person in business would be the targets of his investigation. For all these reasons I think the amendment should not be accepted and the clause should pass.
.- I will notlong delay the Committee. I ignore the persiflage that came from the lips of the honorable member for Grayndler (Mr. Daly). I ignore also the extraordinarily silly political remarks of the honorable member for Cunningham (Mr. Connor). He completely distorted my argument.
– As for the honorable member for Wills, if brains were water he would represent Ayers Rock. The honorable member for Cunningham completely distorted my argument. My argument dealt with a simple point. Even the AttorneyGeneral himself has not comprehended my argument. The point is this: Clauses 35, 36 and 91 prescribe what shall constitute an agreement. I have submitted that there is a grave area of doubt as to whether an examinable practice could in fact constitute a registrable agreement. That is my point and nothing else. It does not demolish the Bill. Whether we make the penalty £1,000 or £10,000 is irrelevant. All I am concerned about is that no person should be immediately condemned because he has made an honest and genuine mistake. The Attorney-General claimed that I had argued that if a person seeks legal advice, ergo that should be a defence. I argued nothing of the sort. I pointed to the absurdity that, if a person obtained advice to the effect that it was an examinable practice and not a registrable agreement, that would not avail him. I have not clamoured for that to be made a defence. I have merely pointed to the fact that it does not constitute a defence. Clause 35 bespeaks of two people being in a competitive position. Nowhere in the Bill is competition defined. What is a competitive position? This is left by and large to the discretion of the Tribunal and this is the dominant complaint that I have against the legislation. It reeks of discretion. Some people may be prepared to endorse a system of an administrative, sub-legislative tribunal that has all these discretions but is not readily susceptible to proper control by the courts or answerable to the Parliament. If that is their political philosophy, they can have it; it is not mine. I come back to the argument of the Attorney-General that we can embrace either a system of registration or an investigatory process. He turned to clause 103 and said: “ This is, of course, limited “. With the greatest of good will to my honorable and learned friend, it is not limited if the Commissioner has reason to believe - this is his discretion and it is not immediately open to control - that a person can give him a document. He can summon the person for that document to be presented and, if the person does not present it, he exposes himself to a fine of £500 or three months in goal. It is limited as to penalty, but it is not limited in terms of propounding a principle.
My point is a short one and I am very sorry that some members of the Committee have misunderstood it. It is simply that there can be a grave area of doubt as to whether something is an examinable practice or a registrable agreement. All I am asking is that, where that doubt arises, the person should be able to say: “ I believed on reasonable grounds that it was not a registrable agreement”. Then he would have to lead evidence to show that he did in fact have reasonable grounds - reasonable grounds that would be acceptable to a court of law, not merely an opinion tendered to him by a practising member of the legal profession.
The last thing I say - I say it only by way of pinpointing its irrelevance - is that under the United Kingdom position a person cannot avail himself of any gateway if he fails to register. Here it is an offence if he does not register and he faces a fine of £1,000. If an individual is put in that position through inadvertence, through honest mistake or through a belief, well founded but, in the viewof the Tribunal, erroneously founded, that he did not have to register an agreement, the Government says to him: “We will fine you £1,000, but, cheer up, you can still go along and argue before the Tribunal that this is not a registrable agreement”. That is poor consolation. For the reasons I have given, I propose to divide the Committee on this amendment.
Question put -
The amendment (Mr. Kitten’s) be agreed to.
The Committee divided. (The Chairman - Mr. P. E. Lucock.)
Majority .. ..82
Question so resolved in the negative.
.- As I have made perfectly clear, I am opposed to clause 43 because I regard it as an unwarranted interference with commerce and industry. I regard the clause as quite unnecessary for the implementation of the desirable principles of a bill to stop practices contrary to the public interest. I have pointed out that the inclusion of these provisions will virtually make the Act unworkable and impractical. So many agreements will have to be registered that the registry will be completely cluttered up with them. I believe that the expense of legal and administrative fees to industry will be a complete loss to Australia.
I do not want to hold up the Committee. It has made it perfectly clear that it wants this interference with trade and industry, therefore, apart from registering my pro test to the whole of Part V, relating to compulsory registration, I will not take up the time of the Committee any further. I propose to vote against this clause, which is the vital clause in Part V. I will register my vote by my voice. I will not call for a division as the Committee seems to have made its intentions clear, but if a division is called for I will vote in division against the clause.
.- I merely want to say that I support, and wholeheartedly endorse, the remarks of my colleague from Sturt (Mr. Wilson), and will take similar action. I am only sorry that we divided before and not on what is really the issue in the whole of part V dealing with compulsory registration. I am also sorry to have to say that the Attorney-General (Mr. Snedden) has not satisfied me that compulsory registration will improve the Bill. I think that the Bill is a good one and that it should go through, but I submit that the compulsory registration provisions are a detriment to the Bill, and I will vote accordingly.
Clause, as amended, agreed to.
Proposed new clause 43a.
.- The Committee has made it quite clear that it wants agreements registered, and that it wants particulars of those agreements to be supplied when required. The Committee has also made it clear that it wishes failure to supply particulars to be an offence. Some honorable members opposite have asserted that all those features are what one would expect in a police state. I am not going to be deterred by that allegation, because if one accepts it, then the overwhelming majority of the Committee - all the members of the Labour Party, all the members of the Country Party and a considerable majority of members of the Liberal Party - are supporting a police state. I propose to move an amendment, which has been circulated in my name, to make the provisions of the Bill complete. I move -
That the following new clause be inserted in the Bill- “43a. - (I.) Where any particulars have not been furnished as required by this Act, every person Who 1 is guilty of an offence by reason of the non-furnishing of the particulars is subject to a continuing obligation to furnish those particulars, which obligation continues until he or some other such person has furnished the particulars. “ (2.) A person who makes default in compliance with his obligation under the last preceding subsection is guilty of an offence punishable by a penalty not exceeding Two thousand dollars for each week during which the default continues.”.
The Committee has provided that it shall be an offence to fail to supply particulars of a registrable agreement. A penalty of up to 2,000 dollars can be imposed for such a failure. If, however, a conviction is imposed for that offence and a penalty of any amount up to 2,000 dollars is imposed then there is no continuing offence at all. It is perfectly permissible to decline to give the particulars once one has been fined for failing to provide them. Accordingly, I propose that there shall be a continuing offence for failure to provide particulars.
The amendment which has been circulated in my name has been drafted, like the other amendments, by the Parliamentary Draftsman whose services were made generously and willingly available to me and my colleagues in this House and in the other place by the Attorney-General.It would be appropriate for me, and I am anxious to acknowledge the AttorneyGeneral’s co-operation in providing this expert assistance and the co-operation of the Parliamentary Draftsmen in drafting the amendment. The House and the country is fortunate in having men of the capacity of our draftsmen. I have not but I could have made this acknowledgment in all my comments in the Committee stages of this Bill.
The former Attorney-General, Sir Garfield Barwick, intended that it should be a continuing offence to refuse to register or to refuse to supply particulars. He also intended that it should be illegal to carry on a practice which was not registered even if that practice was not in fact to the detriment of the public. I quote from the elements of his scheme incorporated in the speech made on his behalf three years and one day ago by the then Minister for the Interior, the present Minister for Shipping and Transport (Mr. Freeth). Under the heading “Effect of Registration or NonRegistration “ the Minister for Shipping and Transport stated -
It is to be unlawful and an offence to engage in any of the abovementioned practices, or to agree to engage in any of them, unless there is a registered document which fully describes the practice to be engaged in.
Again, in this speech, it was stated on behalf of Sir Garfield Barwick, that it will be an offence - to carry on a practice within list A unless a document covering that practice is, and remains, registered. In addition, failure to register such a document would be an offence.
Later on, again on behalf of Sir Garfield Barwick, the Minister said -
But if a practice falling within list A is carried on without a covering document being registered, the persons involved will be immediately liable to criminal prosecution and, on proof by the Crown in the ordinary way, of their having carried on the practices, will have no defence of absence of public detriment available. To be able to justify one of the practices in list A there must be a covering document registered.
In the document which the Attorney-General made available to honorable members comparing this Bill of last May with the proposals of Sir Garfield Barwick of 6th December 1962, the difference in the two sets of proposals concerning failure to register is set out. Under this Bill failure to register is stated in this document as being -
An offence - but agreement remains lawful until found contrary to public interest.
Under Sir Garfield Barwick’s proposals of three years ago, this document states that failure to register was -
An offence to carry on an unregistered registrable practice - and in addition the practice to be illegal.
This is a significant departure in this Bill from the original proposals made by Sir Garfield Barwick. It is a very empty threat to say to a large company that it will be subject to a penalty of 2,000 dollars if it fails to supply particulars of a registrable agreement. Honorable gentlemen on the Government side - the vocal eight who voted against the principal clause itself - have constantly referred to small businesses and the burden to small businessmen in having to seek the advice of senior counsel and to prepare a host of documents. The only cliche which they forewent was sympathy for the widows who would be harried in this way and the orphans who would be driven out of business. The big businesses, of course, will not be menaced by a penalty of 2,000 dollars for failure to supply particulars. Once they have been fined, even if the fine is 2,000 dollars, they will be able to carry on the practice without any risk unless or until the trade practices Tribunal issues an order to cease and desist.
Until that time - and the proceedings may take months or years - they will commit no offence in failing to supply the particulars.
There is no other restrictive practices legislation in the world, I believe - whether in Canada, where such legislation has been in force for 76 years, the United States of America, where it has been in force for 75 years, or, since the last war, in Great Britain and New Zealand, France, West Germany and the European Economic Community, all trading and industrial countries with which we compare ourselves - where there is not provision for a continuing penalty when people fail to provide information in accordance with the law. This Bill requires people to register agreements and to provide particulars where required. Once they have failed to do so then they are subject to one single prosecution, one single penalty or fine. Clearly Sir Garfield Barwick’s proposals should have been implemented on this point, as on so many others. The amendment which I have moved will effectuate the principle which he proposed three years and one day ago.
– Mr. Chairman, the Government cannot accept this amendment for two reasons. The first is that what is proposed by this amendment is really quite extraordinary. I have heard of continuing penalties after conviction but this amendment proposes continuing penalty before conviction. The consequence is that as the amendment is drawn - and this is not a drafting foible, it is the policy intended by the Deputy Leader of the Opposition (Mr. Whitlam) - if the requirement to register on the 30th day after the making of the agreement, or the 30th day after the coming into force of that part, is not fulfilled, then for each and every week thereafter the person is liable to a penalty of 2,000 dollars.
– Not exceeding 2,000 dollars.
– Well, the person is liable to a penalty of 2,000 dollars. So, if some set of circumstances entitled him to exculpation under the clause we have just been dealing with, he would really be up for money if he were prosecuted for the offence a year later. He would then be liable to a fine of 104,000 dollars. There would be an awfully big temptation for him to defend himself to his utmost, as no doubt he would. This sort of prospect is just not possible of acceptance. Let me put that aside for the moment because I do not think the Deputy Leader of the Opposition has seen the significance of what he is putting in his amendment.
Let me go back to the essential point. The Deputy Leader of the Opposition says that if a person is once prosecuted that is the end of the matter. Of course, to some extent, that is true. Once a person is prosecuted, that is the end as far as prosecution for failure to register is concerned. But it is not the end in terms of examination before the Tribunal of the very agreement in respect of which he has been prosecuted. At that point of time the matter can go before the Tribunal. For those reasons, Mr. Chairman, the Government does not accept this amendment.
– I believe that nothing illustrates the difference between the Government and the Opposition as much as do the approaches to this clause. The Government, very rightly, objects to the proposition put forward by the Opposition. The Government may not have seen the implications of the clauses in this Part of the Bill, but at least its intentions are good. The Opposition really wants a police state. The Opposition believes-
– This is not relevant.
– Order! I point out to the honorable member for Mackellar that this is the third occasion on which the Chair has suggested to him that remarks along these lines are not relevant to the Bill.
– Very good, Mr. Chairman. I refer now to the differences between the British and Australian practices. I believe that this matter is very relevant to the amendment that is before us and shows further the oppressive nature of the amendment. Under the British legislation, if two or three traders, or a group of traders, come together in a trivial and ephemeral agreement and do not register it, no offence is committed. It may be that the agreement cannot be enforced or becomes unlawful if attention is directed to it, but that is irrelevant in regard to trivial and ephemeral agreements.
Under this legislation, as it stands, if a few traders come together, as they do every day, and make an agreement between themselves about prices - perhaps the agreement is to last for only two or three days - they are guilty of an offence if they do not register that agreement. Perhaps the AttorneyGeneral has not realised the great difference between the British and Australian practices in that regard. In the British practice there is no real impediment to these trivial and ephemeral agreements. No offence is committed if they are not registered. It may be that by failure to register they become unenforceable. That is probably true. But does that matter? The people who are party to them are not affected.
Under this legislation, as it stands and according to the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam) which seeks to strengthen it, groups of small business people who come together to make these trivial and ephemeral agreements - thousands of these agreements are made everyday in Australia - will be guilty of an offence if ‘they do not register their agreements. That offence carries the severe penalty that is set out in clause 43, which we have just passed and could carry the even more severe penalty that the Deputy Leader of the Opposition wants. As I have said, these ephemeral agreements are quite common. Most small businessmen and most small shopkeepers enter into them very frequently - in fact, many times a year each.
Sitting suspended from 6 to 8 p.m.
- Mr. Chairman, I should like to continue to put the arguments stating why I oppose the Opposition’s proposed amendment, which will exaggerate penalties. It is, I think, obvious that the Government does not intend fierce penalties to be exacted for nominal offences. But nevertheless I believe that we should not write into this Bill any provision under which fierce penalties could be imposed for nominal offences. It will be seen that under the terms of clause 43 as it has just been passed there will be no defence of good faith available and even the most trivial nominal offence will be subject to the heavy penalties already provided for and the even heavier penalties proposed in this amendment. Let us suppose that we have two women at a church fete selling tomatoes from rival stalls and one says to the other: “ What are you selling tomatoes at?” The other stall holder may reply that she is selling at ls. 6d. per lb. The first woman may say: “ I proposed to sell at ls. 3d. per lb. but I shall bring my price up to yours “. Technically, this would be an offence to which there would be no defence under the terms of this measure.
– It would be subject to a fine of £1,000.
– The persons involved would be liable to a fine of £1,000 for committing this technical offence. Nobody supposes that there will be, under the administration of this Government, a fine of £1,000. But we know what the Labour Government in New South Wales did to small shopkeepers. If there is a change of administration, this kind of provision could be very dangerous in the hands of a bureaucracy. So I suggest, Sir, that we should have another look at the matter. I hope that the Government will look at the whole matter again when the measure is brought before the Senate, because the present proposal is wrong in principle. I voted against this sort of thing earlier today and I am convinced that I voted correctly. It is wrong in principle to provide a heavy penalty for a nominal offence that cannot be avoided. In this respect, the Bill now before us differs from the British practice. I cannot emphasise this sufficiently to my friend, the AttorneyGeneral. Under British practice entering into these trivial, ephemeral, day to day agreements does not constitute an offence. Under the United Kingdom act a practice can be made unlawful and parties to an agreement can be made to discontinue it. But by the very nature of things, most of the short term, ephemeral, day to day agreements about which we are talking are not such as are likely to be declared unlawful at some future date. They will evaporate by next Wednesday, shall I say, in any event. So the British measure is a commonsense one. It does not provide even a nominal penalty for these small, technical, trivial violations.
The CHAIRMAN (Mr. Lucock).Order! I suggest that the honorable member is now dealing with subject matter really relating to clause 43, which has already been agreed to by the Committee, whereas the amendment proposed by the Deputy Leader of the Opposition relates to continuing failure to register rather than specifically to penalties.
– What I am dealing with, Sir, is the fiercely increased penalty that the proposed new clause will, impose. This is the aspect of the proposed amendment to which I am directing my attention and with which I am dealing in stating my reasons for opposing it. I am afraid that behind the Deputy Leader of the Opposition’s proposal there is a whole philosophy of bureaucracy. Earlier today, Sir, you appeared to think that I should not have used the phrase “ police state “. I would not use such a phrase if you ruled it out of order. However, in my view that phrase rightly describes the kind of thing that the Opposition is striving for, rather wilfully, because it loves bureaucracy. Opposition members are Socialists. The Government, I think, has fallen in some respects unwittingly into the error of supporting bureaucratic practices without understanding them. I ask that we reconsider this vital question of the protection of the small man who enters into a trivial, ephemeral, day to day agreement which would be in violation of the Bill and which would incur even heavier penalties for continuing violation as proposed in the amendment. I believe that we should stick firmly to the principle that we should not put into the hands of a bureaucracy that we cannot control, even though we believe that it will not exercise such power, the power to impose these savage penalties on little people.
.- Mr. Chairman, having listened to the honorable member for Mackellar (Mr. Wentworth) and hearkened to his strictures on the Opposition’s proposed amendment, and having examined the provisions of the Australian Industries Preservation Act, particularly section 4, I believe that we might very well borrow the words of Warren Hastings and say that we stand amazed at our own moderation. Section 4 of the Australian Industries Preservation Act was enacted in 1906 in a different age and under different dispensations. That section provides that a person who enters into a contract or engages in a combination in restraint of or with intent to restrain trade is guilty of an offence and is liable to a penalty of £500 for each day during which the offence continues. That would be the equivalent of £2,500 per day at present. I emphasise that this is a penalty per day and not per week as provided for in the proposed amendment submitted by the Deputy Leader of the Opposition (Mr. Whitlam).
I think it may be fairly said that this Government is fossilised in its whole approach to penalties. If the corporation lawyers in other parts of the world wanted to see a living example of a fossilised approach to restrictive trade practices they could well examine the structure of this Bill, with particular reference to the leniency of penalties, and the general attitude this Government takes to the whole question of restrictive trade practices. The provision of a penalty of £1,000 for an offence does not mean that this penalty will be imposed for every offence. The honorable member for Mackellar is wringing his withers over the small shopkeepers. In the most unlikely event of any of them being prosecuted this penalty would not conceivably be imposed in every instance. Anyone who suggests that a maximum penalty of this order would be imposed in such a case impugns the good sense and the sense of justice of the magistracy and the judiciary in the various States and the Commonwealth.
I do not advocate punishment for its own sake, but there is need for a deterrent. Australia lags behind all modern industrial countries and all major advanced commercial countries in its approach to this problem. I list in particular the diminution of penalties already apparent. These should be taken into account in determining whether the Opposition, in the terms of the proposed amendment, is asking for an excessive penalty. Let us just catalogue the diminutions of penalties and restrictions already provided for under the terms of this Bill. Firstly, the Australian Industries Preservation Act is to be repealed. Secondly, and in particular, the sanctions imposed by section 4 of that Act, which I have just mentioned, are to be removed. Next, we have the general abandonment of the Barwick proposals for penalties for the carrying on of restrictive practices. Then there is the further escape hatch provided under the terms of clause 48. Next, the Register of Trade Agreements is not to be open to public scrutiny. There will be no direct access to the Tribunal by aggrieved persons except by application for an interim order to cease and desist where they are being seriously hurt. Generally the penalties proposed are of the lightest conceivable nature. On the question of their adequacy I want to make another point.
Let us consider the case of a major corporation, a monopoly which is guilty of monopolisation within the meaning of the Act and which controls and dominates a third of the economy. Is it to be suggested that a firm of that magnitude will be deterred by one penalty of £1,000? Let us take the situation where deliberately the corporation takes a calculated risk and chooses not to register an agreement but to carry on a practice which will be prescribed by the Act. A penalty of this type is infinitesimal. It will have no deterrent effect whatever. But in addition there is a complete abandonment of the Barwick proposals. Let me quote the precise words of Sir Garfield Barwick on this point as they have special application. Under the Barwick proposals if someone failed to register an agreement within the terms of the legislation there were to be two penalties, one for the non-registration of the agreement and another one for carrying on the prohibited practice. At page 7 of a report of his address to the 13th Legal Convention of the Law Council of Australia, Sir Garfield Barwick said -
On the other side of the picture - and this is one Of the occasions of the use of the criminal law - there is a prohibition under criminal penalty of carrying on a practice in this list without a document having been lodged. A businessman caught carrying on such a practice without registration has no answer. He cannot show that his practice is not harmful. It is felt that this is a justifiable use of the criminal law -
The emphasis is Sir Garfield’s - because the method of avoiding the breach is so simple - register. If a businessman wants to be perverse and completely unco-operative he must take the consequences.
The Attorney-General has suggested that in this case it would not be a court which was imposing the penalty; but I want just to point out that the functions of the Commissioner of Trade Practices will be unique. There will be no counterpart for the Commissioner. He is to be an artefact of this Government and there is no counterpart for him. There will be also a separate Registrar of the Tribunal, whereas there is only a Registrar under the terms of the English legislation. This man will be omnipotent. He will be vested with special powers and many of his investigations will be similar to interlocutory proceedings in the case of common law jurisdiction. For that reason I would say that any flouting of his authority should be properly met with a condign punishment.
I do not want to delay the Committee unduly, but I suggest that quite apart from anything else there is an absolute escape hatch being provided for the wrongdoer under clause 48, because the utmost penalty that can be visited on the defaulter under the terms of this clause is one single penalty of £1,000. At the worst, if he does choose to register and before he ever faces the Tribunal, he, and his colleagues also, must under clause 48 confer with the Commissioner and discuss with him the appropriateness of withdrawing and of mending their ways. If he does that, that is the end of the matter. He has complete immunity from the consequences of his flouting of the legislation. I do not think there would be anything clearer than the suggestion of my Deputy Leader in the terms of the proposed amendment.
Proposed new clause negatived.
Clauses 44 and 45 - by leave - taken together, and agreed to.
In this Part, the expression “ is contrary to the public interest” shall, so far as necessary, be read as including the expressions “was contrary to the public interest” and “would be contrary to the public interest “, and other expressions relating to the public interest shall be similarly construed.
.- I move -
Omit “and ‘would be contrary to the public interest’ “
I do not press the matter and I certainly do not press the matter in terms of seeking a division of the Committee. However, the provision as it stands at present bespeaks a circumstance looking in future. I wonder how we can legislate for a happening in the future. If the Committee refers back to clause 35 (2) it will find that the Government and the Attorney-General recognise the difficulty of looking forward because there the Attorney-General sought, and the Committee agreed, to strike out the words “or are likely to become”. Here I am seeking to strike out the words “ and would be contrary to the public interest”. I put it to my honorable and learned friend that the sentiments are on all fours, particularly in terms of looking prospectively. Both of them bespeak, in their original form, of something that will happen in the future. I submit to the Committee that it is quite impossible to legislate for something that might happen in the future. I do not know what the Attorney-General’s reaction to the amendment may be; nevertheless, I move it.
– The Government does not accept this amendment. It feels that it is necessary to include these words because there could be circumstances in which a practice which has ceased or an agreement which has ceased could be brought before the Commissioner. It is therefore necessary to have the future tense.
Clause agreed to.
Clause 47. (5.) In instituting proceedings under this section, the Commissioner shall file a document giving, as fully as he is able, particulars of the relevant agreement (if any) and of the restriction or practice to which the proceedings relate, but so that any particulars that are set out in a registered documents may be given by appropriate reference to the Register.
