27th Parliament · 2nd Session
The PRESIDENT (Senator Sir Magnus Cormack) took the chair at 2.30 p.m., and read prayers.
– I present the following petition:
To the Honourable the President and Members of the Senate in Parliament assembled. The petition of the undersigned respectfully showeth:
That while the Commonwealth Parliament has acted to remove some inadequacies from the Australian Social Service system, a major inadequacy still remains in that a migrant who has been a member of the Australian workforce for many years, has paid taxes and acquired Australian citizenship, and seeks to live the last years of his life in his native land or, if an invalid, wishes to see his relatives in Europe, is denied pensioner transferability.
Your petitioners therefore humbly pray
That the Senate, in Parliament assembled, seek to have Australia adopt the principle followed by Britain. Italy, Greece, Malta, The Netherlands, France, Germany, Turkey, Canada and the United States of America, who already transfer the social entitlement of their citizens wherever they may chooseto live.
And your petitioners, as in duty bound, will ever pray.
Petition received and read.
– Is the Minister representing the Minister for Supply aware that cars ducoed in black absorb heat more readily and suffer a higher interior temperature than cars ducoed in lighter colours? Has he seen reports of research which shows that black cars are more accident prone than white cars? In view of these facts, will he take steps to phase out black cars from the Commonwealth transport service and have them replaced by ones ducoed in white or other light colours?
– I have seen certain material on the points that the honourable senator raises but I would have to consult the Minister for Supply on the suggestion that the honourable senator puts to me. I shall do this and let Senator Willesee have a reply.
– Is the Minister representing the Minister for Primary Industry aware that Mr C. M. Beer, Director of the Finance and General Services Section of the Department of Primary Industry, stated that the Federal Government will be asked to provide several million dollars more to bail out the Australian Wool Commission this year? Is it factualto say that the Australian Wool Commission has stockpiled 700,000 bales ofwool worth more than$70m? Does the statement made by Mr Beer substantiate the statement by Sir Norman Giles, who described the $30m subsidy payout to wool growers as a social service handout at the expense of the taxpayers? How can the Minister reconcile the statements made by these 2 gentlemen with his answer to my question on 3rd November in which he stated that the sum of just over $20m had been actually paid to wool growers?
– The honourable senator has covered a tremendous amount of ground in that question. I would like to look at it before I reply to it.
-I address my ques tion to the Minister representing the Minister for Primary Industry. In view of the fact that Australia’s exports of meat to the United States of America have fallen short of the quota allowed for this year, is the Australian quota likely to be reduced in 1972?
– I understand that only recently the United States Government reallocated about 44 million lb of shortfalls in its imports of meat. This is according to practice. Under United States legislation the United States Government can penalise countries which fall short by redistributing their quotas. However, I point out to the honourable senator that Australia was at the peak of its meat exports to America when the dock strike took place there. That was why Australia was unable to reach its quota.I understand that under the United States agreement there is no reason to suspect that a shortfall in a particular year would be used against a country concerned when arrangements for the following year were being determined.
– I direct my question to the Leader of the Government in the Senate but it may also be of interest to you, Mr President. Has the Minister been made aware of a meeting to take place in Parliament House tonight to discuss homosexual law reform? Will the meeting be addressed by members of the Canberra homosexual law reform society? Will the society members be addressing a committee of the Parliament or any recognised parliamentary political party committee? If the society members are not to address any such committee, can it be taken that the meeting is a public meeting? Since when has Parliament House been available for public meetings? Is permission to be given to any person or group of persons to hold public meetings in Parliament House?
– The question was partly addressed to me. My attitude is bipartisan and 1 pass the question to the Leader of the Government in the Senate.
The only knowledge I have of the matter is that I have been aware of a circular that has been floating around Parliament House. It relates to certain honourable members and senators who are proposing to call a meeting tonight to discuss homosexuality. I could not imagine that it would have any bearing at all on the Parliament, but that is their decision. As to the rest of the question, it is a matter for the Presiding Officers.
– Will the Minister representing the Minister for External Territories table in the Senate or make available to senators the report on the Gazelle Peninsula troubles which was prepared by Professor Richard Salisbury?