.- I move-
After sub-clause (5.) insert the following subclause - “ (5a.) Where proceedings have been instituted under this section, the Commissioner shall cause notice of the proceedings, together with a copy of the document referred to in the last preceding sub-section, to be served, as prescribed, on every other party to the proceedings.”.
The purpose of this amendment is to make sure that the Commissioner gives due notice to the parties who will appear before the Tribunal. The reason for the words as prescribed is that there could be a grievance in which there are a great number of parties and in which there may be representation of a group of parties by an individual person or an individual association. I am sure that the Committee will find this amendment acceptable.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 48. (1.) The Commissioner shall not institute proceedings under the last preceding section unless he has first carried on, or endeavoured to carry on, either personally or through members of his si arl with adequate knowledge of, or experience in, industry or commerce, consultations with the persons who would be the other parties to the proceedings, or with representatives of those persons, with a view to securing such undertaking or action by those persons, for or by way of determination, cessation or variation of the agreement or practice concerned or otherwise, as will render the proposed proceedings unnecessary. (2.) In connexion with consultations under the last preceding sub-section, the Commissioner may agree to apply to the Tribunal for leave to file a certificate under section 59 of this Act in respect of any restriction or practice or proposed restriction or practice.
.- I move-
At the end of the clause add the following sub-clause - “ (3.) Where a person (other than the Commissioner) taking part in consultations under this section indicates his wish that the consultations, or any part of the consultations, be on a ‘ without prejudice ‘ basis, evidence of any statement, admission or offer made by any person (including the Commissioner) in the consultations, or in that part of the consultations, as the case may be, shall not be admitted in proceedings before the Tribunal under this Act or under a complementary State law except with the consent of all parties to the proceedings.”.
The purpose of this amendment is to insert a new sub-clause (3.). This clause deals with consultations between the Commissioner, as to whom they are mandatory, and the parties, as to whom they are optional, in relation to matters. Representations have been put to the Government and the Government has accepted that the parties who are asked by the Commissioner to consult with him, or who seek of their own volition to consult with the Commissioner, will be able to do so on a without prejudice basis. That is the proposal which is incorporated in my amendment. I am sure the Committee will find it an acceptable amendment.
Amendment agreed to.
– I move -
At the end of the clause add the following subclause: - “ (4.) In connection with consultations under sub-section (1.) of this section, the provisions of section 103 and section 104 shall be of no effect.”
The effect of this amendment is to ensure that the powers contained in the provisions of clauses 103 and 104 will not bear upon consultations that take place between the Commissioner and the parties prior to the approach of any matter before the Tribunal. Prior to the amendment moved by the Attorney-General, these proceedings were not without prejudice; that is to say, as the Attorney-General has stated, it would have been open for the Commissioner, to have disclosed before any subsequent proceedings before the Tribunal, all of the details of the consultation between the Commissioner and the parties.
I submit to the Attorney-General that it is completely opposed to the spirit of an amicable arrangement between the Commissioner and any party to proceedings that that party should have any consciousness of the tremendous powers resident within clauses 103 and 104 bearing upon him. I should like to read clause 103 because I think it is deserving of at least passing contemplation if not a complete understanding. It reads - (1.) Where the Commissioner has reason to believe–
That leaves it much in his hands - that a person (including a corporation) is capable of giving information or producing documents relating to matters that constitute, or may constitute, an examinable agreement or examinable practice, he may, by notice in writing, require that person -
The field is very wide. If a person fails to comply with the notice under this provision to the extent that he is capable of com plying with it, or, in purported compliance with such a notice, knowingly furnishes information that is false or misleading, he becomes liable to a penalty of £500 or three months’ imprisonment.
I submit that there is substantial ground for excepting the Commissioner from resort to these powers until such time as the preliminary discussions have been concluded. Once the discussions have been concluded, it is open to the Commissioner to resort to these powers. I shall not trespass on the time of the Committee to offer any criticism or examination of the virtues or vices of the powers as such. What I am immediately concerned with is that the Commissioner should not have resort to these powers until such times as the parties have said, in effect: “The gate is closed. We are now prepared to go before the Tribunal.”
I hope that the Attorney-General will see his way clear to accept this amendment and so put parties to any discussions with the Commissioner in the position of knowing that no heavy artillery is going to be ranged against them until such time as their discussions have been completed.
– The Government does not propose to accept the amendment.
Clause, as amended, agreed to.
Clause 49. (1.) In proceedings under section 47of this Act, the Tribunal, after such inquiry as it considers appropriate having regard to the matters alleged by the Commissioner, if it is satisfied that an examinable agreement exists or has existed, or an examinable practice has been, is being or is proposed to be, engaged in, shall make a determination by which it -
.- by leave - I move -
I am hoping that these amendments will draw from the Attorney-General something more than a desultory rejection. I trust that the honorable gentleman and possibly the Committee will be persuaded, cajoled, en. couraged or prevailed upon at least to consider some of the implications. The clause as it is presently worded means in effect that the Tribunal determines its own jurisdiction. As the Committee, I hope, is tolerably aware by now, the singular complaint that I have about this legislation is that it reeks of discretions given to the Tribunal. I fail to see why the Tribunal should be given this discretion with relation to jurisdiction.
As it stands, the clause says that the Tribunal, after such inquiry “ as it considers appropriate “, having regard to the matters alleged by the Commissioner, “ if it is satisfied “ that an examinable agreement exists, or has existed, shall make a determination “ in accordance with its opinion “ and so on. Apparently we have now reached the rather ugly soporific state where these discretions seem no longer to disturb either the consciousness or the physical makeup of people but, be that as it may, we are giving this Tribunal, which is not readily susceptible to control or regulation by the courts, and which is not answerable to Parliament, powers to determine what sort of inquiry it shall embark upon, and I submit that it is up to the Committee to pause and to reflect upon that. There may be those who take the view that this is not of very great significance, but I would suggest with great respect that the words of Lord Esher, Master of the Rolls in: “The Queen versus Commissioners for Special Purposes of the Income Tax”, reported in 21 Queen’s
Bench Division, sum up the whole substance of clause 49. Lord Esher said -
When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.
That is precisely what we are doing in terms of clause 49 of this Bill. Lord Esher went on -
When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision–
I interrupt the citation to say there is no appeal in this case - for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
I have said my piece on this. I hope no person in this Parliament or outside it will be under misapprehension at all as to what is meant by the provisions in clause 49 relating to discussions. They mean that the Tribunal may embark on any inquiry it sees fit to embark on. It may consider that an examination of a host of what would be to most persons highly irrelevant facts is necessary. Once it determines that such an inquiry is appropriate, that is the end ofit. These are the discretionary phrases beyond which it is quite impossible - immediately impossible - to control or to regulate the Tribunal. I have said it before, and I will say it possibly ad nauseam, that while I understand the philosophy behind this I have no sympathy with it at all. It is certainly the fashion of our age but it is a fashion that does not appeal to me one iota.
– The Government does not accept any of these amendments. Clause 49 (1.) states-
In proceedings under section 47 of this Act, the Tribunal, after such inquiry as it considers appropriate . . .
The first amendment is to delete the words “after such inquiry as it considers appropriate” whereas, quite clearly, the words ought to remain. The words have to be interpreted within the context of the legislation as a whole. It would not be within its power for the Tribunal to embark upon an exercise of its own foreign to the legislation. The clause continues -
The honorable member for Moreton (Mr. Killen) proposes to eliminate the words “ if it is satisfied “. It is necessary to invest that power in the Tribunal, for no other body is erected for that purpose. The Tribunal is erected for that specific purpose and it is necessary, therefore, to retain those words.
The third amendment relates to paragraph (b) in clause 49 (1 .). This paragraph states that the Tribunal shall make a determination by which it - determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest. . . .
It is necessary to limit the Tribunal to making its determination in accordance wilh its opinion because sub-clause (2.) states -
Where the Tribunal makes a determination under this section, it shall state the reasons for its opinion that the restriction or practice is, or is not, contrary to the public interest.
The words proposed to be eliminated - “ in accordance with its opinion “ - should not be eliminated because the Tribunal is required to make a determination in accordance with its opinion, which it is required to state. By reason of a later Government amendment it must record that opinion as part of the proceedings of the Tribunal. The Government therefore does not accept the amendments.
– I move -
In sub-clause (2.), after “state”, insert “, and record in the records of the Tribunal,”.
I have referred to this amendment already. Not only is the Tribunal required to make a determination in accordance with its opinion, but it must record that opinion in the records of the Tribunal. This amendment’ is inserted primarily for the safety of third persons to transactions, and I am sure that the Committee will agree with it.
Amendment agreed to.
– I move -
Omit sub-clause (3.), and insert the following sub-clause - “ (3.) The Tribunal shall not find that a practice of monopolisation is proposed to be engaged in unless the Tribunal is satisfied that the person or combination concerned is already, within the meaning of section 37 of this Act, in a dominant position in the trade in goods of the particular description concerned, or in the supply of services of the particular description concerned, in Australia or in a part of Australia.”.
The Committee will recall that I expressed an apology for using the jargon “ a line of trade or commerce “ and the Parliamentary Draftsman prevailed upon me to change that expression in accordance with representations. This is a consequestial amendment which eliminates the term “line of trade or commerce” and substitutes a more precise term. I suggest that the Committee accept the amendment.
– The question is, “ That the words proposed to be omitted stand part of the clause “.
Question resolved in the negative.
.- I move -
In proposed sub-clause (3.), omit “ the Tribunal is satisfied that”.
I think this is a completely unnecessary provision for reasons I have adduced before. I do not propose to spell them out again but I am not conscious of any intelligible reason why the Tribunal should have the discretion that now resides within this clause.
Amendment upon proposed amendment negatived.
Original amendment agreed to.
Clause, as amended, agreed to.
Clause 50. (1.) In considering whether any restriction, or any practice other than a practice of monopolization, is contrary to the public interest, the Tribunal shall take as the basis of its consideration the principle that the preservation and encouragement of competition are desirable in the public interest, but shall weigh against the detriment constituted by any proved restriction of, or tendency to restrict, competition any effect of the restriction or practice as regards any of the matters referred to in the next succeeding sub-section if that effect tends to establish that, on balance, the restriction is not contrary to the public interest. (2.) The matters that are to be taken into account in accordance with the last preceding subsection are - (3.) In considering the public interest in relation to a practice of monopolization, the Tribunal shall weigh against any detriment (including detriment constituted by any proved restriction of, or tendency to restrict, competition) that has resulted, or can be expected to result, from the practice any effect of the practice as regards any of the matters referred to in paragraphs (a) to (f) of the last preceding sub-section if that effect tends to establish that, on balance, the practice is not contrary to the public interest.
Mr. SNEDDEN (Bruce - AttorneyGeneral [8.36]. - I move -
After “ restriction “, fourth occurring, insert “ or the practice “.
This is where I get an opportunity to reciprocate with the Draftsman. This is a drafting amendment. The words “or the practice” should be included. I am sure the Committee will find this amendment acceptable.
Amendment agreed to.
.- I move -
In sub-clause (2.), omit “ are to “, insert “ may
With your leave, Mr. Chairman, I propose to move the amendment circulated last Friday by my friend and colleague, the honorable and learned member for Parramatta (Mr. Bowen).
– Are you appearing with him?
– Does the honorable member for Moreton desire to move the two amendments together?
– No, Sir. I am citing it for the sake of the convenience of the
Attorney-General so that he will not be caught without notice on this matter. I ignore the jibe of the Deputy Leader of the Opposition. One thing is certain, if I appeared as his junior I think I would have to do all the work, quite apart from carrying all the books.
– If you got two-thirds of the fee it would be all right.
– Yes, but I would insist on having it in before I started to work for him.
I am completely puzzled by this most extraordinary clause. We come now to what one may call the Mediterranean of the Attorney-General’s claim that we are establishing a sub-legislative tribunal. I would unhesitatingly agree with my honorable and learned friend, because if ever there was a collocation of words and sentiments, here it is in clause 50. We are handing over to a tribunal, to decide, anything concerned with small businesses, with exports, or with capital investment. Name it, it can be found within clause 50. This is all without control and without regulation by anybody. I suggest that the Deputy Leader of the Opposition turn round and confront the physically benign gentleman from Grayndler (Mr. Daly) and ask him: “Tell me, Fred, what are the needs and interests of consumers? “ And then turn to the friend on his immediate left, the honorable member for Macquarie (Mr. Luchetti), and say to him: “Now, Antonio, give forth; you tell me. Would you say he is right?”
– Mr. Chairman, I rise to order. The Committee is discussing a most urgent, pressing and important matter dealing with the future of this nation. I suggest that buffoonery of the kind engaged in by the honorable member is completely out of order and that his remarks should be addressed through you, Sir.
– Order! I suggest that the honorable member for Moreton take note of the comments made by the honorable member for Macquarie. The honorable member for Moreton will assist the Committee if he addresses the Chair.
– I get the message. I am sorry that such super-sensitivity has infested the Opposition. I invite you, Mr. Chairman, to turn round and invite the Deputy Leader of the Opposition to name 2 or 20 people on his side of the chamber who could find one minute area of agreement as to the meaning of the provision in clause 50, because I submit that we are here dealing with a host of labels quite beyond explicit expression. It is all very fine for honorable gentlemen opposite to shrug their shoulders and turn their eyes towards heaven as though heaven could help them on this occasion. It will not.
– Why does-
– More than prayers would be needed in the case of the honorable member for Griffith. The millennium will need to arrive before we can help him. In clause 50 we are, by words, giving the Tribunal quite a sizable control of this country’s economy. I have listened to the singularly appropriate laudatory comments passed by the honorable member for Werriwa (Mr. Whitlam) and the AttorneyGeneral in relation to the drafting staff of the Attorney-General’s Department. I would, with respect and humility, join with th-i honorable member and the AttorneyGeneral but, in terms of meaning, clause 50 is strikingly reminiscent of the character who described the girl as being vogue from the neck down and vague from the neck up. When you come to this clause you find that it is quite impossible to get a meaning. One could indeed turn-
– Anyway, it is the first use of the expression “knowhow” in a statute.
– Possibly. If one is not consoled by the vogueness or vagueness of this clause, let us turn to “ Alice in Wonderland”. I invite the Attorney-General to spell out. what he understands is the meaning of the phrase “ the needs and interests of small businesses “. You would not find two people in the whole of this country who would have a common mind upon such a vague description. You would not find two people who would be in agreement on the requirements for the promotion of new enterprises. One is left to fall back on the passage in “ Alice in Wonderland “ which reads - “If there’s no meaning in it”, said the King, “That saves a world of trouble, you know, as we needn’t try to find any”;
This is precisely the case with this Tribunal. In terms of any examinable agreement or practice, which can affect large and substantial industries in this country, we are saying to the Tribunal: “ We leave it to you. We wash our hands of it “. Even the former Attorney-General was not unconscious of the danger of this. This is an argument cited by Professor Maureen Brunt, and goodness knows, she is a red hot trade practices artist if ever there was one. She cites the former Attorney-General’s argument in his Robert Garran oration in which he said -
There is, of course, no denying that restrictive trade practices give rise to very many complex issues, and it is certainly not an easy matter for Parliament to lay down, in advance, precise and comprehensive guidelines or directives which will appropriately provide for the resolution of these issues in all the varying circumstances by the mere, as it were, mechanical application of those guide lines or directives. The temptation for Parliament to pass legislation which is couched in general terms, and to leave the application of those general provisions to the Courts, is, therefore, great indeed. But, while such a course is the easy way out for Parliament, it makes, to a considerable degree, the Judiciary rather than the Parliament, the law-making authority.
Substitute “Tribunal” for “judiciary” in this case and you have a precise description of what we are doing in clause 50. Some may say that what we are doing does not matter very much. So be it, but we have now reached this splendidly tranquilised state in which we do not seem to worry much which of the powers belonging to the Parliament are now abandoned. For my part, I think clause 50 is manifestly in error in its composition. My amendment is aimed particularly at the absurdity of the Tribunal having to run through the whole of the provisions of clause 50 on every occasion when it comes to consider an examinable agreement or an examinable practice. This is a nightmare. I suggest to the AttorneyGeneral that it is completely unnecessary to fetter the Tribunal with this requirement. I am seeking to provide that the Tribunal “ may “. This will take away the essential requirement that the Tribunal “must”. I submit that the case on this count, quite apart from any other considerations, is well established.
.- I would like the Attorney-General to explain what he means in clause 50 by the words “ tendency to restrict, competition “. To me “ tendency to restrict “ is a very vague and wide term. Paragraphs (a), (b), (c), (d) and (e) of sub-clause (1.) of clause 35 refer to restrictions every one of which specifically restricts competition. Therefore I submit that every agreement must come before the Tribunal. There is no question of tendency.
.- The speech of the honorable member for Moreton (Mr. Killen) was interesting but the honorable member ignored the fact that the clause to which he takes exception sets up a process which is very akin to arbitration. The unions have been confronted with a court similar in structure to the Tribunal over many years without any indignation being expressed from gentlemen opposite. Arbitration tribunals, like this Tribunal, take into account decisions in equity. They must take into account vague concepts such as the public interest in fixing wages. They must take into account all these kinds of generalisations. If you like to pursue the subject of coercive powers, arbitration tribunals have powers to seize books and records and to do all sorts of things in relation to trade unions. They may inquire searchingly into union affairs. We have reached the stage where our free enterprise Government has become concerned at the kind of practices against which this Bill is directed. The expressions used in sub-clause (2.) of clause 50 seem to me to be the kind of expressions which set up a process in equity very similar to that of arbitration. Every point that the honorable member makes in indignation at the idea of business being subjected to this process could, with equal force, be applied to arbitration. With regard to the honorable member’s statement that the subordinate body becomes a law making body, I direct the honorable member’s attention to the fact that subordinate bodies in the form of arbitration tribunals have also been law making bodies and also bodies which have made determinations which have affected the economy very deeply. I do not see that any point that the honorable gentleman made against the principles in clause 50 could not with equal force be made against the process of arbitration.
Mr. WENTWORTH (Mackellar) comments of the honorable member for Fremantle (Mr. Beazley) about the Commonwealth Industrial Court, although in that case the guide lines are, I think, more definite. The Court is dealing with a much more refined field. However, there is some substance in the point he made. It may be that in that case there is no alternative, but two wrongs do not make a right. It is true that in this provision we will be handing over a substantial part of our law making power. The matters referred to in subclause (2.) remind me of the well known litany in the Commonwealth Electoral Act, which requires Distribution Commissioners to give due consideration to “community or diversity of interests “. This can be exactly what the Commissioners want it to be. In this Bill, we pretend to give guide lines. In point of fact, everything is included here. It can be made to mean anything, everything or nothing. We are divesting ourselves of a considerable part of our law making power. I say this with some regret and sense of inadequacy because I am afraid that I cannot submit a constructive alternative that would fit into the framework of the Bill before us. I look at theBritish Restrictive Trade Practices Act of 1956. I think the relevant provisions are sections 6 and 21. The British Act is far more specific and the definition is far better. But it is not perfect. Although the British Act may not fit entirely into the framework of our scheme, the British Parliament has managed to do this rather better than we have. I say with some regret that I have no constructive alternative to submit. I feel that we are giving away our law making powers to this extent. I admit the force of what the honorable member for Fremantle has said. His argument cannot be brushed aside lightly. However, I would like to see some kind of control kept by this Parliament. I do not quite know what is the appropriate way to do this, but perhaps the Attorney-General can think of a better provision than the one now in the Bill.
– This clause occasioned the Cabinet a great deal of consideration. I hold the view very strongly that it is a very well formed clause. The amendment moved by my honorable and learned friend from Moreton (Mr. Killen) is that the words “ are to “ be omitted and the word “ may “ inserted. If his amendment were accepted, the clause would read -
The matters that may be taken into account in accordance with the last preceding sub-section are -
I have had the opportunity to consider this amendment in quite some detail, because the honorable gentleman was good enough to talk to me about it. I think this is an instance in which I understand what he has in mind and I think he now understands what I have in mind. The words that are proposed to be omitted must stay, because we could not leave the Tribunal at large to decide whether it would take these matters into account. The words of the provision must be mandatory and therefore they must remain as “ The matters that are to be taken into account “. The honorable member for Isaacs (Mr. Haworth) asked what is meant by the words “ tendency to restrict “.
– In a consideration of clause 35. Clause 35 is a guide, I understand.
– Yes. We could, for instance, have a situation in which an agreement has the effect of a boycott. Until the boycott comes into operation, it does not effect a restriction of competition, but has a tendency to restrict competition, because on the happening of specific events it will come into operation. Therefore, it has a tendency to restrict competition and that is the reason why the provision must be put in this form.
.- I think my friend, the honorable member for Fremantle (Mr. Beazley) on reflection will agree that his comparison between clause 50 and the provisions relating to the basic wage are not on all fours. We are dealing with two entirely different bodies. During the honorable gentleman’s absence, the current running through all my complaints has been that here we have an administrative tribunal which is made up of a presidential member, who is a judge, and two lay members. They decide an issue on the basis of a majority. However, in the determination of the basic wage, we do not have precisely the same circumstances.
– I was not talking about basic wage determinations. I was talking about arbitration procedures.
– That is possibly so. but I venture to put to my honorable friend that nowhere in the guide lines - to use an expression that has now come into our lexicon - would we find any reference to small businesses, industrial know-how, exporters, proprietors and investors. These are all vague labels and it is impossible for any two people to agree on their interpretation. This is why I believe that clause 50, being so vague, will open up the machinery to a great deal of difficulty in determination.
– I cannot let the inaccurate comments of the honorable member for Moreton (Mr. Killen) go unchallenged. The honorable member for Fremantle (Mr. Beazley) was perfectly correct in drawing the analogy that he did. The Commonwealth Industrial Court has the right to examine the contract that exists between a union executive and its members, and the examination of the contract takes the form of an examination to determine whether the contract is unlawful or oppressive or unjust. These tests - oppressive or unjust - leave such an enormous area in which to swerve, so to speak, that the Court can virtually do whatever it likes. Thanks to the Court’s interpretation of the terms “ unjust “ and “ oppressive “, union rules-
– Order! I think the honorable member for Hindmarsh has now made his point and is developing an argument on a matter that is not before the Committee.
.- I want to make a small contribution to this discussion and to direct the attention of the Committee to a comment made by Professor Richardson in the “Canberra Times” of Thursday, 11th November last. Referring to clause 50, he said - the Government has placed the determination of vital questions of policy affecting the structure of the Australian economy in the hands of the tribunal.
The matters to which the tribunal must refer (specified above) in gauging the effects of a restriction are so widely drawn that the tribunal may work out its own policies.
I would like to place on record a comment that was made by Stevens and Yamey in their work on restrictive practices. This book was published in 1956. I quote from page 140. Referring to the English Restrictive Practices Court, they said -
The failure to appreciate the nature of the judicial process led Parliament in 1956 to commit to the judges the type of tasks which even American judges, far more accustomed to handling matters of an economic and political nature, would assume were beyond their competence. The Restrictive Practices Court is called upon to make the type of decisions the Supreme Court has insisted are ‘ value choice(s) of such magnitude’ that they are ‘beyond the ordinary limits of judicial competence. The Restrictive Practices Court is required to indulge in “some ultimate reckoning of social or economic debits and credits” to determine which agreements are “ beneficial “. It is left to the Court to distinguish between the “benign” and the “malignant”. In achieving these ends the Restrictive Practices Court is required to involve itself in a process of evaluation and decision-making which does not appear to be peculiarly suited to the judicial process or casually related to the peculiarities of legal logic or legal relevance.
That is the cul-de-sac in which the Government finds itself in pursuing its course of repealing the existing legislation, which was patterned on the United States anti-trust legislation and which could have been more adequately applied to the problems of the Australian economy.
– I move -
In sub-clause (3.), after *’ competition “, insert “or resulting from any proved undue advantage taken in imposing prices or other terms or conditions of dealing”.
This amendment was circulated last Friday in the name of the honorable member for Parramatta (Mr. Bowen). In relation to public interest in clause SO the Tribunal has, despite the vagueness of the provision, tolerably - I put it no stronger than that - specific instructions so far as competition is concerned, but when it comes to consider monopolisation as spelt out in terms of clause 37 (1.) (c), the position is different. This is a provision where prices or other terms or conditions are imposed because a person is in a dominant position in a line of trade. There is no such guideline available to the Tribunal whatsoever in relation to that. It may be contended, of course, that in the word “detriment” there is inherent a direction, but I submit that it is not specific nor is it clear.
Clause 37(l.)(c) as it stands is neutral and so embraces both those who may be engaging in wrongful and those who may be engaging in innocent practices. The amendment would give to the Tribunal an indication that, as far as monopolisation is concerned, it was cases where a person engaged in competition which resulted in proving an undue advantage through imposing prices or other terms or conditions of dealing that were to be struck down. I hope the Attorney-General, after having had an opportunity to consider this amendment over the weekend, can be prevailed upon to accept it.
[9.3]. - The Government does not accept this amendment. I have had over the weekend the opportunity to give very close and meticulous consideration to this matter. The Government cannot accept the amendment because it has written into it a preliminary test which has to be answered before the Tribunal can come to the principal test. But the preliminary test on this occasion will determine the final outcome and will negate the opportunity for the Tribunal to engage upon the primary test it is required to engage upon. If there is a proved undue advantage being taken it is very difficult for anybody to argue to the contrary, because if there is a proved undue advantage there is nothing left to be considered in relation to the public interest. It is for this reason the Government cannot accept this amendment.
.- There are two matters I desire to put before the Attorney-General (Mr. Snedden) in relation to this clause. It has been’ pointed out to me that in reference to the Government’s policy in relation to decentralisation of industry it is often necessary to establish zoning arrangements or certain priorities and preferences to industries proposed to be established in certain areas. Without these special advantages industry could not be established in country areas. I have been asked, therefore, to request the AttorneyGeneral to include as one of the paragraphs of sub-clause 50(2.) the need for decentralisation to be one of the matters that is to be taken into account.
I have also been asked to press for another paragraph to be included, namely one dealing with the national interest. It has been pointed out to me that during the First and Second World Wars it was necessary for Australia to provide food for herself and for her allies. That necessitated establishing industries in many country towns in Australia. For instance, flour mills were established throughout Australia, many of which had been closed because of the inability of country mills to compete with others. Many of these flour mills were reopened during the war and went full steam ahead producing food for our forces and the forces of our allies. It has been pointed out to me that unless national interest can be taken into account - there is no provision in Clause 50(2.) for it to be taken into account - it would be possible that industries encouraged to become established in the country in times of war could not be protected after the war. The only way these industries could carry on would be for some zoning agreement, or some priority or preference arrangements, to be effected so that they could supply, for example, flour to a particular zone in a country area.
I am suggesting that two new paragraphs be added to Clause 50(2.) - paragraph (g) dealing with national interest, and paragraph (h) dealing with decentralisation. I put this point to the Attorney-General and today I received a letter from him saying that consideration had been given to the matter and that he was unable to accede to either of the requests referred to in my letter to him. I realise that I would be only wasting the time of the Committee to press this matter any further because it is quite apparent that the Committee is not prepared to agree to some of the proposals that some of us have put to it. I raise these matters but do not press them further unless the Attorney-General is prepared at this stage to change his mind.
Clause, as amended, agreed to.
Clause 51. (1.) Where the Tribunal determines that a restriction accepted under an examinable agreement is contrary to the public interest, the agreement (if in force) becomes, upon the date of the determination, unenforceable as regards the restriction. (2,) Where the Tribunal determines that a practice is contrary to the public interest and finds that the practice is provided for by an agreement, the agreement (if in force) becomes, upon the date of the determination, unenforceable as regards the practice.
– by leave - I move -
Each of these three amendments, if carried, will give greater protection to innocent third parties. I think that the Committee will he quite happy to accept them. The first two amendments, generically, are the same. They are very important to third parties. Then the new sub-clause (3.) is most important. I am sure that the Committee, having had the opportunity to examine these amendments, will recognise their value to third parties.
Amendments agreed to.
Clause, as amended, agreed to.
Clause 52. (1.) Where the Tribunal determines that a restriction accepted under an examinable agreement is contrary to the public interest, the Tribunal may make such orders as it thinks proper for restraining all or any of the parties to the agreement from-
– I move -
In sub-clause (1.), omit “as it thinks proper”.
Under clause 52, as it presently stands, it is competent for the Tribunal to make such orders for enforcing its determination as it thinks proper. This is too wide altogether. I refer to the argument that I have propounded throughout the entire debate: Where Parliament hands over to an administrative sub-legislative quasi-judicial body these tremendous discretions and it is not prepared to fetter the body in any shape or form, then we should not moan when it hits. So far as the orders of the Tribunal are concerned, here this means nothing more nor less than this: If the Tribunal takes the view that it should enforce a determination, say, relating to monopolisation - for example, the Broken Hill Pty. Co. Ltd. may be selling 16 gauge steel at £80 per ton and the Tribunal may say that the price should be brought down to £50 per ton - then that is an order which it thinks proper and that is the end of it. There is no appeal. The order is not readily susceptible of control by the High Court of Australia. This is at the very centre of the argument I propounded. I have been unable, to date, to persuade the Attorney-General or the Government to accept some restraint as regards this discretion; but surely the Government could see its way clear to providing that at least the orders that the Tribunal makes should have some relevance to the matter before it. But as the clause stands at the moment it will be, in my respectful submission, quite open to the tribunal to say: “Well, the sandy haired sales manager of the company must be sacked; this is part of our order.” There is no knowing where an order of the tribunal may take it.
It is all very well to say that the people comprising the Tribunal are as pure as the driven snow and that they are not going to do anything irresponsible. My submission is that the Parliament should not lend itself to approving of any discretion which is not immediately controllable by the courts or answerable to the Parliament. That is the argument I have with respect to amendment No. 17. I will not delay the Committee by repeating it in relation to the other amendments, Nos. 18, 19 and 20, which I have circulated. The same philosophy holds good. It may be despised tonight but I venture the view that there will yet come a day when the people of this country will be prepared to return to it.
.- I must confess that I support the argument of the honorable member for Moreton (Mr. Killen). It seems an amazing thing to include in the Bill such words as “ as it thinks proper”. The orders of the Tribunal either are proper or they are not proper. If the reasoning advanced in respect to clauses 37 and 50 is correct and they are definitions as a guide to the Tribunal, then surely the question is whether or not the orders are proper, not whether the Tribunal thinks they are proper. Surely the right wording should be “ as are proper “. I would have thought that it would be right and reasonable that the words should provide for certainty.
– The Government does not accept the amendment moved by the honorable member for Moreton (Mr. Killen). As to the use of the words “as it thinks proper”, one has to find words which are appropriate. The United Kingdom act uses the words “ such as appears proper “.
– Let us have Australian words.
– The Australian words are in the Bill. The United Kingdom act uses the words “ as it appears proper “ so, as the honorable member for McMillan said, let us have the Australian words.
– Let us have some certainty.
– The honorable member is now shifting his ground.
.- Mr. Chairman, I object strenuously to what the Attorney-General (Mr. Snedden) has just said. He has shifted his ground every time that we have moved an amendment. When it comes to using Australian words in the Bill, what we want to get down to is something that will fit the situation as it is in Australia today. As long as industry is to be hamstrung by all these vague phrases it will be impossible for honorable members on this side of the chamber, who have given a lot of thought to what is going on, to agree with the Attorney-General that we should copy this and copy that. What we want to know is what is going to happen in the future. In these discretionary clauses, as the honorable member for Moreton (Mr. Killen) has said all along, we have removed from the Bill the certainty of knowing what is going on. We are lost in uncertainties which cannot help to define these matters for the satisfaction of industry itself.
.- I move-
In sub-clause (1.), paragraph (a), after “ restriction “ insert “ or any restriction to the like effect “.
It is necessary to insert these words in this sub-clause of clause 52. The words necessarily had to be added to make for completeness. I am sure the Committee will not have any difficulty in accepting this amendment.
Amendment agreed to.
Mr. SNEDDEN (Bruce - AttorneyGeneral [9.19]. -I move -
Omit sub-clause (2.), and insert the following sub-clause: - “ (2.) Where the Tribunal determines that a practice is contrary to the public interest, it may make such orders as it thinks proper for restraining the person concerned, or the combination concerned or any of its members -
from engaging or further engaging in the practice;
from engaging in practices of a like kind; or
from doing acts or things that, in the opinion of the Tribunal, would, unless there were a change in circumstances, amount to, or contribute to, a continuance or repetition of the practice or engagement in a practice of a like kind.”.
The new sub-clause is the same as the old sub-clause with one significant difference and that relates to the dominant position with respect to monopolies. It is provided that this should not be left for determination by a Tribunal different to the Tribunal that made the first determination. I would not think that the Committee would have any difficulty in accepting this amendment, although my honorable friend from Moreton (Mr. Killen) has a consequential amendment.
– The question is, “That the words proposed to be omitted stand part of the clause “.
Question resolved in the negative.
– I move -
In proposed sub-clause (2.), omit “as it thinks proper “.
In my submission, proposed sub-clause (2.) provides for a quite needless discretion. The Tribunal should not be empowered to do in this sphere precisely what it thinks fit.
– The question is, “ That proposed sub-clause (2.) be inserted “.
Question resolved in the affirmative.
.- by leave - I move -
I will not bother the Committee with arguments that I have advanced already today. I simply say that I have long regarded it as being a fundamental constitutional principal that tribunals should be regarded as part of the judicial system of the land under the rule of law. I take the view that these discretions put this Tribunal very much in a compartment of its own, not susceptible to control by the courts and not answerable to this Parliament. One might say that
Shakespeare summed up all of these discretions in these words from “The Merchant of Venice “ -
O dear discretion! how his words are suited.
If ever I were to write an epitaph for this legislation - there will be an epitaph for st one day, although a prophet may not have honour in this place - that would be it. It may suit this Committee, in its present mood, to give the Tribunal these discretions. But I say that the mood of the Australian people will yet be rallied to remove them from the statute book.
– I move -
In sub-clause (7.) after “(7.)” insert “Subject to section 57 of this Act,”.
– The Government will accept this amendment.
– In explanation, let me say that sub-clause (7.) at present reads -
Orders of the Tribunal have the force of law.
That will be mitigated to some extent by proposed new clause 57, to which the Attorney-General will ask the Committee to agree. There may be some conflict between these two clauses if this saving phrase is not inserted in sub-clause (7.). I thank the Government for accepting the amendment. I mention for the benefit of the honorable member for Cunningham (Mr. Connor) that the reason for this amendment lies in the vaguenses of clause 50, to which he rightly drew attention, and therefore to the law-making powers of the Tribunal.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 53 agreed to.
Clause 54. (1.) Where proceedings instituted by the Commissioner under section 47 of this Act are pending and the Tribunal is satisfied that -
.- by leave - I move -
I advance no argument in support of the amendments.
.- I move -
At the end of the clause add the following sub-clause: - “ (3.) The Tribunal may make an interim order of the kind referred to in sub-section (1.) of this section in relation to an alleged examinable agreement or practice on the application of a person who satisfies the Tribunal that, unless such an order is made, that person is likely to suffer grave hardship or irremediable injury, and such an order remains in force, unless sooner revoked, for such period as the Tribunal determines.”.
Honorable members will recollect that under clause 47 the Commissioner of Trade Practices may institute proceedings in the Tribunal where he has reason to believe that an examinable agreement exists and that any relevant restriction accepted under the agreement is contrary to the public interest. Under clause 54 as it stands, where the Commissioner has instituted such proceedings and the Tribunal is satisfied that there may be grave hardship to any person or irremediable injury to the public interest, the Tribunal may make interim orders banning the practice. My amendment would give to individual persons who, in the eyes of the Tribunal, were likely to suffer grave hardship or irremediable injury the right to seek such interim orders.
This is another attempt on our part to restore the essentials of the scheme that Sir Garfield Barwick outlined three years ago yesterday. Honorable members will remember that he proposed that the Tribunal would be open to proceedings at the instigation not only of the Commissioner or the Crown but also of private citizens. Earlier in the Committee stage, my colleagues and I pointed out that rights which private citizens and companies had under the Australian Industries Preservation Act were being taken away because, quite contrary to any proposal by Sir Garfield Barwick, that Act, in all material features, was being repealed. Later in the Committee stage, we will be pointing out that very much more limited remedies will be available to individuals and companies by way of damages than have been available to them under the Australian Industries Preservation Act. We shall be taking steps to have those rights restored to them.
Under the relevant American legislation rights have always been available to individuals and companies. Sir Garfield Barwick proposed that they similarly should have rights under the Australian legislation. The only rights that individuals will have under this Bill will be after the Tribunal has found a practice to be against the public interest and has ordered people to cease it and to desist from it. Until then they will have no rights to damages. Damages can be secured only for any injury subsequent to such an order by the Tribunal. Proceedings before the Tribunal may take many months - in fact, years. During that time an individual or a company may fear grave hardship or irremediable injury. There will be nothing that the individual or the company can do about it. He or it may be driven out of business and be left so bereft of assets as to find it impossible to undertake any other business. Nevertheless, unless the Commissioner chooses to ask the Tribunal to make an interim order nothing can be done to suspend the practice which the Tribunal is investigating. The Tribunal cannot suspend the practice of its own motion. The individuals affected cannot ask the Tribunal to suspend it. The Commissioner is a law unto himself in this matter.
As on some earlier occasions I have some trepidation about trying to restore the essentials of the Barwick proposals. Earlier this evening the honorable member for Moreton (Mr. Killen) had the grace to refer to the fact that even the former Attorney-General was not unaware of the vagueness of clause 50. I never expected to. hear such impertinence in this place. The former Attorney-General submitted quite full proposals to us in this chamber three years ago and the large majority of honorable members expected that they would be embodied in the Bill. The former Attorney-General had had three years- 1960, 1961 and 1962 - to formulate these proposals with the concurrence of his Cabinet colleagues. In the campaigns for the House of Representatives election at the end of 1963 and the Senate election at the end of 1964 no suggestion was made that Sir Garfield Barwick’s proposals would be diluted in any way. It was not until the Bill was introduced just over six months ago that we found that in essential features those proposals were to be diluted. I have already mentioned at the Committee stage the fact that the Australian Industries Preservation Act is being repealed. There was no suggestion by Sir Garfield Barwick that this would happen. There is no complementary legislation by the States. Sir Garfield Barwick said that this was probably necessary and certainly desirable. Again, such practices as monopolisation and predatory pricing are being dealt with much less firmly than was proposed by Sir Garfield Barwick.
– The honorable member has said all this three or four times.
– There are many other features of this Bill which depart from the proposals made by Sir Garfield Barwick. The matter with which we are now dealing involves one of them. Why is it that individuals and companies are to have so many fewer rights under the terms of this Bill than they were to have under the Barwick proposals of three years ago and so many fewer rights than they have under the Australian Industries Preservation Act 1906 as amended on four occasions? Why is it that they are to have so many fewer rights than they have under comparable legislation in the United States of America and Canada - two other countries which have federal systems - and Britain and New Zealand? None of Sir Garfield Barwick’s Cabinet colleagues spoke at the second reading stage or has so far spoken at the Committee stage. Nobody has explained, and still less has anybody justified, the departure from the Barwick proposals.
The Attorney-General, by way of interjection a few moments ago, said that I have said these things before. Probably I have repeated myself less in the debate ou this Bill at the Committee stage than has anybody else in the chamber. However, even if I have said these things before, the Minister has not answered them even once. He has not tried to answer them. We are entitled to know why the essentials of the scheme deliberately put to us three years ago after three years of investigation by Six Garfield Barwick and of cogitation in tce Cabinet have not been put before us now. We are entitled to know why it is that after two elections when nothing was said about these divergences from the Barwick scheme the full scheme was not put before us.
I suggest that the Committee should adopt this proposal. It will be of great benefit to individuals and companies. Some of the dissident members of the Liberal Party on the other side of the chamber this afternoon were making great play of hardship to little businesses. Here we have a clear case in which little businesses could be given an advantage which they would not otherwise have under the terms of the Bill. We need not fear that any large business will not be able to survive the duration of any proceedings before the Tribunal. We have good reason to fear that many small businesses will not have the resources to survive the duration of such proceedings. If honorable members opposite really have any solicitude for small businesses they will support the proposed amendment. It is not one of the Government’s proposals which can be dismissed as something that will usher in a police state. This is in fact a proposal which is in accord with restrictive practices legislation in all other countries and with Sir Garfield Barwick’s proposals submitted to us three years ago.
– Mr. Chairman, the Government does not accept the proposed amendment. The Deputy Leader of the Opposition (Mr. Whitlam) has given us again tonight the litany that we have heard from him several times already. I do not propose to respond to it. I wish merely to use this opportunity as it should be used at the Committee stage and to say that the proposed amendment is quite out of harmony with the Bill. The Committee has already accepted the proposition that the Commissioner of Trade Practices should be the only person who can take a matter to the Trade Practices Tribunal for determination. The amendment proposes that any individual may ask the Tribunal for an interim order. Quite clearly this does not accord with the pattern and ambit of the Bill or with the policy on which it is based. For these reasons the Government rejects the proposed amendment.
.- Mr. Chairman, listening to the AttorneyGeneral I was reminded of the bulletin given on occasions by various surgeons: The operation was quite successful but the patient died. I challenge the Minister to name any country in which there is legislation comparable with this measure and in which there could be a delay greater than the collective delay that will occur under the terms of this Bill when one aggregates the various delaying devices. To begin with we have the unique and ubiquitous Commissioner of Trade Practices who is, to repeat my earlier observation, an artifact of this Government and who will to some extent usurp the functions discharged in the United Kingdom by the Registrar of the Restrictive Practices Court. The AttorneyGeneral is taking advantage of that fact, because, as the measure stands, the poor individual who is being hurt and who has a very real grievance will, unless and until he has gone through all the complicated delaying procedures laid down in this measure, be deprived of the most elementary rights that he possesses in equity. In respect of any tort, any actionable wrong that is committed against him, that individual has a definite right to approach the equity Court and get an interim injunction and to get it on good terms. The AttorneyGeneral is just as familiar with that as is any other legal practitioner in this chamber. Why should not a similar right be given to an injured party because of the wrongs perpetrated on him by people who are prepared to take advantage of all the cumbrous delays provided for in this legislation?
Let us examine them. An examinable agreement has to be registered within 30 days. An extension of this period can be given. A further extension can then be given. The Commissioner will then register the agreement. In the words of the Attorney-General, the Trade Practices Tribunal itself will not be very active and it is not contemplated that its lay members will devote themselves full time to their activities as members. It is contemplated further that the judicial members of the Tribunal will be able to return for part of their time to the bench and their normal work in other jurisdictions. Everything in the contemplation of the Government is for delay. What is to be the position of some small businessman or some small organisation which has been seriously and injuriously affected by a malpractice at which this Bill is ostensibly aimed? Let us take the situation of the small shopkeeper about whom certain of the Government’s own critics were wringing their withers, rending their garments and sprinkling ashes on their own heads. What is to be the position? He will be killed completely. He is treated most callously. Let us look at the terms of the Australian Industries Preservation Act where either the Attorney-General or, with consent, the aggrieved person can apply for and obtain an injunction. Why should not the same right apply here? Why should every conceivable advantage be taken of this special, all powerful personage who is interposed between the ordinary citizen and his ultimate resort to the final Tribunal? It is utterly wrong; it is unfair; it is unconscionable; and it is utterly undemocratic.
.- I move -
At the end of the clause add the following sub-clause: - “ (3.) No order under this section shall be made unless the Commissioner shall undertake to pay to any party restrained damages arising from an order restraining the party where it is subsequently determined by the Tribunal that the agreement or practice was not contrary to public interest.”.
If I may give some sharp intelligibility to this, I say with great respect that in my opinion what was palpably wrong with the previous amendment which failed - I use this merely by way of illustration - was that there was no undertaking on the person who sought an interim order or who was granted it to meet any damages that may arise. I submit that if it had been done on that basis it would have met with a great deal of sympathy. I, for one, would have supported it. But it was not put on that basis. I suggest to the Opposition and also to the Attorney-General that under clause 54 the Tribunal could make a delaying order which could run on for X-months.
I pick up the argument of the Deputy Leader of the Opposition (Mr. Whitiam) and I hope that I can at least wring out of him some measure of consistency on this occasion. If his argument with respect to timetables was valid before, it is valid with respect to this case also. If the Tribunal takes two years to make up its mind and the Commissioner comes in and seeks an order to hold a person at bay, so to speak, for two years and it turns out when the Tribunal has had an opportunity to examine the alleged examinable practice that it is in fact not an examinable practice, that is it not contrary to the public interest, I think it is up to the Commissioner or the Government of the day to meet the costs. I always think it is a grave error to separate power from responsibility. Where we give to the Commissioner tremendous power, as we do under this provision, and no not fetter him with a sense of responsibility, we are laying the way for grave errors of judgment. I submit that the case does not require any greater spelling out. The case is clear and it is substantial. The effect of this amendment would be that no order shall be made under this clause unless the Commissioner shall undertake to pay to any party restrained damages arising from an order restraining the party where it is subsequently determined by the Tribunal that the agreement or practice was not contrary to the public interest. I submit that the amendment is in sharp conformity with a sense of fairness and with common sense.
Clause agreed to.