– I shall refer the honourable senator’s request to the Minister for External Territories and get an early answer.
– I ask the AttorneyGeneral: Is it a fact as reported in a weekend publication that the Australian Security Intelligence Organisation is tapping telephones in at least one State, namely, Western Australia, without seeking his permission as Attorney-General? If so, will he give strict instructions that the practice is to cease immediately?
– I have not seen the article to which the honourable senator has referred. There are so many weekend magazines of one sort or another these days that it is difficult to keep abreast of them all. I am certainly not aware of the purport of the question which the honourable senator has asked. I would doubt very much its truth. But I shall ascertain from the Australian Security Intelligence Organisation what the position is and provide the honourable senator wilh an affirmative or a negative answer.
– How does the Acting Minister for Immigration reconcile the rejection of an assisted passage to Mr Nigel Joseph and his family with the reiteration by Dr Forbes of an immigration policy that places heavy emphasis on the reuniting of families through normal immigration processes?
– It is a matter of Government policy that eligibility for assisted passage is separate from basic policy relating to entry. As a general rule, assisted passages are granted only to people of European descent. Eligibility of a family for passage assistance is normally based on the eligibility of the breadwinner. Mr Nigel Joseph, who was born in Ceylon and described himself as a ‘burgher’ was not eligible for assisted migration but was, with his family, approved for entry to Australia as an unassisted settler. Mr Nelson Joseph, his father, who has been referred to in Press reports, travelled to Australia from Ceylon in 1962 at his own expense and not, as stated, as an assisted migrant.
– I ask a question of the Minister representing the PostmasterGeneral. It concerns the regrouping of divisional officers of the Post Office in rural areas. In view of the important role played by Mt Gambier as the main regional centre of the south east of South Australia and to promote the policy of decentralisation of industry actively being pursued by that city, will urgent consideration be given to retaining the present divisional officers of the Postmaster-General’s Department at that centre?
– I think that the honourable senator will be aware that the Postmaster-General quite recently made a statement in which the original proposals which had been announced in September were modified. The extent to which the arrangements for Mt Gambier have been changed, I am unable to say. But the honourable senator will appreciate that, if I convey his question to the PostmasterGeneral, he will receive as soon as possible an answer indicating what the position is.
Senator DOUGLAS MCCLELLANDHas the attention of the Minister for Health been drawn to legislation now before the House which, for taxation purposes, entitles a taxpayer to claim a maintenance deduction for a full time student up to tile age oi 15 years? In view ot the costs of medical treatment to Australians and the comparable high cost of medical insurance, will the Minister give consideration to requesting hospital contribution and medical benefits funds to extend their terms of membership to include as dependants of contributors full time students up to the age of 25 years?
– I ask the Minister representing the Minister for Primary Industry: ls it a fact that many export markets are closed to some meat producing countries because of the presence of foot and mouth disease? Is it also a fact that this is a highly contagious disease easily transmitted by cattle? Would not the occurrence of foot and mouth disease considerably damage Australia’s export meat markets? As Australia does not have foot and mouth disease, will the Minister ban the importation of cattle into this country in order to avoid the risk of the introduction of this dangerous disease and other exotic diseases?
– I believe that what the honourable senator says is correct: This is a very contagious and dreadful disease and over the years Australia has had some very stringent laws against the importation of cattle. I canot detail those laws at the present time but I will look into the matter and give the honourable senator an answer.
– Is the Minister representing the Minister for Primary Industry aware that a further substantial increase in overseas shipping freights for Australian fruit is to be applied shortly? Is he aware that the industry cannot bear this increased cost? What is the reason for the disparity between rates for Australian fruit and rates for New Zealand fruit after allowing for the difference in sea routes and mileages? Finally, what action will the Government take as a matter of considerable urgency to protect and preserve this substantial primary industry from the ruin which now faces it as a consequence of the proposed new freight rates?