Clause 55. (1.) Subject to this section, proceedings under section 47 of this Act in respect of an agreement shall relate to the agreement as in force immediately before the institution of the proceedings. (2.) The Commissioner may, where he considers that there are special circumstances that make it desirable to do so, institute proceedings under section 47 of this Act in respect of an agreement as it was in force before a determination or variation that took place before the commencement of the proceedings, if the agreement as then in force was an examinable agreement. (3.) If, while proceedings under section 47 of this Act in respect of an agreement are pending, it is shown to the Tribunal that the agreement has been determined since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings in respect of the determined agreement, but otherwise shall dismiss the proceedings. (4.) If, while proceedings under section 47 of this Act in respect of an agreement are pending, it is shown to the Tribunal that the agreement has been varied since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings -
– by leave - I move -
Honorable members will have clause 55 before them and will see that there is provision in sub-clause (2.) for the Commissioner to require the continuation of an examination by the Tribunal in circumstances where the agreement has ceased. Representations were put that if there are reasons for the Commissioner to want to go on, why cannot the legislation say what those reasons are. That is what the amendment proposes to do. The operative part is in new sub-clause (2a.). Under sub-clause (3.) the Tribunal isrequired by the mandatory word “shall”, if the Commissioner asks the Tribunal to continue proceedings. That has been changed to the permissive word “ may “. Then proposed sub-clause (2a.) states -
Leave shall not be granted under the last preceding sub-section for the institution of proceedings in respect of a restriction unless the Tribunal is satisfied that there are reasonable grounds for believing that the parties, or former parties, to the agreement or any of them have entered into, or are likely to enter into, another examinable agreement, or a further variation of the agreement, under which a restriction to the like effect is or may be accepted.
In other words, the situation under which the Commissioner would want to go on is when the parties had ceased technically for the purpose of avoiding the determination. If that is the reason the Commissioner is now required to establish it before the Tribunal and the Tribunal is given power to grant leave. This is done by use of the permissive word “ may “ in respect of the Tribunal instead of the mandatory word “shall”. I feel confident that the Committee will have no difficulty in accepting these amendments.
Amendments agreed to.
Clause, as amended, agreed to.
– (1.) The Commissioner shall not institute proceedings under section 47 of this Act in respect of a practice that has ceased to be engaged in before the commencement of the proceedings unless he thinks it desirable to do so by reason of special circumstances. (2.) If, while proceedings under section 47 of this Act in respect of a practice are pending, it is shown to the Tribunal that the practice has ceased to be engaged in since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings in respect of the former practice, but otherwise shall dismiss the proceedings. (3.) If, while proceedings under section 47 of this Act in respect of a practice are pending, it is shown to the Tribunal that the practice has been varied since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings -
– I move -
Omit sub-clause (1.) and insert the following sub-clauses: - “ (1.) The Commissioner shall not institute proceedings under section 47 of this Act in respect of a practice unless -
the proceedings relate to a practice that the Commissioner alleges is being, or is proposed to be, engaged in; or
the Tribunal constituted by a presidential member has granted leave to institute the proceedings. “(1A.) Leave shall not be granted under the last preceding sub-section for the institution of proceedings in respect of a practice unless the Tribunal is satisfied that there are reasonable grounds for believing that the person or combination concerned is likely to engage again in the practice or to engage in a practice of a like kind, or that a combination in which that person, or a member of that first-mentioned combination, is or will be included is likely to engage in a practice of a like kind.”.
This, in essence, is the same as the amendment with respect to the last clause except that this deals with practices whereas the previous clause dealt with agreements. All that I said in relation to the earlier amendments remains true of this amendment. It will be seen from proposed clause 56 (1.) that leave shall not be granted unless the Tribunal is satisfied that there are reasonable grounds for believing that the practice is likely to be engaged in at sometime in the future.
– The question is, “That the words proposed to be omitted stand part of the clause “.
Question resolved in the negative.
.- I move -
In proposed sub-clause (1a.), omit “ the Tribunal is satisfied that”.
Again I submit that this is a needless discretion that should not be given to the Tribunal.
.- I move-
In sub-clause (2.), omit “shall”, first occurring, insert “may”.
Again, as 1 said with relation to clause 56, this amendment seeks to substitute the permissive for the mandatory. I am sure the Committee will accept it.
Amendment agreed to.
.- I move -
After sub-clause (2.) insert the following sub-clause - “ (2a.) Where in accordance with the last preceding sub-section proceedings are continued with respect to a practice that has ceased to be engagedin, the Commissioner shall include in his report to Parliament the reasons why he requested the Tribunal to continue proceedings.”.
The purpose of this amendment is clear. It provides that if the Commissioner asks the Tribunal to continue proceedings with respect to a practice that has already ceased, and the Tribunal agrees, then it shall be incumbent upon the Commissioner to state in his report to Parliament why he asked the Tribunal to continue those proceedings. I submit that the provision as it stands opens the gateway for vindictiveness. To put it plainly, if the Commissioner is so inclined, he can engage in wholesale persecution and not in prosecution. I submit that my amendment would be a salutory restraint upon him. I hope the AttorneyGeneral will agree to accept it.
– The Government does not accept this amendment because, as the honorable member will see, the Commissioner has to satisfy the Tribunal in advance that it should go ahead. Therefore, in the opinion of the Government, there is no need to require him to report.
.- I move -
In sub-clause (3.), omit “shall”, first occurring, insert “may”.
This amendment, too, seeks the substitution of the permissible for the mandatory. I am sure the Committee will be able to accept it.
Amendment agreed to.
Clause, as amended, agreed to.
A determination or order of the Tribunal under this Division (other than an interim order) remains in force, subject to Division 3 of Part VI. and to any variation made in accordance with this Division, until rescinded by the Tribunal in accordance with the next succeeding section.
– I move -
Omit the clause and insert the following clause- “ 57. - (1.) A determination or order of the Tribunal under this Division (other than an interim order) remains in force, subject to Division 3 of this Part and to any variation made in accordance with this Division, until rescinded by the Tribunal in accordance with the next succeeding section. “(2.) An order of the Tribunal under this Division is binding only on the persons on whom it is expressed to be binding. “(3.) Subject to the next succeeding sub-section, an order of the Tribunal under this Division shall not be expressed to be binding on a person unless that person, or a person appointed, in accordance with the regulations, to represent that person in the proceedings, was a party to the proceedings. “(4.) Where a trade association, an officer of a trade association or a person appointed, in accordance with the regulations, to represent all or any of the members of a trade association is a party to proceedings, an order under this Division in those proceedings may be expressed to bind all or any persons from time to time acting on behalf of the trade association.”.
The purpose of inserting this clause is to make for greater certainty with relation to the effect of a determination made by the Tribunal. The present clause 57 is in very simple form. It reads -
A determination or order of the Tribunal under this Division (other than an interim order) remains in force, subject to Division 3 of Part VI and to any variation made in accordance with this Division, until rescinded by the Tribunal in accordance with the next succeeding section.
That provision is reproduced as sub-clause (1.) of the proposed new clause 57. The only difference is that “ Part VI “ becomes “ this Part “, in the new sub-clause because it is in fact this part. Sub-clause (2.) of the proposed new clause says -
An order of the Tribunal under this Division is binding only on the persons on whom it is expressed to be binding.
In law, I am quite satisfied that that is the effect of the present clause 57 of the Bill. The proposed amendment makes manifest what was before a question for interpretation of the law. Sub-clause (3.) provides -
Subject to the next succeeding sub-section, an order of the Tribunal under this Division shall not be expressed to be binding on a person unless that person, or a person appointed, in accordance with the regulations, to represent that person in the proceedings, was a party to the proceedings.
In other words, it can bind the parties only. Sub-clause (4.) provides -
Where a trade association, an officer of a trade association or a person appointed, in accordance with the regulations, to represent all or any of the members of a trade association is a party to proceedings, an order under this Division in those proceedings may be expressed to bind all or any persons from time to time acting on behalf of the trade association.
I am confident the Committee will have no difficulty in accepting the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 58 agreed to.
Clause 59. (1.) Where the Commissioner is satisfied that a restriction under an examinable agreement, or an examinable practice, is not contrary to the public interest, he may, with the leave of the Tribunal constituted by a presidential member, file with the Registrar a certificate to that effect, giving particulars of the agreement, and of the particular restriction, to which the certificate relates, or particulars of the practice to which the certificate relates.
At the end of the clause add the following subclause: - “ (6.) In this section - examinable agreement’ includes a proposed agreement that would be, or might be, an examinable agreement; examinable practice’ includes a proposed practice that would be, or might be, an examinable practice; restriction ‘ includes a proposed restriction.”.
The purpose of this amendment is to make clear the meaning of the words contained in clause 59, which deals with a certificate that an agreement or practice is not contrary to public interest. In other words, where there has been successful consultation between the Commissioner and the parties, as provided for in clause 47, the Commissioner takes the matter to the Tribunal, there to say that the agreement or practice is not contrary to the public interest, and to request the Tribunal to so certify. It has been found necessary to give explicit meaning to three of the terms used in the clause. The first of those terms is, “examinable agreement “. To make the position clear, we seek to provide that an examinable agreement includes a proposed agreement that would be, or might be, an examinable agreement. The other two terms defined are “ examinable practice “, and “ restriction “. I am quite sure that the Committee will have no difficulty in accepting this amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 60 agreed to.
Clause 61. (I.) A person who is, or proposes to become, a party to an agreement that is or may be an examinable agreement, or a person who, or a member of a combination which, is engaged or proposes to engage in a practice that is or may be an examinable practice, may apply to the Tribunal constituted by a presidential member for an order under this section in respect of all or any restrictions accepted or proposed to be acceptedunder the agreement or in respect of the practice. (2.) If, on an application under this section -
there is furnished to the Tribunal a statutory declaration by the applicant, or by a person acting on behalf of the applicant and having, in the opinion of the Tribunal, sufficient means of knowledge, by which it is declared that -
– I move-
Omit sub-clause (2.) and insert the following sub-clause: - “ (2.) If, on an application under this section -
the Tribunal is satisfied that the application arises out of a proposal for a new venture, or for a substantial extension of an existing venture, and there is furnished to the Tribunal a statutory declaration by the applicant, or by a person acting on behalf of the applicant and having, in the opinion of the Tribunal, sufficient means of knowledge, by which it is declared that -
the restrictions or practice in respect of which the application is made are or is necessary to the success of the venture, or of the extension of the venture; and
the proposal will not be, or is unlikely to be, carried out unless there is an assurance of the legality of the restrictions or practice; or
the Tribunal is satisfied that -
the application relates to restrictions or a practice in respect of which consultations have been commenced in accordance with section 48 of this Act;
a reasonable period for the consultations has elapsed; and
the Commissioner has neither instituted proceedings under section 47 of this Act in respect of the restrictions or practice nor applied for leave to file a certificate under section 59 of this Act as a result of the consultations, the Tribunal may, in its discretion, by order, direct the Commissioner to take action in accordance with this section in respect of the restrictions or practice.”.
This clause deals with proceedings before the Tribunal when an application for a negative clearance is made. The reason for omitting the present sub-clause (2.) and proposing the insertion of a new one therefor is that we wish to make clear both the nature of the application and the way in which the Tribunal can deal with it. If I may say so, the proposed new sub-clause is well drafted and reads quite clearly. Subclause (1.) of clause 61 relates to a person who is or proposes to become a party to an agreement. It provides that such a person may apply to the Tribunal constituted by a presidential member for an order under clause 61 in respect of all or any restrictions accepted or proposed to be accepted under the agreement or in respect of the practice.
The purpose is to enable the person to bring the matter before the Tribunal for early determination. The term used in the Bill is “ negative clearance”. It is not really a negative clearance; it is really an accelerated hearing. But the term “ negative clearance” has been used very widely in representations that have been put to us. The proposed new sub-clause is sought to be inserted in response to representations put to us and so the term used is “ negative clearance “. The new sub-clause provides -
If, on an application under this section -
the Tribunal is satisfied that the application arises out of a proposal to employ new capital in a new venture, or in a substantial extension of an existing venture; and
there is furnished to the Tribunal a statutory declaration. . . .
That is the same as the old sub-clause. The old sub-clause required that there be investment of new capital either in a new venture or in the extension of the old venture. It was put in representations, which the Government accepted, that capital ought not to be the criterion but that the new venture ought to be the criterion because there could be a situation - and this is a representation which I well remember - where, for example, there could be a mechanised semi-automatic process producing a particular item. Management might decide to change the production of that particular item and go on to another item. It requires no new investment of capital, but it is most important to know in advance that that would be excepted, hence the criterion adopted is “ venture “ as distinct from “ capital “. The remainder of that particular sub-clause is the same. The new sub-clause goes on to state that if the Tribunal is satisfied that -
Consultations could have commenced and could have been proceeding for a considerable period and the parties might want to get some resolution of the matter. Instead of being put in the position of having to wait for the Commissioner to consult with them - time elapsing perhaps to their disadvantage - it was thought they should have the opportunity to say: “ Sufficient time has elapsed for the Commissioner to make up his mind; he has not made up his mind and we want the matter to go to the Tribunal “. I should think that the Committee would find this amendment quite acceptable.
.- I have a query about new capital. I hope that the Attorney-General will be patient with me, but frankly I do not understand why new capital should be singled out. We could get to absurdities. We could have £1 million of old capital which is open to challenge and examination by the Tribunal and £1,000 worth of new capital which is out–
– I am proposing to omit the criterion of capital.
– Could the AttorneyGeneral take my comments with respect to the extension of the venture. I think this is merely a new form of words.
– Does the AttorneyGeneral not see it in that light at all?
– I submit that it is open to question in relation to clause 61 (2.) (a) (i) relating to the extension of the venture. New capital could be involved in this and I fail to see why new capita] should be entitled to these exemptions.
Amendment agreed to.
– I move -
After sub-clause (3.) insert the following subclauses: - “(3a.) Where-
the Tribunal gives a direction under subsection (2.) of this section by reason of the provisions of paragraph (a) of that sub-section; and
as a result of the direction, the Commissioner applies for leave to file a certificate under section 59 of this Act, the Commissioner shall state in his application for leave a proposed minimum period of operation of the certificate, not being less than five years, and, if leave to file a certificate is granted, the certificate filed shall specify that period as the minimum period of operation of the certificate, and an application for leave to revoke the certificate shall not be made before the period so specified has elapsed since the filing of the certificate. “(3b.) Where-
the Tribunal gives a direction under subsection (2.) of this section by reason of the provisions of paragraph (a) of that sub-section;
as a result of the direction, the Commissioner institutes proceedings in the Tribunal in respect of the restrictions or practice to which the direction relates; and
the Tribunal, in those proceedings, determines that a restriction or practice is not contrary to the public interest, the determination shall specify a period, not being less than five years, as the minimum period of operation of the determination, and an application by the Commissioner under section 58 of this Act for leave to apply for recission of the determination shall not be made before the period so specified has elapsed since the making of the determination.”.
These new sub-clauses deal with proceedings before the Tribunal in relation to negative clearances. Parties can apply to the Tribunal for what one might properly describe as an accelerated hearing of a matter. Sub-clause (3.) states -
Where a direction is given under the last preceding sub-section, the Commissioner shall, as expeditiously as practicable, make any necessary inquiries and– do either one of two things. He may either file a certificate under clause 59 - that is, a certificate in which he says it is not contrary to the public interest - or, alternatively, institute proceedings in the Tribunal under clause 47. The amendment inserts new sub-clauses (3a.) and (3b.). Sub-clause (3a.) states -
That is for an accelerated hearing where there is a new venture or substantial addition to an existing venture - by reason of the provisions of paragraph (a) of that sub-section; and -
If honorable members want to follow me they will need to look at my last amendment to this clause -
That is, that he is of the opinion that it is not contrary to the public interest - the Commissioner shall state in his application for leave a proposed minimum period of operation of the certificate, not being less than five years, and, if leave to file a certificate is granted, the certificate filed shall specify that period as the minimum period of operation of the certificate, and an application for leave to revoke the certificate shall not be made before the period so specified has elapsed since the filing of the certificate.
The reason for this provision is that it was strongly represented over a wide range of industry that a company or a person - using “ person “ in the broad sense - could quite easily apply for a negative clearance and succeed. A negative clearance is capable of being reviewed, if there is a change of circumstances. What was put in representations was: “ Yes, but the change of circumstances might happen very quickly. It could not be foreseen, therefore we might have a negative clearance only for six months or a year.” To have true advantage from the negative clearance it is desirable to have a minimum period, so the minimum period is to be five years, although the Commissioner in his application could suggest a longer period, or the Tribunal itself could make it a longer period. I should not think that the Committee would have any difficulty in accepting this sub-clause. Sub-clause (3b.) states -
That is, there is a new venture - by reason of the provisions of paragraph (a) of that sub-section;
That is under clause 47 - in the Tribunal in respect of the restrictions or practice to which the direction relates; and
Then the determination made by the Tribunal shall specify a period not being less than five years. So sub-clause (3a.) takes account of the situation where the Commissioner of his volition goes to the Tribunal and says that it is not contrary to the public interest and sub-clause (3b.) takes cognisance of the situation where the Commissioner has not been prepared to say it is not contrary to the public interest but he goes to the Tribunal which says it is not contrary to the public interest, and a period of five years is specified as the minimum period of operation of the determination. I should think the Committee would have no difficulty in accepting this amendment.
.- I move -
At the end of the proposed sub-clause (3a.) add the following: - “ except where a party to the agreement, or the person engaging in the practice, has accepted a further restriction, or commenced to engage in a further practice, that is relevant to the question whether the restriction or practice to which the certificate relates is contrary to the public interest.”
The amendment seeks to cover the position where a further restriction has arisen or has been implemented during the period for which the exemption has been granted.
– The Government does not accept this amendment because what it intends to cover is already covered, in that if there is a new restriction then the deter-, mination of the Tribunal by way of negative clearance does not operate on it because the negative clearance can operate only on the restriction that was before the Tribunal. If there is a new restriction the negative clearance cannot operate. Therefore, in the view of the Government, the amendment is unnecessary.
Amendment upon amendment negatived.
Original amendment agreed to.
Clause, as amended, agreed to.
A Review Division of the Tribunal shall be constituted by three presidential members.
– I move -
At the end of the clause add the following: - “ , but shall not include the presidential member who heard, or presided at the hearing of, the proceedings in which the determination of which a reconsideration is sought was made “.
The clause is a simple one. Representations have been put to the Government by, among others, some of my colleagues on this side of the chamber - for instance, the honorable member for Moreton (Mr. Killen) made this representation quite strongly - that none of the three members of the Review Division of the Tribunal should be the presidential member of the original Tribunal against whose determination the review is being sought. I am confident that the Committee will accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 63. (1.) Where the Tribunal has made a determina tion in any proceedings, a party to the proceedings may, within the time allowed by or under the regulations and in the prescribed manner, file with the Registrar an application for an order of a Review Division of the Tribunal directing a reconsideration of the determination on any of the following grounds: -
.- I move -
In sub-clause (1.), paragraph (c), after “law” insert “ or of fact “.
We have crossed over the threshold of what is palpably one of the most ridiculous features of the legislation, namely the appeal provisions. I do not know what orthodox jurisprudence the designers of these provisions are steeped in, but with very great respect I have reached the conclusion that they have been drip dried in a very odd one. I venture to say that 20 years ago the right honorable member for Kooyong (Sir Robert Menzies) would have torn the lights and liver out of these provisions. I invite, nay, I challenge the first eleven - the Cabinet of this country - to come into this Parliament and defend the grounds upon which these absurd provisions are founded. There is no disguising the fact that they are quite ridiculous. Not since “Alice in Wonderland” - possibly in the interregnum there has been Gilbert and Sullivan - have we had such an absurd set of review or appellate provisions. One should not use the adjective “ appellate “ because these are not proper appeal provisions. You cannot appeal to the Review Division because an error of fact has been made. I would have thought, as one who at least makes a modest, if not, according to some of my critics, an entirely becoming claim to sensibility and moderation, that if a tribunal of first instance had been in error on a question of fact you should be able to turn to the review division and say: “ Correct this “. But no, you cannot. This was pointed up by none other than the Attorney-General last Friday when, in relation to clause 37 - I use this by way of illustration, Sir, and not by way of revival - I pointed to the fact that if the Tribunal honestly but erroneously decided that oneseventh of the market was equivalent to onethird and the party to the proceedings said: “ You have made a mistake; I have not got one-third of the market; I have only oneseventh,” he could not do anything about it. The Attorney-General interjected and said: “ There will be a Review Division of the Tribunal “. The Review Division could not cure this fault. I am sure that my friend overlooked this at the time. There was the error plain and clear, open to the simplest of Simple Simons to see, but nothing could be done about it.
Can one imagine anything more lunatic - I do not think that is too harsh a word - than to have three presidential members, three judges, and they do absolutely nothing about curing a defect which is measured in terms of an error of fact? A great gulf separates the Deputy Leader of the Opposition (Mr. Whitlam) and me in terms of political philosophy but in terms of common sense and in terms of an elementary approach to reviewing the decision made by the Tribunal, surely my friend could be encouraged to agree with me that if an error of fact has been made by the Tribunal of first instance, the Review Division should at least put itself in the position where it could do something about it. To call this a review division is, I think, to sail the Division under false colours. In my view it is nothing more or less than an advisory body. I ask the Attorney-General: Will it manifestly disturb the principles on which this Bill rests to insert here the words “or of fact “?
I know that some honorable members who sit on the front bench take the view: “We do not want appeals all over the place. We want cheap law. We do not want the country cluttered up with litigation.” I know that that is the sort of thinking to which some honorable members on the front bench have succumbed, but I hope to heaven that the country has not succumbed to it. If you believe that you can get law on the cheap you will get nothing but cheap law. If you find people placed in the position of groaning under a palpable injustice, the whole fabric upon which our society is built is challenged. I submit to the Attorney-General that my amendment does not disturb the basis upon which his measure rests. It simply means, to take the case that I illustrated last Friday and with which the Attorney-General agreed, that if the Tribunal mistakes one-seventh of the market for one-third, the Review Division could say to the Tribunal of first instance: “ This is where you went off the rails; now cure it “. One can give the Committee illustrations. Take the case where a tribunal of first instance dealt with short tons instead of long tons - something quite open for people to make a mistake about. My proposal will not shake the foundations of this Bill but I submit that it would be completely in accordance with our concept of justice and certainly within the understanding of the basis on which we have worked our community for centuries and the basis on which English speaking people have worked to say: “ If an error has been made at first instance, at least let the Tribunal that has made it have an opportunity to correct it”.
.- The criticism launched by the honorable member for Moreton (Mr. Killen) against this clause was couched in what’ must have been the most drastic language used by any honorable member in the course of this debate. Despite all his criticism, the honorable member seeks to add only the words “ or of fact “ to paragraph (c) of subclause (1.) of clause 63. I would have thought that such drastic language would have accompanied at the very least a motion for the withdrawal of the clause. As a layman - probably most of us are in this category - I find it very difficult to understand the phraseology of any legislation, particularly one that is tied up with legalisms as in this Bill. We should be grateful that we have the services of a senior partner of the Sullavan Brothers to put us right on these matters. I do not intend to debate the effect of the honorable member’s amendment, but I cannot allow to pass without comment the bitter attack that he made on the Prime Minister (Sir Robert Menzies). The honorable member said that 20 years ago the right honorable member for Kooyong would have torn the very liver out of this Bill.
– Out of this provision.
– That is right. That statement is made by a supporter of the Government - a supporter of the legislation. How did the legislation ever get into the Parliament, having regard to the criticism made of the Prime Minister by a member of his party? The honorable member further challenged any member of the Ministry to defend this clause. I give the honorable member for Moreton credit for his stand, because no member of the Ministry other than the Attorney-General has been prepared to support any part of the Bill, let alone the clause now under discussion. 1 join with him in asking that a member of the Ministry defend at least some part of the Bill, if not the clause now before the Committee. More in sorrow than in anger and with a certain amount of sympathy, I record the unfortunate fact that the Attorney-General has been left to carry the baby. He has done his job effectively in the face of base disloyalty and sabotage from backbench members on the Government side who do not appear to want this legislation at all. They will not defend the Attorney-General, but it may be some comfort to him to know that I think it is to his credit that, as a member of the Government, he has put before the Parliament proposals to which all members of his party are committed but which they will not support in this chamber.
The honorable member for Moreton has offered a challenge. He has questioned the very integrity of the Prime Minister. How will this legislation ever work if this is the sort of support that the Government is receiving from ite own backbench members? We can imagine the reactions of the people who will be affected by the Act - the poor corner shopkeepers about whom we have heard so much - when the honorable member for Moreton has described it as something from Gilbert and Sullivan or something from “ Alice in Wonderland “. The Australian people cannot be very impressed when they hear these comments made about legislation that has been introduced by the Attorney-General. Surely this type of criticism should not pass unnoticed by members of the Ministry. I also believe that they should be present in the chamber tonight to defend the legisla tion. It is too much to expect, Mr. Chairman, that members of your Party would speak on the Bill. When they sit silent, we suspect that they do not know anything; when they speak, we are sure of it.
We would like to know who on the Government side supports this clause. The honorable member for Moreton does not and, to his credit, he has said that he does not believe in the legislation. It is a far step back from tonight, when he has challenged the Prime Minister to defend this legislation, to the time when the Prime Minister said: “Killen, you are magnificent “. How times have changed. Evidently, the disappointments of not reaching the Ministry have reached out to clause 63.
– Order! I suggest that the honorable member has made his point.
– I do not want to transgress your ruling, Mr. Chairman. I am one who appreciates your wisdom and your tolerance in circumstances such as this. However, I could not let pass unnoticed the comments of an honorable member on the Government side on clause 63, which deals with an application for the reconsideration of a determination. One of the most vital sections of the Bill has been described by a member on the Government side, who is a lawyer, as an “ Alice in Wonderland “ clause, something from Gilbert and Sullivan and something that the Prime Minister would have torn to ribbons 20 years ago.
– The honorable member has already said that.
– I know that honorable members opposite do not like me repeating those words. The honorable member for Moreton challenged the Ministry to come in and defend the clause. He has offered strong criticism of the legislation and I suggest that members of the Ministry ought to support the Bill. Honorable members opposite, who seek to delay the Bill and to sabotage it, should realise that the vast majority of people who are suffering because of improper trade practices want legislation to control those practices. Although this is simply an apology for the control that is needed, it is at least a start and should not be sabotaged by honorable members on the Government side.
.- I am not a lawyer nor am I the son of a lawyer. However, in reading this clause, I do not find myself in anything like the perturbation of mind of the honorable member for Moreton (Mr. Killen), because of paragraph (b) of sub-clause (1.) which states that a review may be made provided - that the determination is of such importance that, in the public interest, it should be reconsidered;
I ask the Attorney-General (Mr. Snedden) whether an error of fact of the kind mentioned by my honorable friend, which bore upon the whole standing of justice as arrived at by the Tribunal, would not in fact be covered by this paragraph and whether this provision does not give a very wide and sufficient ground on which an appeal could be heard on this type of matter.
.- The honorable member for Moreton (Mr. Killen) has, not for the first time, invited me to comment on his comments. On this occasion he has gone further and has challenged the Cabinet to support his attitude. Surely it is a bit late in the day to ask the Cabinet to participate in this debate when no member of the Cabinet spoke during the second reading stage on Thursday or Friday of the week before last, or Tuesday of last week, and when no member of the Cabinet spoke during the Committee stage on Tuesday, Wednesday, Thursday or Friday of last week or has spoken today. Despite his seductive phrases, I have hitherto resisted rising to his request to comment on his comments. There has been a concerted effort by half a dozen or may be eight members - their names appeared in the division list this afternoon - to provoke and protract debate on this Bill. Where no member of the Opposition has spoken on any clause, that group have attacked the Attorney-General or their colleagues or absent members of the Cabinet or the Ministry. Where members of the Opposition have spoken on any clause, that group have confined their attacks to members of the Opposition. But, by all means, they have tried to drag out this debate and bring other people in to speak upon it. Where, as has happened on some occasions, they have all spoken twice, they have still hoped that other people would have been provoked to come in and drag out the debate.
The public is in no doubt now as to the sincerity and genuineness of honorable members on the Government side as regards this legislation. It was promised by the Governor-General in March 1960. The full proposals werelaid before the Parliament three years and one day ago.
– Mr. Chairman, 1 take a point of order. What clause is under debate? This is a second reading speech.
– Has the honorable member not been following the debate?
– The honorable member is not keeping to the clause under discussion.
The CHAIRMAN__ Order! There is no substance in the point of order raised by the honorable member for Maribyrnong. However, I suggest to the Deputy Leader of the Opposition that he has previously put these points to the Committee.
– The honorable member for Moreton blasted the authors of the scheme in the most unbridled terms. He referred to this drip-dried scheme, this lunatic scheme, this “ Alice in Wonderland “ and Gilbert and Sullivan scheme. When one looks at his remedy, one finds it is to insert three words. If the whole concept of the Review Division of the Tribunal is as futile as he would suggest, one would think he would oppose the whole scheme or would propose a more sensible one. The only amendment he has moved is that it should be possible for the Review Division of the Tribunal to reconsider a matter on the ground, not merely that a material error of law was made by the Tribunal, but that a material error of fact was made by the Tribunal. There is indeed very little opportunity in the courts or before administrative tribunals to review facts.If there is no basis in fact or evidence for somefinding by a court or a tribunal, a question of law arises. The honorable member for Moreton seeks to insert a quite unusual provision. He castigates this fatuous Review Division, this lunatic Review Division, this drip-dried Review Division. It has to be given the power, not just to review errors of law but errors of fact as well. Is this a significant improvement? Is it an improvement at all? If the whole proposal is as odious as the honorable member says, it ought to be cut out, liver and other vitals. What a trivial, trumpery amendment he has moved to it. He has known for three years that there would bc no appeal on the ground of fact. He blasts the authors. Let me quote the only begetter of the scheme, Sir Garfield Barwick. On 6th December 1962 a statement of Sir Garfield Barwick’s was laid before the House in these terms -
It is part of the scheme that the Tribunal’s decision should be final and not subject to review or appeal of any kind in point of fact - much of which will be economic fact.
This lunatic, drip dry scheme in this respect was laid down by the principal author Sir Garfield Barwick three years ago! In this respect at least the Bill faithfully implements the proposals that Sir Garfield Barwick made.
One wonders how effective the representations the honorable member for Moreton are outside the House, with members of the Government and in his Party room. One knows that the Liberal Party is at sixes and sevens on the question of trade practices. There is nothing in the Liberal platform referring to restrictive practices or monopoly. The Liberal Parties in the different States and in this Parliament are completely at odds on this legislation. There is no complementary State legislation, and the States which have expressed a view on this legislation have blasted it and said that they will not co-operate with the Commonwealth Government in implementing it. The honorable member for Moreton, if he does find this clause dealing with appeals so absurd or lunatic, has had more than three years in which to press his point of view on the authors of it - on Sir Garfield Barwick, the Cabinet and his masters. This is not the first time tonight that the honorable member for Moreton has reflected in this way on Sir Garfield Barwick. Let me meet the honorable member with a paraphrase of a quotation -
But yesterday, the word of Barwick might Have stood against the world: now sits he there, And none so poor to do him reverence.
.- I think the Parliament is well adjusted to the fact that it is impossible to wring any intellectual honesty out of the honorable member for Werriwa (Mr. Whitlam). But after this thorough-going, pompous and im pertinent performance this evening I think it is up to the honorable gentleman to listen to the music even though he cannot take it. To say that if I thought so poorly of the appeal provisions I should not have moved but one amendment is a complete caricature of the circumstance. I have, in fact, moved five amendments to the appeal provisions. But I would invite the honorable gentleman to laugh off the views of the Law Council of Australia with respect to this. We find the honorable and learned gentleman pontificating, behaving in this pompous fashion and saying: “Why do you want this silly amendment? “ Well, the Law Council of Australia wants it. What does the honorable gentleman have to say to that? I would be very interested to see his demeanour if he were to confront a meeting of the Law Council of Australia and say: “ I think this is a stupid amendment “. The Law Council would cut him down to size and then eat him a chop at a time.
The honorable gentleman said that this was not the first time that I, the honorable member for Moreton, had reflected upon the former Attorney-General. I have done no such thing. If the honorable member’s sense of perception has now dwindled to such a shabby state that he thinks that I have done such a thing, he wrings no apology from me at all. I have done nothing else but use, in a proper and respectable fashion, the arguments that the former Attorney-General used. It ill becomes the honorable gentleman, one who has lived in a lush paddock all his life, to get up here and attack anyone on principles. This goes to the whole gravamen of the honorable gentleman’s case. Principles to him are something to be used whenever the mood or the opportunity suits him. I say to him: You are interested in principles? You get your principles according to each daily newspaper.
– Order! The honorable member for Moreton should address the Chair.
– I have finished with the irrelevancies, but I submit with respect, Sir, that they are as relevant as some of the comments of the honorable member for Werriwa. I come to the question of challenging what is in the legislation. I refer the honorable member for Werriwa to “ The New Despotism” by Lord Hewart. No doubt he despises it today. All Socialists despise it. But what of the injunctions that were given to the English-speaking people by Lord Hewart? Does the honorable member think that he has reached such a position of eminence in the community that he can laugh off the comments of the late Lord Hewart and the warning he gave in his book “The New Despotism”? Lord Hewart refers to this very point of giving to government departments manifest discretions and not leaving them subject to any restraint by Parliament. He refers with approval to a work written by Professor Morgan entitled “ Remedies Against the Crown “. The Socialist, of course, does not care about this. He is not interested in trammelling powers that are given to people outside the Parliament. This is what Lord Hewart said, citing Professor Morgan with approval - “ Government departments “, as Professor Morgan writes in the course of his excellent volume, ‘ Remedies against the Crown ‘, “ are too much inclined to attribute the same sort of mystical efficacy to acts done in virtue of statutory powers as in earlier times they were wont to ascribe to acts invoking the prerogative, and to contend that the mere fact of those acts requiring confirmation by Parliament is sufficient to invest them with a kind of sanctity which puts such acts, even when inchoate, beyond the reach of the law “.
That is precisely what we are doing in this Bill. What does the honorable gentleman have to say about that? Lord Hewart continued, quoting Professor Morgan -
Where the Courts can intervene, they do so; but the remedy lies to a large extent with public opinion as expressed through its representatives in Parliament. The Parliamentary draftsman’s language should be carefully scrutinised by members of Parliament in Committee before they allow legislative measures, delegating large powers to Government departments, to be placed on the Statute book.
The honorable member for Werriwa can laugh that off if he wants to, but my political philosophy is the very reverse. I believe that if discretions are given to people outside this Parliament they should be made readily amenable to this Parliament or to the court. In the case of my amendment, I come back to where I began by way of reply. It is a complete caricature of my stand on this issue for the honorable gentleman to say: “Ah, you have moved but one amendment containing three or four words with respect to it”. I have moved five amendments, and I submit to the honorable gentleman that if he tests them in accordance with the rule of law he will find that each and every one of those amendments does conform with a rule of law. I think it is an absurdity to put the Review Division in a position where it has no authority whatsoever to say to the Tribunal in the first instance: “ Look, you have made a mistake, but nevertheless we can do nothing about it”.
Finally, I say to the honorable gentleman: “ Does he laugh off the Franks committee’s report on ‘Administrative Tribunal Inquiries’”? As I said the other night, the Franks committee was composed of a galaxy of political, legal and industrial talent, the likes of which dwarf anything that this country could offer. What does the Franks committee have to say in relation to appeals? This goes to the point 1 have submitted to honorable members. It says that there should be an appeal on fact. What does the honorable gentleman say about that? He is sitting there gazing into space no doubt reading last Sunday’s pink police gazette. The Franks committee says the.c should be an appeal on fact, law and merits from a tribunal in the first instance to an appellant tribunal. That is the conclusion of the Franks committee, but tonight the honorable gentleman, in order to score a fine political point here, attempts to damn the argument I have submitted. I say to the honorable gentleman that I will meet him on any platform anywhere in this country and defend the stand I have taken on this clause. I believe it is wrong that the Review Division of the Tribunal should be placed in a position where it cannot correct an error of fact made by the Tribunal at first instance.
.- We have heard an incredible outburst tonight from the honorable member for Moreton (Mr. Killen). As my two colleagues who spoke before me said in reply to his first outburst, if he was so worked up over this particular clause why has he not either moved that the whole clause be deleted or headed a palace revolution with those who want to vote against it in its entirety? There are about 200 words under consideration and he wants three words added to them. The honorable member has put on a performance tonight which in my opinion has never been heard of before in this Parliament. Let us have a look at this matter. He said that he had moved five amendments. He has done nothing of the sort.
– They are all down there.
– But the honorable member told us that he had moved them.
– They are all on the notice paper.
– But they have not been moved yet. The honorable member told us that he had moved them, but he has not moved them at all. I say to honorable members opposite who are interjecting that I have not spoken on this Bill before and I am going to speak on it now, whatever they say. I have sat and listened to honorable members opposite for 20 hours - 20 hours of civil war in the Liberal Party - during which time they have criticised their Prime Minister (Sir Robert Menzies), the Minister at the table, the Attorney-General (Mr. Snedden), and each other. It has been the worst performance that I have seen in this chamber in the 19 years that I have been a member. Honorable members opposite will listen to me for a few minutes now for a change. This clause deals with the setting up of a Review Division within the framework of this Trade Practices Bill. All we have had from members on the other side has been part of a deliberate tactic aimed at stopping this Bill from going through this House before Christmas. It is a rearguard delaying action and we will have to sit in this chamber until about 3.30 in the morning so that we can finish with this legislation.
Mr. Chairman, the Opposition agrees with this legislation. It is not as strong as we would want but we want it passed as quickly as possible. I only want to rise and speak this one time and I do so because of what has transpired in the last few minutes. I am going to say what I want to say. There has been no discipline of honorable members on the other side of the chamber whatsoever. They have attacked the Ministry, the Prime Minister and this Bill which the Government has brought down. Why did they not raise all these objections to this Bill in the party room? Why did they not decide the matter there instead of being a party to civil war in the chamber.
– We debate in a Parliament, not in a caucus of 36 men.
– That is all right for the honorable member for Evans.
– There is nothing like a couple of Christian men having a go at each other.
– Order! I suggest that the Committee come to order and consider the relevancy of the matters before the Committee.
– The chairman makes the triumvirate of ministers of religion. This is the first time that this Review Division has been raised in this legislation so how could the honorable member for Moreton have moved five amendments to it? I do not know. Clause 62 and 63 of the Bill state -
– (1.) Where the Tribunal has made a determination in any proceedings, a party to the proceedings may, within the time allowed by or under the regulations and in the prescribed manner, file with the Registrar an application for an order of a Review Division of the Tribunal directing a reconsideration of the determination on any of the following grounds: -
– That is quite clear.
– That is as clear as crystal. But the honorable member for Moreton wants to move an amendment to add three new words. His outburst tonight makes me wonder why he has not decided to have the whole clause removed. I wonder why he will not vote against the clause after he has made an outburst such as he has made. To date we have debated this Bill for 20 hours. We are now dealing with clause 63 and there are 41 clauses to go. As the honorable member for Grayndler (Mr. Daly) has pointed out, the Ministry, bar one, has left the Attorney-General in isolation throughout the passage of this Bill. I admire the Attorney-General for his patience and the way he has handled the recalcitrant members on the Government side. He has shown absolute courtesy to men who have not shown courtesy to him. He is a credit to his profession for the way he has handled this difficult legislation during these long 20 hours. But only one Cabinet Minister has supported him in all that time.
– Order? I point out to the honorable member for Wilmot that what he is saying is irrelevant to the subject matter before the Committee. He is also trespassing on Standing Order No. 85.
– I would not like to trespass Standing Order No. 85. In view of what you have just said, Mr. Chairman, I will conclude my remarks. I am anxious to know what the honorable member for Moreton is going to do about this clause which raised his blood pressure a moment ago.
.- In spite of the fact that we have had a battle between members in this place who belong to the legal profession, and one who has no legal knowledge at all, I would like the Attorney-General (Mr. Snedden) to sort out this particular clause. A serious amendment has been moved and it is one in which I have a particular interest. I, too, am very much concerned to know the answer to this problem. A Review Division has been pro vided in this legislation. It will consist, I presume, of three lawyers. They will comprise the presidential session of the Review Division. When a matter comes to them for review these three judges, who did not have anything to do with the previous case, will have to decide, not whether the decision taken was wrong, but whether there was some ground for referring the matter back for another hearing. They have no authority. They have no appellate function. The decision made by the Tribunal seems to be the operative phrase. But what are the three members of this Division for? I could understand if it were only a matter of their giving a decision as to whether or not a material error of law had been made. But there are other errors which could be made. I would like the Attorney-General to tell us what will happen if material errors of fact are made. In spite of the babbling of the honorable member for Werriwa (Mr. Whitlam), the honorable member for Moreton (Mr. Killen) has foreshadowed a few other amendments which revolve around this point of a material error of fact. May we have a decision on this point?
– The amendment moved by the honorable member for Moreton (Mr. Killen) is not acceptable to the Government because it would put onto a tribunal constituted only by legally qualified people the task of determining public interest. The Bill proceeds on the basis that the determination of the public interest can occur only in a tribunal on which there is or could be a dominance of lay members. Clause 18 provides that a Division of the Tribunal shall consist of one presidential member and two other members. Sub-clause (2.) of that clause provides that, if all the parties agree, the Tribunal can be constituted by a single presidential member. Whether that provision will be availed of, I am not in a position to know. But the fact remains that the point where the determination of the public interest is made is in the Tribunal in which there is a dominance of non-legal members.
If we then had appeals on questions of fact to the Review Division of the Tribunal, which is composed of three lawyers only, and we let them decide facts, that would inevitably drive us to a situation in which the Review Division would make a decision on whether a matter was in the public interest. But, as I have said, the legislation adopts the idea and philosophy that such determinations can be made only where lay members outnumber legal members. That is the reason why there can be no appeal on a question of fact. As has been pointed out, if we have an appeal on a question of fact, fact inevitably intrudes into the whole area of the relevant economic factors. It has been decided that matters in that area should be determined by a tribunal with more lay members than legal members.
In the original proposals there was no provision for appeals but representations were made for appeals and the Government gave the closest consideration to the way in which an appeal system could be achieved. It has been achieved by constituting a Review Division of the Tribunal with three functions. The first is to determine whether there is an inconsistency and, if so, to identify it and to set it out in a decision. The Review Division will send the matter hack to the Tribunal, which has a dominance of lay members, saying: “Here is an inconsistency. Have regard to it and straighten it out.” Secondly, if there is an error of law, the Review Division will say to the Tribunal: “ You have made a mistake in law. We are now sending the matter back to you as the Tribunal where there is a dominance of lay members. Reconsider it and apply the right law.” Thirdly, it will identify an important public matter that has been overlooked by the Tribunal in its original hearing. Then it will send the matter back, saying: “Reconsider it and give proper regard to this important public matter”. This procedure gives as much appeal as can be given, consistent with the determination of questions of fact being made at a point where lay members outnumber legal members.
.- I draw attention to some words that were spoken by the honorable member for Wilmot (Mr. Duthie) when he was doing something that has been done far too often in the course of this debate - uttering words which bore upon parliamentary privilege if they did not attack the parliamentary institution itself, and which certainly represented intimidation of honorable members on this side of the chamber in the discharge of their clear duty in participating in decisions of this Committee. He said something like this: “ All that we have had from the other side of the chamber is a deliberate attempt to stop this Bill being passed before Christmas “.
– Hear, hear!
– Now I hear honorable members opposite saying “ Hear, hear!” That statement is far from the truth. A large number of honorable members on this side of the chamber agree with the principles of this Bill, have been looking forward to its introduction, welcome many of its provisions, but want to see changes made in various details and points with which they are not happy. That is true of me. As honorable members are aware, on one occasion I voted against the Government, and then the next day an amendment on the point concerned was agreed to. I did not take that action because I was trying to delay the passage of the Bill. 1 took it because I have a very keen and burning desire, as have the other members on this side of the chamber, to do my level best to see that when this measure is finally placed on the statute book it will be in keeping with our concept of justice and fair play.
I do not think it helps the cause at all for hypocritical rejoinders and political gibes to be thrown at honorable members on this side of the chamber, such as that there is no discipline in the Liberal Party and that we should predetermine these issues in our party room.
– Hear, hear!
– That is an attack on the the concept of the Parliament itself. Now “ Hear, hear! “ comes from the Leader of the Opposition. I believe that such statements are appalling when we consider that we are here to determine the issues that come before us and to act as responsible representatives of the people. Yet we are told that we ought to make our decisions in toto behind closed doors and then come into this chamber and act as rubber stamps or help to steam roller things through the Parliament without any intelligent debate.
– Order! I suggest that the honorable member for Evans has made his point sufficiently and is now developing a general argument on a matter which has no relation to the matter before the Committee.
– If I have made the point sufficiently, I am more than happy.
.- I do not think the Attorney-General answered the questions that were raised by the honorable member for Moreton (Mr. Killen). I was interested to hear the honorable member pour his tirade on the Deputy Leader of the Opposition (Mr. Whitlam). I thought this was the Attorney-General’s Bill. I would like to find out what this Bill is all about; whether the Government means business or whether the Bill is just a series of words, figments and fantasies, or whatever other terms that the honorable member for Moreton may have used. I want to know whether we are to sit here and talk about this Bill at this stage, only to discover in the end that it has no teeth in it.
The honorable member for Moreton has raised the matter of appeals on questions of fact. The Attorney-General has said that appeals cannot be made on questions of fact because such questions should be determined not by a panel of lawyers but by a panel of laymen. Under the previous clause, as I read it, questions of the public interest are to be determined by laymen. That might be exactly what the Attorney-General meant when he spoke on this clause a few minutes ago. I gathered that he was saying that a question of the public interest is one not for lawyers but for laymen. It seems to me that, in respect of clause 63 (1.) (b), one of the reasons for providing for appeals relates to questions of the public interest. I agree with the people who say that the public interest is such an indeterminate matter that it ought not to be handed over to anybody else to review and that we ought to be more specific in relation to it.
Now let me reply to the honorable member for Evans (Dr. Mackay) and his tirade against his spiritual colleague, one might say, the honorable member for Wilmot (Mr. Duthie). I will be interested to see whether the honorable member for Evans supports the Opposition in its attempt to have matters discussed and considered continuously and properly in this chamber. Earlier this year we discussed two very important and fundamental pieces of legislation - amendments to the Defence Act and amendments to the Commonwealth Electoral Act - and members of the Opposition were gagged on clause after clause. My memory may be faulty on this matter but I do not recall a single instance in which the honorable member for Evans assisted us or voted with us against the gag.