Government has been very conscious of the increase in freights, not only in the fruit industry but also in all other export industries. Recently a committee from the Australian Apple and Pear Board went to London to try to renegotiate a lower freight rate than that asked by the shipping companies. I understand that it has returned and that at a special meeting of the Board - last Friday, 1 think - it presented its report to the Board. The proposals are not very much different from those originally sought by the shippers. 1 am aware also that the West Australian growers have 3 propositions before the Australian Apple and Pear Board at the present time and that they hope the Board will see its way clear to granting one of those propositions. The Minister for Primary Industry has kept in close contact with the Board, and the Board has kept in close contact with the Minister, on this matter and negotiations are still going on in an endeavour to reach a satisfactory conclusion.
– My question, addressed to the Acting Minister for Immigration, arises from the question asked by Senator Mulvihill. Were Maureen Joseph and her 3 children granted assisted passage from England to Australia and was her husband Mr Nigel Joseph refused such passage, the only difference being that the husband was bom in Ceylon and the pigment of his skin was dark? In view of the Minister’s reply to Senator Mulvihill that assisted passage is granted only to Europeans and is unrelated to the skills required in Australia, is this not evidence of a policy of racism of the worst kind in Australia?
– I certainly do not agree with the last part of the question but I need to find out from the Department whether what Senator Cavanagh said in the first part if his question is accurate. The information I have would indicate that that is not the case but I shall have it checked.
– Has the Minister for Health had time to study an article in the Australian ‘Financial Review’ referring to the sterling work of the Royal Flying Doctor Service? Is the Minister aware of the strains now being encountered by the Service in view of rising costs, the need for aircraft replacement, the diversifying demands upon the Service, and the necessity for the installation of single side band radio? Acknowledging the recent special Government grant I ask the Minister whether he has received any special request from the Australian Woolgrowers and Graziers Council for further assistance to individual properties which are required to install the single side band sets? If so will he give favourable consideration to this matter? Will he also look at the circumstances of the South Australian section of the Service which covers an area of the Northern Territory based on Alice Springs and which the South Australian Government is unable to assist?
It is true that in the recent Budget additional provision was made through my Department for the Royal Flying Doctor
Service. I have referred to that matter before. It is equally true that over the years the Service has done a magnificent job, particularly for people in country districts. I think that on Thursday or Friday a special presentation is to be made to Dr Fenton whom we could claim to be virtually a pioneer of the Service. I hope to be present on that occasion. The matter as to whether special representations have been made from South Australia and on behalf of certain grazing areas will need to be referred to my Department for details. When the information is made available to me I shall make it available to the honourable senator.
– Does the Minister representing the Navy recall the statement made on 18th February this year by the then Minister for Defence, Mr Fraser, that ‘Russia’s ambitions in the Indian Ocean are a threat to Australia’ and that ‘Anyone who cannot realise there is this threat has misread the lessons of history’? Has the Minister also seen yesterday’s statement by the Chief of the Naval Staff, ViceAdmiral Peek, on his return from an international seapower symposium in the United Stales which states:
There is nothing ominous about the Russian naval presence in the Indian Ocean. They arc just catching up with what we have been doing for years.
Can the Minister indicate to the Senate which of these 2 attitudes reflects Government policy on this matter?
– I saw the latter statement to which the honourable senator refers. Surely the honourable senator does not want me as the representative in this place of the Minister to comment on policy at this moment. I suggest that the honourable senator put the question on notice.
– I ask the Minister for Air whether it is a fact that during the last few days the Royal Australian Air Force has announced specifications for the proposed replacement for the Mirage fighter aircraft and that these specifications have been circulated to aircraft manufacturers in Great Britain, Europe and the United
States of America. If this is so has the Government firmly indicated to the manufacturers the requirement that the depressed aircraft industry in Australia should share in the production of this aircraft?
– Only recently in answer to a question asked by the honourable senator I said that 1 hoped that the Royal Australian Air Force would release its specifications for a replacement for the Mirage aircraft. The Air Force did so the other day. The present indications are that the Mirage aircraft will be progressively reaching the end of its fatigue life towards the end of the 1970s. The matter of a replacement for this aircraft has been under consideration by my Department for some time. I want to make the position clear. The honourable senator will appreciate that the selection of a major item of equipment such as an aircraft takes a considerable amount of time. The evaluation of various types of aircraft which are available has to be made in great depth. Invariably further information from and discussion with the manufacturers is necessary. Not the least important aspect to be taken into consideration in these evaluations is the question of local manufacture.
It is the normal practice in the case of major aircraft equipment proposals to issue Air Force staff requirements. That we have done. These requirements have been issued to manufacturers who may be able to supply the desired equipment. The issuing of Air Force staff requirements and a subsequent evaluation does not, of course, in any way commit the Government. However, should the approval of the Government for the procurement of the equipment be obtained the prior evaluation will have reduced the period between the time of the approval and the date of the placement of the order and will have provided essential information on which the Government’s decision must be based. The honourable senator will be aware also that a number of years may elapse after the placement of an order before the first aircraft is delivered. It is for the reasons that I have mentioned that approval was given last Friday for the release of the Air Force staff requirements for a replacement for the Mirage aircraft. This action was in accordance with the normal procedure and there is no intention to pre-empt or in any way commit the Government.
– My question is directed to the Minister representing the Postmaster-General. I preface it by saying that if the Minister wants the personal details I will be able to give them to him privately afterwards. 1 ask: Is the Minister aware that an electrical contractor carrying out a contract for the Postmaster-General at Mackay, Queensland, is employing only apprentices on the job? Will the Minister give an assurance that appropriate action will be taken immediately to ensure that a journeyman electrician is employed so that the contractor will then be complying with the relevant award and safety regulations and also the provisions of the Apprenticeship Act?
– I am not aware nor do I think that I should reasonably be expected to be aware - nor, indeed, should the Postmaster-General, without notice, be expected to be aware - of the facts of the situation referred to by the honourable senator. I do not know whether what he alleges is true. If the honourable senator puts a question which contains the relevant information on the notice paper an answer will be supplied in due course.
– My question is addressed to the Minister representing the Minister for Primary Industry. Why has the Australian Country Party’s national secretariat sent a questionnaire to more than 50,000 members of the Country Party asking their opinions on topics from abortion, militant unionism and migration to the health of the coalition? Coupled with the Country Party’s fading power as its rural chickens come home to roost, could this move be construed as a final desperate attempt to hold the Party together long enough to secure a few votes at the next Federal election, or is it perhaps an indication that Mr Anthony-
– Order! Senator Poke, I have warned you on several occasions and Senator Murphy has addressed honourable senators on complying with standing order 99. I should be grateful if you would conform to the wishes expressed by myself and the Leader of the Opposition as well as Ministers at the table.
– Perhaps I should redraft my question and ask it again, Mr President?
– Yes, later on.
– My question is directed to the Minister representing the Acting Minister for Repatriation. How many totally and permanently incapacitated pensioners have lost their part Service pension as a result of the increase in repatriation pensions and the operation of the tapered means test?
-] should think that that would require a detailed examination of the Repatriation Department’s files. 1 will ask for that to be done and supply to the honourable senator the information that is obtained as a result of that examination.
– 1 direct a further question to the Acting Minister for Immigration: As he has informed the Senate of the reason for the refusal of an assisted passage to Mr Nigel Joseph, why could not the reason have been given to Mr Joseph when he requested it? In view of the fact that the present policy of assisted migration could separate families and must lead to international criticism of Australia, will the Minister consider some relaxation of the present policy which is prejudical to non-Europeans?
– I think all I can do in the circumstances is to direct this question to the responsible Minister when he returns. It will be appreciated that I am acting for him only temporarily. The honourable senator raises matters of policy that have a marked effect on the administration of the Department of Immigration. Although 1 would like to help Senator Cavanagh, I do not feel I should take it upon myself to make policy judgments on behalf of the Minister for Immigration who is absent.
– Has the attention of the Minister for Health been drawn to the recommendations of the South Australian branch of the Australian Medical Association concerning smoking and health, particularly the recommendation to abolish all forms of cigarette advertising and the recommendation to print health warnings on all cigarette packets?
Yes, my attention has been drawn to the views expressed. I would imagine that they will be conveyed to me in more precise terms than 1 have read them so far in one of the journals. The views expressed are consistent with opinions voiced at other levels by other groups and organisations. I think I have answered similar questions in this place by indicating that it seems to me, to the Government and to my Department that there is indeed a necessity to have a high degree of uniformity in Australia in relation to these matters. Senator Georges shakes his head. I think he disagrees, with me, but that is not unusual.