– Order! I suggest to the honorable member for Wills that these remarks have nothing to do with the matter now before the Committee.
– I realise that, Mr. Chairman; but I claim the right to speak from this side of the Committee in answer to the accusations that have been levelled against us.
I want the Attorney-General to explain, in terms simple enough for the honorable member for Evans and me - we are both laymen in these matters - exactly why he is so dogmatic in rejecting any suggestion that appeals should be allowed on questions of fact. I would like him to explain also the contradiction that appears to me to exist between the words that he used a few minutes ago and the words of the previous clause. Although I have sat here for a good while and tried to get the drift of the debate, it seems to me that we are cluttering up the Bill with so many restrictions and inhibitions that in the end it will have no teeth at all. We may as well go home and mow the lawns as expect anything really positive from this or from the honorable member for Maribyrnong (Mr. Stokes) who is interjecting.
– Mr. Chairman, I am a little puzzled by one or two things that the Attorney-General said. Earlier in this debate he called into aid in another context a question of review where there was a determination of a question of fact as to whether there was one third or one seventh of a certain market held by a firm. This is not the kind of thing that involves public interest. This is purely a question of fact. Under the English procedure this was determined by the court of review and an injustice was rectified. Apparently under the provisions of this Bill there can be no possibility of rectifying such an injustice. Secondly, I could not follow the Attorney-General when he said that these questions must be determined by a board that has lay members. If he will look at his own measure he will see that the effect of a review by the Review Division of the Trade Practices Tribunal is dealt with in clause 64, which, I think, provides for a matter to be recommitted to another panel that may consist of lay members. All that we are suggesting is that when the Review Division thinks a matter ought to be recommitted it should be recommitted. The final determination will then lie, as it should, in the hands of a panel that has lay members.
The two matters that I have just mentioned are not matters of law. But there is one matter which is a matter of law and on which I could not follow what the Minister said. Perhaps this was because I am a layman and did not understand him. He seemed to think that the question of public interest was a question of fact and not of law. It may be either, I would have thought. After all, what question of law could arise except law under the terms of this measure? Frankly I do not know what other question of law could arise. In this measure, which will be the law, so called guide lines are laid down in clause SO. So is the question of public interest a matter of fact or a matter of law? It is clear, of course, that all matters of fact do not include public interest. Some may and some may not. But it seems to me as a layman that the Attorney-General’s argument in law is a little difficult to follow, because law here must, I think, refer to law as contained principally in this measure. It is difficult to see what law could be involved except the law laid down in this Bill.
– What about company law?
– I do not think that would be relevant. I do not believe that this is the kind of thing that the Tribunal would be considering. I could not quite follow the Attorney-General when he said that the fact that a matter was of public importance might be a protection. It would, of course, be a protection in regard to the great companies - the big interests. What we are worried about, particularly in relation to questions of fact, is the small person who has not the resources to go through some kind of lengthy process - the person to whom an injustice may easily be done because he is insignificant and therefore nobody worries about questions of fact concerning him. Let us have some consideration also for people like that. They may be small and they may be insignificant but it is important that justice be done even to the smallest and least significant of them. So, here again, I find myself in some difficulty in following the line of reasoning adopted by the Attorney-General.
– Mr. Temporary Chairman, 1 have listened for the last half hour to the convolutions of honorable members opposite and to contributions made by my colleagues, the honorable member for Wilmot (Mr. Duthie) and the honorable member for Wills (Mr. Bryant). I ask the Attorney-General whether the honorable member for Moreton (Mr. Killen) is correct in saying that his proposed amendment has the support of the Law Council of Australia. Is that right or is it not? If it is right why has the Government decided not to follow the advice of the Council? I have no doubt that the Minister knows the facts and will give them to the Committee. The only other thing that I want to say is that this debate reminds me of the death of Charles II. He said that he was unconscionably long in dying and he apologised for it. He was a very good royalist, of course. What I should like to know is: Why are the rebels on the Government side delaying the passage of this measure? It is necessary that we have it on the statute book. We want it passed by Christmas. Indeed, the sooner it is through the better. We do not think very much of this measure, it is true, but at least it is a start and we do not propose to let the big interests outside the Parliament prevent the passage of this very necessary measure.
– Is the honorable member implying that big interests are causing delay through honorable members on this side? If that is what he thinks let him say it.
– I have to leave something to the imagination of honorable members.
– Cannot the honorable gentleman understand free men making their own decisions?
– I cannot understand what the honorable member said a while ago. Now that he has interjected, I think of the scriptures and say: “O Lord, how long, O Lord? “ Why do so many honorable members on the Government side want to delay the passage of this Bill? Why are they arguing over this and other clauses? We have before us one amendment to the clause and four others have been foreshadowed. When is this process to end? When will the Government introduce a little discipline into its own ranks?
– Mr. Temporary Chairman, 1 was very interested to find the Leader of the Opposition (Mr. Calwell) entering into the discussion at this late hour. First, he asked whether what the honorable member for Moreton (Mr. Killen) had said about a very high legal opinion on the amendment that he has proposed was true. He then immediately said that the honorable member and other honorable members on this side who have been proposing amendments have just been trying to delay the passage of the Bill. In other words, he wants two bob each way. First, he wanted to know whether what the honorable member had said in support of his proposed amendment was true and then he said, in effect, that the Attorney-General should accept the amendment. This only goes to prove that the discussion in which we are now engaged is well worth while because it may improve the Bill. It ill behoves the Leader of the Opposition to take this attitude. In other circumstances he has opposed bills with which he disagreed and has not bothered to try to improve them as we are trying to improve the measure now before us. He ought to know better than to come into the discussion almost at the last minute and put before us the sort of doctrine that he has adopted.
.- Mr. Temporary Chairman, does not the Attorney-General intend to answer the questions that have been asked by three or four honorable members on this side of the chamber?
– If the honorable member had been present when I was speaking he would have heard the answers.
– I was here.
– The honorable member was not.
– I was and I did not hear those questions answered. If I was not in the chamber I was listening outside. I say quite frankly that if the Attorney-General will not answer this, I will regard his refusal as a personal parliamentary insult; and I will have three or fours hours to work it out on him.
Clause agreed to.
Clause 64. (1.) An application under the last preceding section shall be heard and determined by a Review Division of the Tribunal. (2.) The Review Division shall not receive fresh evidence. (3.) If the Review Division finds that the ground of the application has been established, it may, in its discretion, make an order directing a reconsideration of the determination. (4.) Where a Review Division makes an order under this section, it shall indicate-
.- by leave - I move -
These amendments are consequential. The Government is obdurate and it has the numbers, although I am convinced that it has not the merit of argument on its side.
Clause agreed to.
Clause 65. (5.) The Division of the Tribunal constituted for the purposes of proceedings under this section may include all or any of the members who constituted the Division of the Tribunal that made the determination that is to be reconsidered.
– I move -
Omit sub-clause (5.) and insert the following sub-clause - “ (5.) The Tribunal as constituted, in accordance with section 18 of this Act, for the purposes of proceedings under this section may consist of or include the member, or all or any of the members, who constituted the Tribunal in the proceedings in which the determination that is to be reconsidered was made.”.
This amendment is necessary to clear up a point which may cause some concern at some time. There is provision in clause 18(2.) of the Bill that all parties can agree to have a single presidential member hear a matter instead of a tribunal composed of one presidential member and two other members. By omitting sub-clause (5.) and substituting the sub-clause which I propose it will be made clear that the provision refers to the Tribunal in both circumstances. I am sure the Committee will have no difficulty about this amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 66. (1.) The Tribunal (other than the Tribunal constituted as a Review Division) may, of its own motion, or, if it thinks fit, on the application of a party, refer a question of law arising in proceedings before it for determination by the Court, but a decision so to refer a question shall not be made by a Division of the Tribunal without the concurrence of the presidential member presiding. (2.) Jurisdiction is conferred on the Court to hear and determine a question of law referred to it under this section, but the Court may, for special reasons, decline to answer such a question.
.- I move -
In sub-clause (1.), omit “ if it thinks fit “.
I throw down the gauntlet to the Opposition to join with me in calling for a division on this amendment. This proposed amendment has been moved because there is not an appeal as of right to a court of law. Once again I put it to the Committee that it is completely wrong that a tribunal should have a discretion to cut short, in effect, the scope given to a party to refer a question of law to a court. It will be noted that in the second line of clause 66 the discretionary words are “ if it thinks fit, on the application of a party, refer a question of law”. That means, in effect, that if the Tribunal does not think fit, that is the end of it. There is no scope for a party to have a question of law referred to a court. This Bill is shot through with discretion. I do not recapitulate the arguments that I have advanced, but the measure makes it inordinately difficult for a person to seek an appeal to a court of law by way of prerogative writ. Not to give to a party to proceedings before the Tribunal a right to go before a court of law on a question of law is, I think, quite indefensible.
I now invite the Attorney-General or any other Government supporter to cite one authority - one will suffice - for the proposition that there should be no appeal to a court of law, as of right, on a question of law. For my part I stand on the authorities which I shall now refer to the Committee. I rely first on the Report of the Committee on administrative Tribunals and Enquiries, known as the Franks Committee, in which it is stated -
We are firmly of the opinion that all decisions of tribunals should be subject to review by the courts on points of law.
That is clear and explicit. There is no ambiguity about it whatever. Secondly, I refer the Committee to the report of the Donoughmore Committee on Ministers’ Powers in which it was stated -
We have already expressed the opinion in paragraph 9 that quasi-judicial functions should normally be exercised by Ministers themselves. On the other hand, we have recommended that purely judicial functions should normally be left to Courts of Law and that they should only be exercised by Ministers or Ministerial Tribunals in exceptional cases. Where either judicial or quasijudicial functions are exercised by Ministers, or judicial functions by Ministerial Tribunals, the rule of law requires the following safeguards: -
(I) the maintenance of the jurisdiction of the High Court of Justice to review and, if necessary, to quash the proceedings on the ground that the Minister or the Ministerial Tribunal has exceeded the statutory powers and has therefore acted without jurisdiction;
the existence of a simple procedure for the purpose;
the vigilant observance by the Minister or the Ministerial Tribunal of the three principles of natural justice which we have enunciated in paragraph 3 above;–
I leave out (c) because it is not sharply relevant -
Court of Justice on any question oflaw within a short stated time, and
Is the Committee going to laugh off the Franks Committee report and the Donoughmore report? Possibly someone may be persuaded to dismiss the opinion given by Glanville Williams in “The Reform of the Law” in which he said, at page 46 -
There should always be a right of appeal with no restrictions when a point of law is in question.
The final authority I cite is the work prepared by Griffith and Street, “ Principles of Administrative Law “, in which the following appears -
A right of appeal may be of considerable psychological importance: It reassures litigants and imbues tribunals wth a greater sense of responsibility. Although there are, then, good reasons why those aggrieved by administrative decisions should be able to take the case to a higher tribunal it will be remembered that the ordinary courts can quash all jurisdictional excesses. The main questions are whether there should be an appeal on matters of law, fact, and discretion, and whether the appeal should lie to the courts or to another administrative tribunal.
They conclude with the argument that there should be an appeal to an administrative tribunal in some circumstances. I would be very interested to know on what grounds precisely the Government advocates the proposition that it shall give no right of appeal to a court of law on a question of law. This afternoon the Attorney-General cited the judgment given by, I think it was, Lord Diplock. In that instance the AttorneyGeneral was citing what was said by the court of appeal about informal implied arrangements. I put it to my honorable and learned friend that in this instance a party cannot get beyond the Review Division on a question of what the interpretation of an informal implied arrangement may be. I put it to the honorable gentleman that this, again, does not shake this Bill to its foundations. It is completely in accord with every concept of reasonableness to assure that every party aggrieved on a question of law should be able to approach the court and should receive remedy and relief there.
– One of the difficulties that we have in finding out what is meant by this legislation is in assessing the basis on which we decide who will provide the onus of proof. Right through the Bill the onus is entirely on a party to show that what he is doing is within the law. I put it to the AttorneyGeneral that although the legislation provides that decisions will be made by the Tribunal, these will be decisions not only on questions of law but also on questions of fact. The honorable gentleman seems to ignore that point, if 1 have read his answer correctly. Every decision of the Tribunal is to be final and without appeal. That is entirely contrary to all the traditions of British Justice.In every aspect of anything legal that I have come in contact with there has been some court of appeal. In this Bill we seem to have ignored this tradition completely. The very composition of the Tribunal is such as will lend itself to errors on matters of fact. On it we are to have a mixture of people. We will have a presidential gentleman who, no doubt, will be very conversant with thelaw. But we will also have businessmen, economists and academics. They will be entirely lacking in training and experience in the proper exercise of judicial powers. I submit that it is essential that there be some right of appeal against their decisions.
There should be some right of appeal against all aspects of the Tribunal’s decisions if we are to have fair and just administration. I cannot see how we can possibly put into effect legislation which provides for a sham review. And it is a sham because the Bill stipulates only that Review Division shall write a letter to the originating Tribunal saying: “We do not think you have done the right thing about this”. The Review Division has no power to make decisions. Surely, in any aspect of enforcement of the law, the people who are being deprived of rights that they have established over years of business practice should have the right to appeal to a legal authority which will be able to decide the matter. Such a procedure would be much better than the rather loose arrangement provided for at present.
– When we were discussing a previous amendment, the Leader of the Opposition (Mr. Calwell) asked for an answer from the Attorney-General. He made a perfectly polite request to have explained to him whether what the honorable member for Moreton (Mr. Killen) had said with regard to the opinion of the Law Council of Australia was correct. That question was not answered by the Attorney-General. I think the Leader of the Opposition was entitled to an answer. Now we are dealing with another amendment and honorable members have asked why the words “ if it thinks fit “ have been included. Have they been included to stymie what would be an appeal to an appeal tribunal? We have not been given an answer to that question and I do not think that is fair treatment.
If there is to be an appeal authority to which the original presidential member will refer matters only if he thinks fit, the appeal tribunal will not be worth anything to anybody unless the original presidential member is uncertain of the decisions he has made. So far as I can see, we might as well wipe out the words “ if it thinks fit
– This clause deals not with appeals but with references on questions of law from the Tribunal to the Commonwealth Industrial Court. It provides that the Tribunal may, if it thinks fit, refer questions of law. The reason for this is that if we provided that all questions of law had to be referred on all occasions this could clearly be used as a device to obstruct the Tribunal and to prevent it from reaching a conclusion.
An issue of law can arise, but we have as presidential member of the Tribunal a person of judicial standing. That person will be able to deal with the great majority of matters of law which would arise in the course of hearings before the Tribunal. If it were provided that he must always refer these matters, we would have a series of interruptions of the proceedings of the Tribunal which would just make it completely unworkable. Therefore we have provided that the Tribunal may refer, if it thinks fit.
This provision is not unlike that contained in the Commonwealth Conciliation and Arbitration Act under which matters of law may be referred to the Commonwealth Industrial Court. There is no compulsion to refer. Equally, this provision contains no compulsion to refer questions of law. I feel perfectly confident - I do not think anybody would shake my confidence - that if a diffi cult matter of law arose the judicial member sitting on the Tribunal would be only too ready to refer the matter to the Court for determination.
– How can he?
– Merely by referring it. It is entirely for the Tribunal itself to determine whether it will refer a question.
– But cannot the two lay members outvote him?
– Not on questions of law. On questions of law, the opinion of the presidential member presiding will prevail.
.- I did not follow the Attorney-General very well when he said - and these are his words: “ The Tribunal may, if it thinks fit, refer a question of law arising from the proceedings for determination by the Industrial Court.” That is not the position at all. The clause says that the Tribunal may, on its own motion, do that. Then H says: “ or, if it thinks fit, on the application of a party “.
This is the point which the AttorneyGeneral has not answered. This is a restriction because if a party applies the Tribunal will refer the matter to the Court only if the Tribunal thinks fit. There are two distinct questions there. I am afraid the Attorney-General was in error a moment ago. Would he care to explain the correct meaning of the words I have just read from the clause?
.- I thought I had made the position clear. When a question of law arises before the Tribunal, three possibilities exist. The Tribunal itself can determine the question of law; or it can, of its own motion, refer it to the Court for determination; or, if it does neither, a party can ask it to refer the matter to the Court for determination. The issue which the honorable member for Moreton (Mr. Killen) wishes to force here is that if a party makes an application for a reference the Tribunal must make that reference. I have made the point that it could not be made mandatory on the Tribunal to make the reference because, if it were made mandatory the procedure of the Tribunal would be vastly interrupted. Such a provision could be used as a delaying device to prevent the Tribunal from ever reaching a determination.
Sitting suspended from 11.30 p.m. to 12 midnight.
Wednesday, 8th December 1965.
– The Attorney-General made the point that the Tribunal, if it thinks fit, can agree to an application by a party that a question of law be referred to the court for determination. This is somewhat different from what first appeared in my reading of the legislation. Right through this legislation we find such phraseology as “ if it thinks fit “, “ if it should decide “ or “ if there is a tendency to “ - all discretionary powers for the Tribunal. Surely the parties should have some right of appeal on their own account. Surely the parties, by application of the laws to which we are accustomed in other matters, should be able to appeal to some court if they feel aggrieved or believe some injustice has been done to them. If they want to carry the matter to its ultimate conclusion - if they are not satisfied with the jurisdiction of some lay members who are by the very nature of their appointment not acquainted with the law and who by the nature of their training would not be able to adjudicate on the facts, and there is only a presidential member who has legal knowledge - surely it is inherent in our whole legal structure that there should be some court of appeal to which they can turn. If, in the opinion of the Attorney-General, it is right for a party in a matter before the Tribunal to have questions of law referred to a court - I presume the Industrial Court - with the approval of the Tribunal, surely it is common or garden justice that he should have some right of appeal on his own account if he thinks he is aggrieved. [Quorum formed.]
– Many of the questions posed in relation to this clause remind me of a passage from “ Macbeth “-
It is a tale . . . full of sound and fury, signifying nothing.
I wonder whether the honorable member for Moreton (Mr. Killen) has disregarded the implications of section 75 of the Commonwealth Constitution. Under that section the High Court of Australia has original jurisdiction in any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. I quote here from an article by Professor Richardson -
For this purpose the Commissioner and members of the Tribunal, including the Review Division, would, no doubt, be regarded as officers of the Commonwealth. Accordingly, if the Commissioner or the Tribunal were acting beyond power conferred by the Act–
In other words, if they were in error on questions of law - a writ of prohibition or an injunction as appro priate could be sought in the High Court.
That being so, the amendment is futile and this debate is futile.
.- I have just two comments. First, in relation to the observations made by the honorable member for Cunningham (Mr. Connor), I put it to him that his remarks are not readily applicable at all. Here we are dealing with the reference of a point of law to a court of law by the Tribunal.
– The honorable member is referring that to the rights of a person.
– The honorable member’s reference to section 75 of the Constitution is not applicable at all. I want to deal specifically, if I may, with the point made by the Attorney-General, namely, that a question of law is dealt with by the President of the Tribunal. That is perfectly true, but I suggest that an absurd situation can arise whereby the President of the Tribunal thinks it fit to refer a question of law to a court of law but the two lay members of the Tribunal outvote him. I refer him to clause 21 (1.) and (2.) which deal with the determination of a question of law by the President of the Tribunal; but in all other proceedings a determination is made on a majority vote. We could have the situation where the two lay members decide, against the opinion of a judge of the Industrial Court, that no point of law is involved or that if a question of law is involved it should not be referred. The reference - and this is the crucial thing - becomes the proceedings, and when the proceedings are to be determined the determination turns on a majority vote and not on the opinion of the presidential member. I put it to the Attorney-General that, as I cannot convince him now, he may examine the situation and perhaps have a change of mind by the time this legislation reaches another place.
– I move -
In sub-clause (2.), omit “, but the Court may, for special reasons, decline to answer such a question “.
I am sure that the amendment will have the support of the Committee.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 67 agreed to.
Clause 68. (1.) A contempt of the Tribunal referred to in the last preceding section is punishable by the Court, upon application made by the AttorneyGeneral, as if it were a contempt of the Court, and jurisdiction is conferred on the Court to hear and determine proceedings in respect of such a contempt. (2.) Subject to this section, a proceeding in respect of such a contempt shall be instituted, carried on, heard and determined in accordance with the laws applicable to and in relation to the punishment of contempts of the Court. (3.) In so far as any such law is incapable of application, the Court may give a direction as to the manner of instituting, carrying on, hearing or determining a proceeding referred to in the last preceding sub-section. (4.) For the purposes of proceedings under this section, the Court shall be constituted by not less than three Judges.
– by leave - I move -
The amendment to sub-clause (1.) is a necessary provision having regard to constitutional issues. I am sure that the Committee will find it acceptable. The other amendment is a companion amendment to the first. I am sure that the Committee will have no objection to it.
Amendments agreed to.
Clause, as amended, agreed to.
Where a person enters into, or purports to enter into, a transaction that involves a contravention by him of, or a failure by him to comply with, an order of, or an undertaking given to, the Tribunal or a provision of Part IX., a person who is not bound by the order or undertaking, or was not guilty of an offence against Part IX. in relation to the transaction, as the case may be, has the same rights and title arising directly or indirectly out of the transaction as he would have had if the transaction had not involved such a contravention or failure.
– I move -
Omit “ arising directly or indirectly out of the transaction”, insert “, whether as a party to the transaction or as a person claiming directly or indirectly under a party to the transaction,”.
This is a most important provision for the protection of third parties. I am sure that the Committee will find it acceptable.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 70. (1.) In proceedings before the Tribunal -
.I move -
Omit paragraph (c) of sub-clause (1.).
I submit that it would be farcical for the Tribunal not to be bound by the rules of evidence. This Tribunal will conduct far reaching inquiries. Its orders will have the force of law. A person appearing before it may be charged with and punished for contempt of the Tribunal, notwithstanding that this power may not be enforced by the Tribunal. It will garner to itself tremendous authority - far reaching sub-legislative authority, to use the recent word that has crept into the lexicon. A person appearing before the Tribunal may not refuse to answer a question or produce a document on the ground that the answer or the document may tend to incriminate him. This Tribunal has all the trappings of a judicial body, yet it does not proceed in a judicial way.
– Nor does the Conciliation and Arbitration Commission.
– I am dealing with the Tribunal. Whatever faults may exist in another body, we cannot cure those faults by confirming faults that are readily apparent here. These tremendous powers should not be given to this body unless it observes the rules of evidence.
Clause agreed to.
Clause 71 agreed to.
Clause 72. 72.- (1.) The Tribunal may take evidence on oath or affirmation, and for that purpose a member may administer an oath or affirmation.
.I move -
In sub-clause (1.), omit “may”, insert “shall”.
I have gone through the motions of moving my amendment because it seems that I cannot prompt any pragmatic argument on the cases that I put. However, I will persist even to the end. As the clause stands you could have an individual appearing before the Tribunal and giving hearsay on hearsay, telling the most outrageous lies, but if this evidence is received with sufficient credibility, the Tribunal could act on it and put in jeopardy an entire industry and all the people associated with the industry. I do not think it is imposing a great burden on the Tribunal to require that it shall - not may - take evidence on oath or by way of affirmation.