– What about in our own Territories?
Senator Sir KENNETH ANDERSON- 1 have provoked him into interjecting. The fact is that we have expressed the view - I repeat it - that there is a high degree of necessity for co-operation between the States in relation to these matters. That matter has been canvassed and is still being canvassed.
– My question is addressed to the Minister representing the Minister for Education and Science. Is it a fact that under the financial formula applied to universities, the University of Queensland and the Queensland Government must raise a combined 65 per cent of income to qualify for the 35 per cent assistance granted by the Commonwealth? Is he aware that the Queensland Government, because of special financial difficulties arising from drought and other factors, has indicated that it can provide a maximum of only 42 per cent, leaving the university itself to raise 23 per cent? Is he aware that this is the highest financial burden faced by any university in Australia? To ensure that young Queenslanders do not suffer in the present economic situation confronting their State and their university, will he consider granting an increased number of Commonwealth scholarships to Queensland?
– I feel that the honourable senator’s suggestion to remedy the position, as outlined in his question, would be inappropriate. I think that the most inappropriate occasion to ask for the announcement of increased scholarships is at question time by a question without notice directed to an individual Minister. I remind the honourable senator that university finance has been granted upon a very thoughtful and sound basis. The basis is that even governments do not enter into the direct field of negotiation or decision. The Australian Universities Commission has been created. The Commission’s recommendations, made after consultation and negotiation with each university, come before the Government so that the universities’ independence of direct government decision can be preserved as much as possible. It would be within the knowledge of all honourable senators that the Commonwealth Grants Commission Act provides the procedures for making special grants to States to which the Commonwealth is expected to respond. If the grant is in the nature of an emergency grant, the Premier has to vouch for the situation in an application to the Prime Minister.
– Has the Minister for Health noticed the reports of the most recent public relations extravaganza performed by the Leader of the Opposition in Adelaide when he outlined the policy of the Australian Labor Party concerning national health? Can the Minister give an estimate of the approximate cost of these proposals, and state whether it is possible to provide free hospitalisation and a free dental scheme for school children and to establish one health commission to replace the existing health funds, at a cost per taxpayer of 1.3 per cent of taxable income?
I think the honourable senator anticipated that I would have made an examination of this matter. I read in the newspaper some reference to ‘withering on the vine’. That rather reminded me of what Keats once said. I will not presume to quote him here, but he made a reference to ‘withering’, too. His first lines were: ‘Oh what can ail thee, knight-at-arms, alone and palely loitering?’ I invite everybody to examine the rest of the verse. The report of the Opposition’s proposal in the health field certainly has received my attention, mainly on account of the very point raised by the honourable senator. I refer to the very heavy expenditure involved in the proposals. Some costing has been undertaken, at short notice, in relation to the Opposition’s proposal to increase the levy on taxable income to 1.3S per cent and to raise the level of exemption of low income families to $1,730 per annum. Honourable senators will be aware that Commonwealth expenditure on medical and hospital benefits now approximates $250m per annum. Preliminary cost estimates of the Opposition’s revised proposals indicate that they would involve expenditure of the order of $420m per annum, an increase of Si 68m over current expenditure. I should stress that these preliminary cost estimates relate only - I repeat only’ - to medical and hospital benefits.
The various proposals of the Opposition cover a wide range of other health matters and consequently involve considerable additional expenditure apart from the Si 68m per annum which I have mentioned already. For example, Senator Jessop has referred to the Opposition’s proposal in relation to dental health, as presented by Dr R. T. Gun. I need point out only that Dr Gun’s own estimate of the cost of implementing these proposals - an estimate which has every indication of some unreliability - is not less than S45m per annum, apart from very considerable capital expenditure which would be involved in them. I should mention another Opposition proposal which has just been announced. I refer to the listing of oral contraceptives as pharmaceutical benefits. This may appear to be a relatively incidental item, but I feel sure that honourable senators will see it in another light when I say that provisional cost estimates of this proposal alone are of the order of $26m to $36m per annum, based on current factors available to information.
I have mentioned only 3 items. I could mention others, such as free pharmaceutical benefits, regionalisation of hospitals on a national basis, establishment of a national hospitals commission and so on, and have them costed. Not taking into account these other items, but taking into account the 3 that I have mentioned, I have indicated that estimated additional Commonwealth expenditure totalling $239m to $249m per annum is involved. Clearly this would constitute a very heavy burden on the Australian taxpayer. All in all the Opposition’s proposals in the health field involve costs which place them far beyond the bounds of practicability.
My question to the Minister for Health follows from the question asked by Senator Jessop. In making an assessment of the figures just mentioned by the Minister did his Department take into consideration the saving in cost of administering the 114 medical and hospital insurance schemes which are now in existence by the establishment of one scheme administered by a national health insurance commission, which was recommended by the Health Insurance Committee of Inquiry, known as the ‘Nimmo Committee’, and which a former Minister for Health undertook to implement?
I am unable to answer in relation to statements made by a former Minister or to comment on any undertaking given by him to implement a scheme. The fact is that any decision which was taken would be a decision of government. That is the first and foremost point to remember. As to the remainder of the question, the information which 1 obtained was based on a statement which has appeared in the Press and it was based on my understanding of the question as it was put to me. If the honourable senator wishes to present his views on the statement he may do so by incorporating them in a question on notice so that I may have those aspects evaluated.
– Is the Minister representing the Minister for the Interior aware that under the present system of land sales in the Australian Capital Territory up to 80 per cent of average home purchasers are compelled to pay an extra sum of at least $2,500? Will the Minister take immediate steps to have the National Capital Development Commission release sufficient land for home building so that the purchase price for a building allotment never exceeds the reserve price?
– I was under the impression that the average cost of land in the City of Canberra was fairly reasonable when compared with some prices paid by home builders for land in other cities.
– Not when the big speculators move in.
– This was the impression I had.
– Order! Senator Keeffe, 1 would be grateful if you would ask your question and then listen to the Minister’s reply instead of asking supplementary questions while the Minister is replying to your question.
– It is obvious that Senator Keeffe has a different impression. The only way that we can resolve this matter is by directing the question to the responsible Minister.
– I call Senator Poke. Is this the rephrased question?
– No, but it too is directed to the Minister representing the Minister for Primary Industry. I preface my question by referring to the Minister’s endorsement last week of Sir William Gunn’s notorious activities in selling out large areas of Australia. Is the Minister aware of the remarkable statement by the Acting Prime Minister, Mr Anthony, in Sydney yesterday in which he discussed the question whether it was possible to find ways of marshalling the savings of Australian people so they would have the confidence and opportunity to invest in the ownership of their own industries? How can the Acting Prime Minister have the effrontery to suggest this when the Government has allowed a takeover by foreign interests of a great part of our natural resources and industries? Will the Minister ask Mr Anthony to refrain from such tasteless suggestions at a time when the majority of Australians are crying out for the Government to legislate to prevent this massive takeover of our nation?
– 1 have not seen Mr Anthony’s statement in full. I shall read it and I shall convey the honourable senator’s point of view to Mr Anthony. If he has any comments, he will direct them, through me, to the honourable senator.
– I direct a question to the Minister representing the Minister for Defence. When did he personally first become aware of requests for military advisers for the Cambodian forces? Was it as early as April this year?
Senator Sir KENNETH ANDERSONI ask that this question, like the question asked earlier by the honourable senator, be placed on the notice paper. I am asked to give my recollection of when I thought of something. I think of many things during the day, particularly during question time.
– Can the Minister representing the Postmaster-General advise the Senate whether the week-end incident at the Sydney General Post Office when a foreman of a contract cleaning firm hosed a group of people who were fasting in support of relief for Pakistani refugees was in accordance with official policy of the Postmaster-General’s Department or whether it was just the act of a petulant industrial misfit?
– I think I can answer the question on behalf of the PostmasterGeneral by saying that what was done was not in accordance with the PostmasterGeneral’s policy. I think the person who caused the incident gave his reasons to newspaper reporters and the reasons are in the Press to be seen by those who want to read them.