– I take a slightly different view of this matter from that taken by the honorable member for Moreton (Mr. Killen). Will the Attorney-General at least condescend to give us, for once, some reason why these discretionary powers are applied? Will he tell us why it is provided that the Tribunal “ may “ hear evidence on oath? Will it not follow the normal practice of any committee inquiring into any matter and hear evidence on oath? My other question concerns sub-clause (2.) of clause 72 which reads -
A member may summon a person to appear before the Tribunal ….
Surely this is the prerogative of the President of the Tribunal and not of any member.
– The reason for the use of the permissive word “ may “ is that there may be some matters before the Tribunal which are not readily provable on oath. For instance, there may be extracts from learned journals, minutes of meetings, extracts from annual reports and things of that kind. This provision in respect of an administrative tribunal is common. I must say to the honorable member f< McMillan (Mr. Buchanan) that my experience of tribunals of this kind is that, there is a judicial presiding officer, the rules of evidence are almost always obeyed and almost always the evidence is taken on oath.
Clause agreed to.
Clauses 73 and 74 - by leave - taken together, and agreed to.
The Tribunal as constituted for the purposes of any proceedings in which evidence may be taken may authorize a member to take evidence for the purposes of the proceedings on its behalf, with such limitations (if any) as the Tribunal so constituted directs and, where such an authority is given -
.I move -
Before “member” first occurring, insert “ presidential “.
I submit that evidence on behalf of the Tribunal should be taken, not by a member, but by a presidential member. This is analogous to clause 21 (1.). I hope that the Attorney-General will accept the amendment.
– The Government will accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 76 and 77 - by leave - taken together, and agreed to.
The Tribunal has power -
.I move -
At the end of the clause add the following paragraph: - “and (e) to allow costs where appropriate.”.
About the only discretion not open to the Tribunal under this Bill is the discretion to award costs where applicable. It may be expected that some of the proceedings before this body will be long drawn out. The case involving locked coils, which was heard in the United Kingdom Trade Practices Court, lasted for 33 days. I submit to the Attorney-General that grounds exist for accepting my amendment. One can readily visualise circumstances in which costs should be awarded. I think the amendment is reasonable. I trust that it meets with the same fate as befell my last amendment.
– It does not meet with the same fate as the last one. This matter has been very carefully considered by the Government and specifically by Cabinet. Cabinet came to the conclusion that, in matters of this kind, it is not appropriate to award costs.
– It is a very hazardous occupation to support anything in this Bill that is raised by the honorable member for Moreton (Mr. Killen). He has asked me to do so on several occasions and he has roundly abused me when I have. On this occasion he has not asked me to support him, but I want to pursue this matter a little further. I shall quote from a couple of documents. As in all these cases, I am prepared to quote chapter and verse. The honorable member for Moreton referred to decisions of the Law Council of Australia. I have the document here and it does not bear out his representation of it. Nevertheless, on this occasion the authors of the legislation did propose that costs should be within the discretion of the Tribunal. This is one matter in which the honorable member for Moreton is at one with the former Attorney-General. As he would say, even the former AttorneyGeneral agrees with it. Sir Garfield Barwicks proposals put to the Parliament on 6th December 1962 included the well remembered document “Elements of the Scheme “. Clause 18 was in these terms -
The Tribunal is to be able to award costs against any party, including the Registrar or the AttorneyGeneral.
Again in his paper to the 13th Legal Convention of the Law Council of Australia, held at Hobart in January 1963, Sir Garfield Barwick said - . . I draw attention to the fact that the proposal that the Tribunal should be empowered to award costs represents a departure from both the United Kingdom and the New Zealand schemes. Apart from providing for more complete justice as between the parties to proceedings before the Tribunal, this proposal should help to deter persons from engaging in practices which have little or no prospect of being found to be justifiable. It should also perform a useful function in helping to deter the parties to proceedings before the Tribunal from prolonging these proceedings unnecessarily.
It was typical of the whole tenor of the amendments moved by the honorable member for Moreton that he should have been motivated by concern for businesses hailed before the Tribunal. He was worried about the expenses to which such companies would be put by being hailed before the Tribunal. He was worried about the expense to which they would be put if the proceedings before the Tribunal were protracted. Sir Garfield Barwick made it plain that he regarded the provision of cost’s as being a deterrent agains: those companies that were carrying out restrictive practices. The fact that such companies could be made to pay costs would deter them from carrying out the practice. It would also deter them from prolonging the proceedings unnecessarily.
I dare say that the honorable member for Moreton will lose some of his enthusiasm for the proposition when he finds that the author of the scheme had in mind a very different objective. I cannot say I would have moved this amendment myself, because I am not satisfied that the awarding of costs is a good feature of administrative proceedings or that it is one which we should promote. Nevertheless, the honorable member for Moreton has raised in his amendment - I imagine he did so inadvertently because he did not refer to this fact - one of the features that the author of the scheme put to the House three years and two days ago. I believe that in this matter the present AttorneyGeneral (Mr. Snedden) should give more considered reasons why the Government once again has departed from the Barwick proposals.
Clause agreed to.
Clauses 79 to 84 - by leave - taken together, and agreed to.
Clause 85. (4.) It is a defence to a prosecution under sub-section (2.) of this section if the defendant satisfies the court that-
at the time of the alleged offence -
.It is not my intention to keep the Committee for very long, but from this section of the chamber there has been a strident voice from my colleague. By way of a change, I thought I would seek a little information from the Attorney-General (Mr. (Snedden) to make clearer my understanding of clause 85. Naturally enough, the Committee does not need a reminder that collusive tendering should be outlawed. Earlier this year the Parliamentary Public Accounts
Committee in public hearing had its attention drawn to a number of cases and these we have registered as being far from the public interest. In certain areas of our own Commonwealth Government purchasing, collusive tendering of a vicious kind has been encountered. The provision in the Bill appeals to me as being quite firm in its contention, but there does seem to me to be some loopholes. My questions, therefore, will relate to the points I have noted.
It has been suggested by some people who have studied the Bill in far more detail than I have that a standing agreement to engage in collusive tendering which is subsequently found to be in the public interest may be approved under sub-clause (4.). I would ask the Minister whether he can indicate to the Committee the full impact of registration of such an agreement. I see that the wording is that “the agreement concerned was not made for the purposes of a particular invitation to tender.”. I interpret this to be a standing agreement, not just for the specific tender in question. A further paragraph of this sub-clause states -
at the time of the alleged offence -
I ask the Minister to indicate to the Committee the full impact of registration and the full meaning of exemption if it be a standing agreement. Under sub-clause (5.), the exemption to me seems to be quite specific. If the services or the goods are being exported from Australia, there is an exemption as far as collusive tendering is concerned. As the Minister will recall, I am particularly interested to know whether this covers the timber industry when timber is being sold outside Australia. I assume the timber people are completely in the clear and exempt if there is a combination of tendering or tendering for overseas delivery of timber at the same figure. I am a little mystified about the exemption being given under sub-clause (5.). Why not use the exemption clause 87? Why is sub-clause (5.) required at all? Where do we stand regarding the activities of exporters under acts of Parliament, such as the Australian Apple and Pear Board legislation? Are these completely exempt? Am I correct in believing that such an exemption is provided under clause 87 (2.)?
It is my understanding that the AttorneyGeneral in correspondence answering the queries of certain people in industry has referred to sub-clause (6.), which provides that clause 85 does not apply to making or joining in the making of a joint tender at the request of or with the prior consent of the person inviting tenders. To satisfy my curiosity, I ask the Minister whether he can provide me with an illustration of circumstances that are adequately covered by sub-clause (6.). The intention of competitive tendering would surely rule out the possibility of anyone desiring competitive tendering readily approving in writing the submission of a joint or combined tender. My question is: Does not the calling of tenders connote a desire for competition? How can the Attorney-General justify a suggestion that the person inviting tenders might approve of joint tendering?
Finally, some of us have noted that the Chambers of Commerce have raised the problem of joint tenders, their attitude being that the narrowing of the prohibition of collusive tenders to those which have the purpose or effect of preventing or restricting competition might be highly desirable. [Quorum formed.] The point I make is that some exemption might be possible for joint tenders in the context that they do not prevent or restrict competition in certain circumstances. I am referring particularly to the submissions made by Chambers of Commerce. I ask the Attorney-General whether careful thought has been given to the possibility of defining, in an adequate manner, an exemption for such tenders. I am reasonably well impressed with the fact that in certain circumstances one corporation may find that it does not desire to tender or bid except jointly with another corporation which might not be related to it. The reason for this might be that one corporation alone is not sufficiently financial to tender. The same thing can apply to two or more builders who individually are not sufficiently financial to tender for construction work but who could combine in a joint venture, and thus provide a tender which otherwise might not be forthcoming. I think that there are some genuine representatives of industry who would like to have some clarification of this matter and that is why I ask the Attorney-General for an assurance that it has been most carefully looked at.
.There is one form of collusive tendering which I believe is not covered by this clause as it stands. It is the practice, which is not infrequent, of making cover bids. It works in this fashion: Company A rings Company B and says: “ Are you putting in a tender for such and such a job?” Company B says: “ No, we do not intend to do so.” Company A says: “ Well, we suspect that we may be the only company tendering for this particular job and the requirement of the authorities necessitates there being more than one tender. Will you put a cover bid in for us?” Company B says to Company A: “Well, what is the price of your tender?” Company A says: “ It is £35,000 or £350,000”, whatever the case may be. The other company says: “Very well, we will put in a tender at an escalated price of £380,000.” It does this to enable an apparent competition to exist. I ask the Attorney-General (Mr. Snedden) whether, in the wording of the clause as it stands, such a practice could be brought within the scrutiny of the Tribunal. Clause 85 (1.) (b) provides that “ collusive tendering agreement” includes - any other agreement that has the purpose or effect of preventing or restricting competition . . .
That paragraph is pointed in the direction to which I have alluded. My thought is that other words should be added such as “ or concealing an absence of effective competition.” A further paragraph, (c), could be added to sub-clause (2.) to provide that a person who makes a tender as a result of collusion to give the appearance of competition to assist another tenderer to tender for a contract is guilty of an offence against this section. That would cover this particular form of practice, which I think is not in the public interest but which is not unknown in business circles. I believe that the clause as it stands is not adequate.
– I do not want to add anything to the comments that have been made by the honorable member for Swan (Mr. Cleaver) and the honorable member for
Evans (Dr. Mackay) who have both covered the ground very adequately. I suggest that the Attorney-General (Mr. Snedden) might consider an amendment to add to paragraph (a) of clause 85 (1.) words that would cover the points that have been made by the previous two speakers. The present clause contains the words, “ that has the purpose or effect of preventing or restricting competition.”. All collusive tendering is not necessarily restrictive.
.I move -
After paragraph (b) of sub-clause (4.), insert the following paragraph: - “ (c) the agreement concerned was in the public interest “.
I will not advance any argument with respect to this amendment; I think it is self explanatory. I believe the present provision should allow scope for individuals who can be caught within its extremely wide ramifications to come along and say: “What we did was in the public interest,” and that it should impose on them the entire burden of showing that it was in the public interest. Honorable members have adverted to the circumstances in which some people find themselves. Prima facie what has been described may appear to be collusive tendering. Technically speaking, no doubt it is, but if we were to peer behind the scenes we would find that these people are not committing any crime against the community. They should be given an opportunity to show that what they are doing is not injurious to the public welfare.
– I have listened to the debate on this question with interest because it is a matter to which much consideration has been given. I assure the honorable member for Swan (Mr. Cleaver) in particular that very close consideration was given to it. I shall deal with the matters in the order that the honorable member for Swan brought them up. He asked first what was the ramification of a registered agreement. First and foremost, a registered agreement is not an ad hoc agreement as is the agreement referred to in paragraph (a) of sub-clause (4.). As a registered agreement normally has relation to price, it would have been registered with the Tribunal, and, of course, once it is registered with the Tribunal it would not be an ad hoc agreement but would be a standing agreement and would constitute a defence unless and until the Tribunal had ruled that it was contrary to the public interest. While it was not so ruled, it would be a defence to a prosecution and there would be no difficulty involved.
The next point raised by the honorable member was in relation to the supply of goods outside Australia by the tenderers. This also is an exemption. The honorable gentleman asked why it is not dealt with in clause 87. I think the answer is that it was found desirable to deal with it directly at that point of time. The next point raised by the honorable gentleman was in relation to joint tendering by unrelated companies neither of which feels capable of tendering for the whole job. The honorable member cited building as an example. I think I should put it to the honorable member that when somebody calls for tenders they are not new to that field. They know the general field in which they are calling tenders. They would know that in order to get tenders which were truly competitive over a range they may require to permit people to join in a joint enterprise so that they can tender. In that case it would be open for two people who could not otherwise tender to tender jointly and it would be a matter for the tenderer himself to decide when calling for the tenders. That person would not be inexperienced in what he could expect. Alternatively, if two or more unrelated companies felt they would like to tender but could not tender for the whole of the work they would come together and would seek the consent of the person calling tenders and it would be up to that person to decide whether or not he would agree to the submission of joint tenders. Closely considered, I think this is a reasonable and proper provision.
The suggestion made by the honorable member for McMillan (Mr. Buchanan), which has the purpose of restricting competition, like the amendment moved by the honorable member for Moreton (Mr. Killen) is to put the matter in the Commonwealth Industrial Court, a true judicial court. The other suggestion would be to vest in that judicial body a responsibility to make a determination in relation to economic matters as to whether or not they were against the public interest. It would be quite inappropriate to put that responsibility there. But that is only one point. The major point is this: I think that the broad range of people accept the proposition that collusive tendering cannot be consistent with the public interest in any circumstances.
– Part IX of this Bill, of which we are debating the first clause, clause 85, deals with collusive tendering and collusive bidding. Clause 85 imposes a penalty for an offence against that clause. There is no provision for continuing offences. Each offence has to be taken separately. Earlier in the Committee stage, I moved an amendment providing for continuing offences. The Victorian Parliament has recently had before it a Collusive Practices Bill dealing with the same subject matters as Part IX of this Bill. The Victorian Bill provides for penalties for offences. In addition it provides for power to enjoin convicted persons and to penalise them for breaches of the injunction. The relevant clause 8 of the Victorian Bill states -
There is no equivalent or comparable provision in Part IX of this Bill. I believe it would be instructive for those honorable members, mainly from Victoria, who raised the cries of a police state when I moved a provision for penalties for continuing offences, to harken to the provision for penalties for continuing offences in the Victorian Bill which is in pari materia with the Bill we are debating.
– Is there a Liberal Premier over there?
– It is a really Liberal Government in Victoria. It does not have to depend on Country Party support.
Clause, as previously amended, agreed to.
(2.) A person who-
Two thousand pounds or imprisonment for a term not exceeding six months.
– I move -
After sub-clause (3.) insert the following subclause: - “(3a.) It is a defence to a prosecution under sub-section (2.) of this section if the defendant satisfies the Court that -
the agreement concerned was not made for the purposes of a particular auction; and
at the time of the alleged offence - (0 full and accurate particulars of the agreement and of any variation of the agreement were contained in the Register; and
there was not in force an order of the Tribunal that was contravened by the conduct constituting the alleged offence.”.
I think the amendment is quite clear as it stands.
Amendment agreed to.
Clause, as amended, and as previously amended, agreed to.
Clause 87. (1.) An agreement is not a collusive tendering agreement or collusive bidding agreement for the purposes of this Part to the extent that -
– There are two necessary amendments which have to be inserted in this clause and I am sure that the Committee will have no difficulty in accepting them. I move -
In sub-clause (1.), omit paragraph (b) and insert the following paragraphs: - “ (b) the agreement is between partners, in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between a partner and the partnership; “ (ba) the agreement is between trustees, in relation to the conduct of a business carried on by them as trustees; or “.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 88. (1.) Subject to this section, a person who suffers loss or damage by an act of another person done in contravention of an order of the Tribunal in proceedings under Part VI. or in contravention of section 85 or 86 of this Act may recover the amount of the loss or damage by action against that other person. (3.) In an action under this section in respect of en act in contravention of section 85 of this Act, the provisions of sub-section (4.) of that section apply as if the reference to a prosecution were a reference to the action.
– I move -
In sub-clause (1.) omit “ contravention of section 85 or 86 of this Act may recover the amount of the loss or damage by action against that other person.”, insert “ contravention of any of the provisions of Part IX. may sue for and recover from that other person treble damages for the loss or damage “.
If this amendment were carried clause 88 (1.) of the Bill would read-
Subject to this section, a person who suffers loss or damage by an act of another person done in contravention of an order of the Tribunal in proceedings under Part VI. or in contravention of any of the provisions of Part XI. may sue for and recover from that other person treble damages for the loss or damage.
Until this Bill comes into operation individuals and companies in Australia will continue to enjoy the rights given them by the
Australian Industries Preservation Act 1906. Section 1 1 of that Act provides -
Any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury.
Section 11 of the Australian Industries Preservation Act, reproduces section 7 of the Sherman legislation of 1890 of the United States of America. The provision for treble damages is well entrenched in United States law and practice. It has been a most effective measure in ensuring that United States business remains competitive, and eschews restrictive practices and monopolisation.
– What does that mean - treble damages?
– If I may translate for the honorable member for Wilmot (Mr. Duthie) it means that instead of an eye for an eye you have three eyes for an eye; or three teeth for a tooth would be a more felicitous example. The same provision has been on the Commonwealth statute book for the last 59 years. As a result of decisions given by the full High Court of Australia unanimously in Redfern’s case last year and by Mr. Justice Taylor in Australian Capital Territory cases in the middle of this year, it is quite clear that this provision of the Australian Industries Preservation Act is a very live and effective one.
As I have pointed out before, it is because this provision is now so live and known to be so effective that at last the present Bill has been introduced, incorporating provisions to repeal the Australian Industries Preservation Act. It will be remembered -that Sir Garfield Barwick did not propose the repeal of that Act; that the Governor-General and the Administrator, in opening the Parliament, did not propose such a repeal, and that the Prime Minister (Sir Robert Menzies) in the election campaigns in 1961, 1963 and 1964 did not propose such a repeal. The repeal of that Act in this Bill stems from the High Court decisions of last year and this year.
The amendment that I have moved would preserve to the Australian people the rights which they have had for 49 years and which the United States has given to its citizens for the last 75 years. No reason has been given why this provision should be taken away from Australians or why, on an analogy with the United States experience, it should be denied to Australians. Accordingly, I have moved this amendment to preserve the rights which Australian residents and companies have and which no good reason has been shown for now denying to them.
– The Government opposes the amendment.
– I move -
Omit sub-clause (3.) and insert the following sub-clause: - “ (3.) In an action under this section in respect of an act in contravention of section 85 or 86 of this Act, the provisions of sub-section (4.) of section 85 or of sub-section (3a.) of section 86, of this Act apply as if the reference to a prosecution were a reference to the action and as if the reference to the alleged offence were a reference to that act.”.
This is a technical amendment. It is in the form of a correction. I am sure that the Committee will not have any difficulty in agreeing to it.
Amendment agreed to. Clause, as amended, agreed to.
Clauses 89 and 90 - by leave - taken together, and agreed to.
Clause 91. (2.) An arrangement or understanding, whether formal or informal and whether express or implied, shall be deemed to be an agreement. (3.) A reference to an agreement shall be read as including a reference to an agreement made outside Australia.
.I do not think one could let clause 91 (2.) pass without saying one or two words about it. [Quorum formed.] One could not let clause 91 (2.) pass without saying something about it, in view of the fact that it has been the subject of a great deal of criticism during the discussion of previous clauses of the Bill. Clause 91 reads, in part - (1.) The following provisions of this section have effect for the purposes of this Act and of any order of the Tribunal. (2.) An arrangement or understanding, whether formal or informal and whether express or implied, shall be deemed to be an agreement.
I am sure that everyone who has looked at sub-clause (2.) and has heard the discussion of previous clauses will agree that it goes to really extraordinary lengths. I would like the Attorney-General to tell us just how one decides what is an understanding, let alone an implied understanding. To require one to ascertain whether he has an implied understanding and then to register it is to go to extraordinary lengths and to move into an entirely uncertain realm. Throughout the discussion of previous clauses we have been speaking about this uncertainty that seems to pervade the whole Bill. In the interests of justice, I suggest that we should know something about the word “ understanding “. The AttorneyGeneral might even consider withdrawing the words “or understanding” before the Bill goes to another place.
.I move -
In sub-clause (2.), omit “ and whether express or implied “.
I have advanced argument concerning this amendment throughout the debate. To advance further argument would be futile.
– The honorable member for Isaacs (Mr. Haworth) has asked me a question in relation to sub-clause (2.). I dealt with this at some length earlier today. I now recapitulate very quickly that an understanding in this sense is something which, unless covered, would enable circumvention of the Act, because a very easy way of avoiding the consequences of the Act would be to abandon an agreement but, by an understanding, to let the terms of the agreement between the parties subsist.
– What is an understanding?
– That is an understanding. An implied understanding exists in circumstances to which I referred earlier today. Unfortunately, the “ Hansard “ staff has taken the relevant document from me in order to incorporate in “Hansard” the passage that I read from the report of the Registrar of Restrictive Trade Practices in the United Kingdom for the period from 1st July 1961 to 30th June 1963. He quoted from a decision by Lord Justice Diplock in which the circumstances in which there is an understanding were clearly set out.
The example given there was as follows: Party A said: “ I propose to sell my goods at X price “. He then let it be known to party B that he proposed to sell his goods at that price, and party B let it be known that he - that is party B - proposed to sell his goods at the same price. Each of them has an understanding - of course, it could extend beyond two people to a number of people - to sell at the same price. That is an understanding and it is implied as between them.
– I move -
At the end of sub-clause (3.) add “or made at any time before the date of commencement of this Act”.
The object of this amendment is to make it clear that the obligations under clauses 41 and 42 of the Bill apply to agreements “ made at any time before the date of commencement of this Act “. My colleagues and I felt that it was a permissible and, indeed, probable construction of clauses 41 and 42 that agreements would have to be registered or particulars would have to be furnished only where the agreements became examinable after the Act came into effect. This certainly is an interpretation which has been canvassed among members of the legal profession who have been scrutinising the Bill in the last six months. I believe it is certain that the Government intends that all agreements already in existence and still in existence when the measure becomes law shall be registered and that particulars of those agreements shall be furnished. Accordingly, I propose the amendment to make quite plain what I apprehend to be the Government’s intention.
– Mr. Chairman, The intention always was that this Bill would apply to agreements made before it came into operation when such agreements con tinued after the date on which the measure came into operation. This has been understood by everybody. It is my opinion that the Bill already will ensure this. However, the inclusion of the words proposed will make that intention and that interpretation clear. The Government therefore accepts the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
(2.) For the purposes of this Act -
Amendment (by Mr. Snedden) agreed to-
In sub-clause (2.), paragraph (e), omit “that”, second occurring.
Clause, as amended, agreed to.