– I ask the Minister for Health whether he is aware of a statement made by the Postmaster-General in another place on 6th October in which he said:
Since commercial television organisations depend upon advertising revenue to conduct their operations, it is believed by the Government that there should be no prohibition on advertising of cigarettes and tobacco.
Does he disagree in any way with that statement?
-I was asked this question previously. As I recall, I gave the reply that there was some restriction in relation to the advertising of tobacco smoking on television and that a new code became operative from 1st October which provides that such advertisements cannot be shown during certain hours of transmission.
– It provides that you cannot use certain words.
No, it goes beyond that. It provides, for instance, that during periods of transmission when it is believed children are watching television, such advertising is not permitted. I am not suggesting any impropriety on the honourable senator’s part in quoting the Postmaster-General, but the quotation is not in accordance with the facts. We need to see with precision what the Postmaster-General said and the full context in which he said it. Quite clearly, there is a code which is applicable and which restricts advertising on television during certain hours, those hours being hours when, it is believed - and this may be arguable - children are watching television.
– Is the Minister for Health aware of the inadequate medical facilities available at Wave Hill and Delissaville Aboriginal welfare settlements in the Northern Territory? Is he aware also that each of these settlements has only one qualified nursing sister who is on call for 24 hours a day. 7 days a week? Will the Minister visit all Aboriginal welfare settlements in the Northern Territory at an early date to acquaint himself at first hand with existing health problems?
– 1 would like to bc able to say yes to the last part of the honourable senator’s question, but time is limited in these matters. In my first month as Minister for Health I was able to visit some of the Aboriginal settlements in the Northern Territory and I have expressed certain views about some of them. As the Senate knows, we are moving into a period, particularly in Alice Springs, in which we hope to be able to treat Aboriginal children brought in from settlements. I would like to visit Wave Hill again. I visited there as a member of the Public Works Committee many years ago.
Most settlements with nursing facilities in the Northern Territory are not within the administration of the Department of Health, but that of the Welfare Section of the Department of the Interior. At present very close discussions are taking place between representatives of the Department of the Interior and my Department with particular reference to the nursing centres at the various settlements.
– There will be 2 more questions, one each from Senator Georges and Senator Cavanagh.
– I refrain from comment, Mr President. I ask the AttorneyGeneral whether he has issued a summons against a person in Queensland, based on the evidence given by that person before a select committee of this Parliament? If so, will this action complicate the consideration of privilege at present being undertaken by this Parliament?
– I think I am aware of the circumstances to which the honourable senator has referred. Whilst it is true that I have caused an information to be issued against a person lor an unauthorised interception of a telephone call I do not regard it as being based upon evidence given to a House of Representatives select committee, although the knowledge that such an interception had occurred arose in the course of evidence which was given to that committee. Subsequently investigations were made and on the strength of those investigations a prosecution was launched. I would not regard the matter as in any way impinging upon or affecting the privilege of either House.
– My reason for saying there would be two more questions is that a long list of answers has been provided to questions on notice. However, I do not want unduly to repress or to restrict the rights of honourable senators in these matters.
– I would suggest with respect, Mr President, that it should be a subject for debate at some time.
– I would be grateful if the opportunity arose, either in the Standing Orders Committee or in a debate on a report of the Standing Orders Committee.
– I ask the Minister representing the Minister for National Development: Under the renewed 5-year forestry agreement is the Government to reduce the softwood planting allowance of 5 States by 18 per cent and that of South Australia by 67 per cent, thus unfairly treating South Australia? Will South Australia’s planting of softwoods be reduced from 1,500 acres a year to 500 acres a year? Is this a punishment for South Australia because of its initiative in the early establishment of a softwood industry?