Clauses 93 to 96 - by leave - taken together, and agreed to.
A copy of a determination or order of, or undertaking given to, the Tribunal, certified to be a true copy under the hand of the Registrar or a Deputy Registrar, shall be received in all courts as evidence of the determination, order or undertaking.
– Mr. Chairman, I move -
Omit the clause and insert the following clause: - “ 97. - (1.) Subject to any direction under section 73 of this Act, a person may, on application in accordance with the regulations and on payment of the prescribed fee -
inspect the document recording a determination or order of the Tribunal or any other document filed in the Tribunal or recorded in the records of the Tribunal in pursuance of this Act or the regulations; and
obtain a copy of any such document, certified to be a true copy under the hand of the Registrar or a Deputy Registrar. “(2.) A copy of a determination or order of, or undertaking given to, the Tribunal, certified to be a true copy under the hand of the Registrar or a Deputy Registrar, shall be received in all courts as evidence of the determination, order or undertaking.”.
The proposed clause will make it clear that members of the public can obtain certified copies of documents filed with the Trade Practices Tribunal or recorded in its records. I am sure that the Committee will agree to the amendment.
Amendment agreed to.
In proceedings under Part VII. or Part X., a determination or order of the Tribunal out of which the proceedings arose is evidence of the facts stated in the determination or order to have been found by the Tribunal.
.- Mr. Chairman, I move -
Omit the clause.
I believe that this clause has now become absurd. The Committee has rejected a provision that the rules of evidence shall apply. It has also rejected a provision that evidence shall be taken only on oath or by way of affirmation. The Government suggests to the Committee that for the purpose of enforcement and matters relating to civil remedies a determination or order of the Trade Practices Tribunal out of which the proceedings arose be evidence of the facts stated in the determination or order to have been found by the Tribunal. I do not think that this clause is defensible and I am surprised that the Government has persisted in leaving it in the measure, at least in its present form.
Clause agreed to.
Clauses 99 and 100 - by leave - taken together, and agreed to.
Clause 101. (I.) Prosecutions for offences against this Act shall be brought only in the Court. (2.) Jurisdiction is conferred on the Court to hear and determine prosecutions under this Act. (3.) The jurisdiction of the Court under this section may be exercised by a single Judge. (4.) Proceedings before the Court in accordance with this section -
General, by writing under his hand, to give such consents.
– Mr. Chairman, I move -
At the end of the clause add the following subclause: - “(5.) A prosecution for an offence against section 43, 85 or 86 of this Act may be commenced at any time after the commission of the offence.”.
The need for this amendment arises because under the Crimes Act these offences would have to be prosecuted within six months of their commission whereas in fact on occasions it is very likely that they will not have been discovered within that period. I am sure that the Committee will have no difficulty with this amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 102 agreed to.
Clause 103. (2.) A person shall not -
Penalty: Five hundred pounds or imprisonment for three months.
Mr. SNEDDEN (Bruce - AttorneyGeneral [1.6 a.m.]. - Mr. Chairman, I move -
In sub-clause (2.), omit “ Five hundred pounds “, insert “ One thousand dollars “.
This amendment is made necessary by the forthcoming change to decimal currency.
.’ - Mr. Chairman, I ask the AttorneyGeneral: Does this mean a fine of one thousand dollars or a fine not exceeding one thousand dollars?
– It means a fine not exceeding one thousand dollars.
– Should it not say so?
– There is no need for it to say so.
– I thank the Minister for his answer.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 104 agreed to.
Proposed new clause 104a.
– Mr. Chairman, I move -
After clause 104, insert the following new clause: - “ 104a. - (1.) The Commissioner shall, within sixty days after the end of each year, furnish to the Attorney-General, for presentation to the Parliament, a report with respect to his operations in that year. “ (2.) In this section, ‘ year ‘ means a year ending on the thirtieth day of June, but does not include a year that ended before the date fixed by Proclamation under sub-section (2.) of section 2 of this Act.”.
The purpose of this proposed new clause is to provide that the Commissioner of Trade Practices shall present to the Parliament an annual report. This should prove very valuable in enabling the Parliament to examine the work of the Commissioner.
– Mr. Chairman, I am very pleased to see that this new clause is proposed. It will be a big improvement to think that the activities of the Commissioner of Trade Practices will be under the scrutiny of the Parliament. But should not the proposed new clause provide that the Parliament be given an annual report on the operations of the Commissioner and of the Tribunal? I suggest that the concluding words of sub-clause (1.) should read -
– To reply quickly to the honorable member for McMillan (Mr. Buchanan), the proceedings of the Tribunal will be in public and the Tribunal must state reasons for all determinations that it reaches. This will be a public document which will be available to the public and which no doubt will receive some publicity. I think the important thing here is the report by the Commissioner - not the Tribunal. It would be inappropriate for the Commissioner to report as to what the Tribunal was doing when the decisions of the Tribunal would be public documents.
– But should not the Parliament have some cognisance of the reports?
– Parliament will be able to see them in the same way as it sees decisions of courts.
Proposed new clause agreed to.
Proposed new clause 104b.
– I move -
That the following new clause be inserted in the Bill- “ 104b. - (1.) The Commissioner shall within thirty days after the end of each quarter, furnish to the Attorney-General, for presentation to the Parliament, a report with respect to his operations during that quarter and shall include in the report information as to -
the matters in which he has carried out investigations;
the matters in which he has decided to institute proceedings in the Tribunal; and
the matters in which he has decided not to institute proceedings in the Tribunal. “ (2.) The Attorney-General shall, as soon as practicable after every thirtieth day of June, report to Parliament on the operation of this Act in the year ending on that thirtieth day of June. “(3.) In this section,’ quarter ‘ means a period of three months ending on the last day of September, December, March or June.”.
The Opposition joins issue with the AttorneyGeneral on this clause because of the special functions and the special nature of the Commissioner. The Commissioner is to be a unique institution with very special powers. He should be subject to the closest and regular periodic scrutiny of Parliament. His powers are vast. His functions are practically unlimited and he operates at all times in the very closest secrecy.
– Order! I point out to the honorable member that there is a conflict between the new clause which has just been inserted and the proposed amendment. The proposed amendment states that the Commissioner shall, within thirty days after the end of each quarter, furnish a report. The Committee has just agreed to a new clause which states: “The Commissioner shall, within sixty days . . . furnish . . a report.” However, if the honorable member wants to move his amendment formally, he may proceed.
– The terms of the amendment provide for quarterly reports to Parliament by the Commissioner of Trade Practices. As I stated previously, the Commissioner will have special functions and will operate in the closest secrecy. He will answer, in the terms announced in this place, only to the Attorney-General and then somewhat indirectly. The absence of any report to Parliament is something which was adversely commented upon by the Press throughout the Commonwealth. Even the amendment moved by the Attorney-General was undoubtedly a concession to the overwhelming Press and public criticism of this measure. The amendment which I have moved proposes particularity, it proposes specific terms which should be included in the report. I understand that under the tariff legislation similar reports are submitted periodically. There is no conceivable reason why this should not be done under this legislation. There is every reason to support my view. This legislation is an innovation in Australia and the activities of the Tribunal will need the closest scrutiny. Government supporters in criticising various aspects of the measure have emphasised the critical importance of this legislation to the community. We of the Opposition realise that the legislation will be of critical importance to the consuming public and the underprivileged sections of the public whom we represent. We press the amendment.
Proposed new clause negatived.
Proposed new clause 104b.
.- I move -
After clause 104, insert the following new clause: - “ 104b. The President shall, within sixty days after the end of each year, furnish to the AttorneyGeneral, for presentation to the Parliament, a report with respect to the operations of the Tribunal in that year”.
I believe that the Tribunal should report to Parliament. The argument which the Attorney-General has already advanced in a pre-emptive rejection of this amendment astonishes me. I have before me a list of the various bodies, corporations and the like which report annually to Parliament. Included among them is a report by the President of the Commonwealth Conciliation and Arbitration Commission. If I may take hold of the argument put by my honorable friend, it is perfectly true that all discussions before the Arbitration Commission are reported in public documents and are open to public scrutiny. Nevertheless, the President of the Commission does report to Parliament, giving his views on the operations of the Conciliation and Arbitration Act dur ing the year and indicating the strength and weaknesses of the Act. But in this case no opportunity is afforded to the President of the Tribunal to report to Parliament and to say in which way he believes the Act is falling down, where it may be strengthened or the difficulties that he and his fellowmembers of the Tribunal have met. I hope that the Attorney-General and the Government can be persuaded to reflect upon the significance of failing to provide a means whereby the President of this Tribunal, which is vested with tremendous power, may report. I do no more than ask honorable members to contemplate that the Tribunal has no means by which to report to Parliament. This seems to me to represent a significant gap in the fabric of the Bill.
– I should make reference to the point made by my honorable friend. At clause 104 he is my friend more so than he was at clause 54.
– He has been told off in the meantime.
– No, he has not. He has acted at all times of his own volition and after making his own examination of the Bill. He has put a great deal of effort into it, for which I compliment him. The point I wish to make to the honorable gentleman is that under the Conciliation and Arbitration Act there is a requirement for the President to report, but there is no provision for somebody comparable with the Commissioner of Trade Practices to report. A person who would stand in that stead would be the Registrar appointed under the Conciliation and Arbitration Act. He would not be able to report as adequately as would the President.
The President of the Conciliation and Arbitration Commission has a very real administrative service to perform because he has half a dozen presidential members and, I think, 14 commissioners to assign. A whole range of matters come before the Industrial Registrar which it is desirable for the Parliament to have a report about. The only applicable person under the Conciliation and Arbitration Act can be the President, whereas in this case the applicable person is the Commissioner because only the Commissioner can take matters to the
Tribunal. The Commissioner knows every matter that is before the Tribunal and will be able in his report to say what matters are before it. Equally, the Commissioner would be the appropriate person to report because he will have engaged in the consultations and will have control of and be charged with the responsibility of maintaining the Register.
Proposed new clause negatived.
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for -
– I move -
At the end of the clause add the following sub-clause: - “ (2.) Regulations under this section may provide that all or any of the provisions of this Act shall not apply to or in relation to all or any agreements made by, or practices of, a specified organisation or body that performs functions in relation to the marketing of primary products.”.
The proposed new sub-clause is clear in its terms. It seeks to give effect to one of the elements of the scheme as published by my distinguished predecessor, that is, to give exemption to statutory marketing boards. I am sure that the amendment is entirely in accord with the views of the Deputy Leader of the Opposition (Mr. Whitlam).
– This amendment apparently is the answer to my previous question as to when stabilisation of an industry becomes restrictive trade practice. Apparently, so long as trade agreements relate only to primary products, they will be looked upon as stabilisation of industry, whereas in most other instances they will be deemed to be restrictive trade practices.
I think the proposed sub-clause is very badly and loosely drafted. It reads -
Regulations under this section may provide that all or any of the provisions of this Act shall not apply to or in relation to all or any agreements made by, or practices of, a specified organisation or body that performs functions’ in relation to the marketing of primary products.
If it is left in that form, then I presume that those bodies that perform functions in relation to the marketing of primary products could enter into agreements to sell tractors and other things and still remain organisations or bodies performing “functions in relation to the marketing of primary products”. I suggest that we should delete the words “ performs functions “ and’ insert in their stead the words “ in as far as their functions appertain to the marketing of primary products “. That would make it clear that the provision applies only to the marketing of primary products and not to agreements for the sale of tractors, harvesters, or something of that kind.
– I see the point that the honorable member makes, but coming to the defence of the Parliamentary Draftsman I must say that this point is already covered. It is covered by the words “ all or any agreements.”. The regulation will prescribe whether all of the agreements or any of the agreements will be exempted.
Amendment agreed to.
Clause, as amended, agreed to.
Schedule agreed to.
Title agreed to.
– Before putting the question that the Bill be reported with amendments, and even though the hour is late, I should like to add my congratulations to those which the AttorneyGeneral and others have extended to the Parliamentary Draftsman on the drafting of this measure. I should like also to congratulate the Clerk and his staff for the work they have done in preparing this Bill for discussion in Committee. What they have done has made my task a great deal easier. I am sure it has also helped the
Committee in its deliberations. To all those who have taken part in this work, I extend my congratulations, and I thank them for the assistance they have rendered.
.- Mr. Chairman, following on what you have said, may I also congratulate those draftsmen associated with the Bill for producing a document that has clearly shown to the public the great disunity which exists in the ranks of the Government.
Bill reported with amendments; report - by leave - adopted.
Motion (by Mr. Snedden) - by leave - proposed -
That the Bill be now read a third time.
– 1 am not going to detain the House. It is obvious that this is a bill which has been received with mixed feelings around the chamber. But it is a bill which breaks new ground for this Parliament. It is a very substantial bill in that respect. It will be judged on its operation over the years ahead. No doubt the legislation will be before the Parliament from time to time al it settles down. But my purpose in rising to comment on it is to say that whatever views members may have individually regarding the Bill and its contents, I think they will agree that its conduct by a relatively new Minister has been a substantial personal achievement. I think that the House should join in congratulating the Attorney-General (Mr. Snedden) upon it.
.- As one who has striven throughout this debate to try to achieve some alterations to the Bill, I join with the sentiments expressed by the Treasurer and Leader of the House (Mr. Harold Holt). In congratulating the Attorney-General (Mr. Snedden) I do not disguise from him the mixed feelings I have regarding some of its provisions. While I am on my feet, I would like to thank honorable members for the patience they have shown towards me. I know that my views have not always been received with rapture. Nevertheless, I sought to sustain them. I think that time alone will show whether or not what we have done today and have concluded tonight is a cause for exaltation.
.- I cannot allow the occasion and the comments which have been made by the Treasurer (Mr. Harold Holt) and the honorable member for Moreton (Mr. Killen) to pass without saying that there has been one feature of the legislation and of the conduct of the debate which has been rather unusual; that is, that the debate went to the full limits and desires of the Government, or of the members of the Government parties who desired to participate in it. I hope that this form of democracy, which has disappeared from the Parliament under this Government, will reappear, and that the debate on this legislation heralds in a new approach to dealing with legislation in this Parliament. I hope that when legislation such as the Stevedoring Industry Bill comes before the Parliament, the Opposition will receive the same consideration as was given on this occasion to members of the Government parties whom the Government was frightened to gag during this debate because they were the Government’s supporters. I hope that we will see similar privileges extended to members on this side of the House when important legislation comes before it next year. I trust the Opposition will not be held up to ridicule for delaying legislation by sabotage and other methods which honorable members opposite used on this occasion with impunity. 1 ask the Government to display in the future parliamentary statesmanship such as it has shown on this occasion. I hope that a new approach is to be adopted by the Treasurer. If he is trying to win friends in this way, let him adopt this attitude towards the Opposition. We would like to be friends with him, but we cannot do so when he continually gags debates.
.As one who took little part in the debate but who listened very carefully to the discussion on all the clauses I should like to congratulate the Attorney-General. I think that he handled the different parts of the Bill and made his explanations in a very clear manner. It was appreciated by the Australian Country Party.
Question resolved in the affirmative.
Bill read a third time.
House adjourned at 1.31 a.m. (Wednesday).
The following answers to questions upon notice were circulated -
Repatriation. (Question No, 1228.)
The provisions of the Repatriation Act apply to persons who were, in the 1914-18 and 1939-45 Wars, and the Korea and Malaya operations, members of the Defence Force, They do not apply to persons who, in those wars and operations, performed certain tasks in association with the armed services but were not themselves members of those services.
For this last group, repatriation benefits have been provided, by Australian Governments, in the course of and subsequent to the 1939-45 War, under a series of Act of Grace schemes. There are no Act of Grace provisions in relation to the 1914-18 War, and their possible application in respect of service in Vietnam and Malaysia is at present under consideration.
The classes of persons eligible under the Act of Grace schemes administered by my department are -
members of the Citizens Forces who served in part-time service, but do not qualify as a member of the Forces as defined in the Repatriation Act;
accredited representatives of philanthropic organisations, e.g. Red Cross, Salvation Army, Y.M.C.A, Y.W.C.A., Australian Comforts Fund;
accredited Commonwealth Employees attached to the Forces, e.g. official war correspondents and photographers and representatives of the Australian Broadcasting Commission;
civil aviation personnel (R.A.A.F. Reserve) employed in forward areas;
telegraphist employees of Amalgamated
Wireless Australasia attached to the Royal Australian Naval Volunteer Reserve;
canteen staff of H.M.A. Ships;
certain New Guinea civilians; dependants of certain civilians who lost their lives .is a result of the Japanese occupation. (As agent for the Department of Territories.)
The range of repatriation benefits available under the Act of Grace arrangements, is for all practical purposes, except in the matter of appeals, the same as that under the Repatriation Act in respect of service in the 1939-45 War and Korea operations. Consideration is currently being given to the possibility of suitable appeal arrangements for Act of Grace beneficiaries.
Benefits for merchant seamen are provided under the Seamen’s War Pensions and Allowances Act
Mr. Chen Yu teh. (Question No. 1241.)
Hospital concerning Mr. Chen’s condition. Maintenance payments have been paid by the Department of the Army to the Gladesville mental authorities from the time of Mr. Chen’s internment in 1947 until his departure for Taiwan in 1965.
In March 1965, the New South Wales Department of Public Health informed the Department of Immigration that Mr. Chen had stated that he came from Taiwan and that he wished to return home. The question of Mr. Chen’s repatriation to Taiwan was subsequently followed up and Mr. Chen left Australia on 15th October 1965.
Public Service. (Question No. 1250.)
Mr.Hayden asked the Prime Minister, upon notice -
How many permanent female employees of the Commonwealth Public Service during each of the past ten years were, upon marriage, maintained in their employment under section 49 (2.) of the Public Service Act (a) as permanent employees, (b) as temporary employees and (c) without demotion?
During the past ten years there is no record of any permanent female officer of the Commonwealth Public Service, upon marriage, continuing in her employment under the provisions of Section 49 (2.) of the Public Service Act.
As statistics of the number of temporary engagements during any particular year are not compiled, only the total numbers in temporary employment at various points in time during the year being recorded, it is not possible to say how many permanent female officers were re-engaged, after marriage, as temporary employees.
Public Service. (Question No. 1251.)
Prior to 1959, the number of engagements during the year was compiled according to definitions differing from those currently in use. Figures from the earlier series have not been provided as they are not statistically comparable with those shown above.
Temporary Employees. As stated in reply to question 1 (b), statistics of the number of female temporaries engaged during the year are not compiled.
Communism. (Question No. 1346.)
Defence, upon notice -
Repatriation. (Question No. 1373.)
Stevedoring Industry: Interdepartmental Committee. (Question No. 1443)
Has consideration been given to setting up an interdepartmental committee, comprising representatives of the Departments of Trade and Industry, Labour and National Service and Shipping and Transport, to co-ordinate the proposals by those Departments for increasing the efficiency of the stevedoring industry?
The Government has already taken important steps towards increasing the efficiency of the stevedoring industry. Mr. A. W. Woodward, Q.C., has been appointed by the Minister for Labour and National Service to inquire into a wide range of matters touching the industry. He has received submissions from the Department of Trade and Industry and the Department of Shipping and Transport. Mr. Woodward has also been appointed Chairman of a national conference of all parties associated with the industry including the Department of Labour and National Service.
Apart from this, the Australian Stevedoring Industry Authority has a statutory obligation to ensure that employers and waterside workers carry out stevedoring operations efficiently.
There is no lack of co-ordination between Departments with respect to stevedoring industry proposals.
Civil Aviation. (Question No. 1456.)
From time to time the availability of seats on scheduled services on this and other services is exceeded by the demand. Special flights are then operated when there is sufficient traffic and suitable aircraft are available.
These cannot always be provided, however, and it is then normal T.A.A. service to contact Ansett-A.N.A. on behalf of the passengers to ascertain if seats are available and if so to book them. As an additional service, tickets for seats so arranged are issued by T.A.A. Similar arrangements also apply in the case of excessive demands for seats on Ansett-A.N.A. aircraft.
The airlines maintain a very close watch on the progress of bookings on all flights to ensure that sufficient capacity is provided and make the best arrangements possible to meet unusual traffic situations.
Drugs. (Question No. 1461.)
Repatriation: Convalescent Centres. (Question No. 1472.)
Poatina Irrigation Scheme. (Question No. 1475.)
Vietnam. (Question No. 1489.)
Motel at Exmouth: Liquor Licence. (Question No. 1492.)
On 16th May 1962, I made a statement setting out the Government’s policy on the permanent appointment to the Commonwealth Public Service of physically handicapped persons.
That statement indicated that, subject to the overriding requirement to maintain the efficiency of the Service, the Public Service Board would in future consider for permanent appointment, with Provident Accounts benefits, to positions for which they are qualified, physically handicapped, persons who were not previously eligible.
This relaxation was in accord with the main recommendations of relevance in the report of the Boyer Committee and extended to all applicants concessions which have previously been restricted, almost entirely, to returned soldiers.
I assure the honorable member that the cases of any applicants for appointment who have seen service in Vietnam will be considered on their merits in accordance with the policy I have referred to above.
Sale of Army Equipment
I am informed that consultations concerning the disposal of all arms, ammunition and explosives declared surplus by the three Services are held between the Department of Supply the Service departments and the Department of the Treasury. Recommendations as to disposal methods which might be used are subsequently made to the Contract Board. Every care is taken to ensure that weapons and the like are not sold indiscriminately.
Disposal of .303 rifles is effected by offering them to the National Rifle Association of Australia, which operates under the auspices of the Department of the Army. Those rifles not taken up by the Association are offered to licensed gunsmiths. Sales are not made to the general public. No .303 ammunition has been sold for at least four years as the Service departments have not declared any for disposal. If such ammunition were to become available for disposal, and I am assured this is most unlikely, it would be sold only to the National Rifle Association of Australia and to licensed gunsmiths.
At the present time any Commonwealth stocks of surplus bayonets are destroyed usually by dumping at sea. There is however no prohibition under Commonwealth law on bayonets being imported nor any control under State legislation on the sale of bayonets. In the light of representations from the States, the Minister for Customs and Excise is again looking into the question of imposing import control on bayonets.
Under State legislation persons authorised to have rifles of a military type in their possession, may import them. Before import is permitted by Commonwealth customs authorities, however, the importer is required to produce the necessary approval of police authorities in the State in which he desires to land the rifles.
As regards the recent advertisement referred to by the honorable member, several advertisements were inserted by two Brisbane disposal firms, who advertised the availability of the rifles, etc., in the Brisbane “ Sunday Mail “. Our inquiries reveal that the rifles, ammunition and bayonets were imported from Britain through licensed dealers. The Queensland police authorities are aware of the availability of the rifles, ammunition and bayonets.
With regard to sales of alleged United States Army service clothing, I am informed that other than certain footwear the Commonwealth Disposals Commission did not sell any between 1945 and 1949. It is considered doubtful whether the uniforms advertised are actually American Army uniforms. They are more likely to be locally made from material similar to that made in Australia for the United States forces during the war.
Cite as: Australia, House of Representatives, Debates, 7 December 1965, viewed 22 October 2017, <http://historichansard.net/hofreps/1965/19651207_reps_25_hor49/>.