– If Senator Cavanagh directs his attention to the House of Representatives Hansard of Thursday, 4th November, he will find on pages 3008 and 3009 a very long answer to a question. A great number of interruptions are reported, but the answer fundamentally bears on the point raised by Senator Cvanagh. I will not read the answer because it is already available to the honourable senator. The history of softwood planting in this country shows that South Australia first showed initiative in this area, and the rest of Australia owes quite a deal to South Australia’s beginning and understanding of softwood planting. When the Commonwealth forestry programme of assistance to the States was generated it was very clear that 2 things would happen, the first of which would be that the other States would begin to catch up with South Australia following a late start. Secondly, as South Australia had already established a substantial forest estate it would not necessarily be in the same area of assistance as other States. As I understand the problem - I was associated with some part of it before I came to this
Senate - South Australia also has some substantial limitations wilh respect to available land. That would be my general understanding of the matter. I would be very surprised indeed - in fact I think it would be quite unlikely - if any conscious attempt to disadvantage South Australia had been made. I think it would relate to the established forests in the State which are very substantial, lt would relate also to the supply of available land at economic prices. But, beyond that. I will get extra information for the honourable senator. I again say that a long answer appears in Hansard for the House of Representatives of last week.
– My question is directed to the Minister representing the Minister for the Environment, Aborigines and the Arts. Has any recent change occurred in the Government’s approach to the matter of encouraging and assisting, financially or otherwise, the activities of small art galleries and local communitysponsored cultural centres, whose continued operations are highly desirable but whose future in many instances is clouded by increasing costs and other problems associated with their maintenance and running? Will the Minister now or, if it is more appropriate, at a later stage outline the current attitude of the Government to this matter?
– I am unable to give an answer at this time to the honourable senator’s question. I shall ask the Minister for the Environment, Aborigines and the Arts to provide suitable information for the honourable senator.
– My question is directed to the Minister representing the Prime Minister. Today I asked a question of the Minister for Education and Science concerning the peculiar financial problem facing the University of Queensland. Is the Minister aware that, because of present economic difficulties, the Queensland Government has applied or is applying for Queensland to be declared a claimant State? Is it a fact that a declaration of this nature would allow Queensland to seek special financial assistance from the Commonwealth to overcome its present financial problem? Will the Minister, in the existing economic situation, consider also reducing the heavy financial burden on the University of Queensland by suspending temporarily or amending the financial formula applying to the percentage of finance which must be raised by the State Government and the University to qualify for Commonwealth assistance?
The honourable senator has asked a comprehensive question. The judgment that I would make is that rather than the question being directed to the Prime Minister’s Department by me it should be broken up into 2 parts. The first part should be directed to the Treasurer because of the implications of the suggested application to declare Queensland a claimant State. The second part of the question which relates to the University of Queensland should be directed to the Minister for Education and Science who deals with such matters. I suggest that the question should go on notice in 2 parts to be dealt with by the relevant Ministers.
– Will it receive an urgent reply?
If the end result is not satisfactory, the honourable senator may pose the problem to me and I will see whether I can sort it out for him. The critical part of the question as to Commonwealth relationships with States, whether claimant or not, should be directed to the Treasurer. Universities are dealt with by the Minister for Education and Science who is represented in the Senate by Senator Wright.
– Would you suggest that I put both parts of my question on notice?
Senator Sir KENNETH ANDERSONYes.
– My question is directed to the Minister representing the Minister for Primary Industry. Is it a fact that the Australian Wool Commission has negotiated with the private banks a further loan of$30m at 6.5 per cent repayable by 30th April next? Also, is the Government aware of how the Commission plans to reduce its stockpile of wool when the international currency situation is resolved, as the Commission’s optimistic plan would involve substantial reductions of a stockpile of 70,000 bales of wool valued at in excess of $70m? Can the Minister say when the Government will act to create a viable economic plan for the wool industry instead of allowing the Commission to build up huge stockpiles in the farcical hope that it can keep prices up and finally allow the disposal of all of the wool stock piled?
-I do not know what the honourable senator is trying to make out of the stockpile of wool. The stockpile of wool at present is no higher than it has been in years past. The point is that the industry itself holds the stockpile at present, instead of the speculators and manufacturers having the wool in the pipeline.
– At give away prices.
– Yes, at give away prices. I suggest that the honourable senator puts the remainder of his question on notice.
– Is the Minister representing the Treasurer aware that the cut-off of American aid to underdeveloped countries will seriously affect Australian export markets, particularly in the Asian area? Can the Minister advise the Parliament of the steps the Australian Government is taking to overcome this problem?
Senator Sir KENNETH ANDERSONThere has been some publicity given to a statement made about a proposed cut-off of American aid consequent upon a decision taken in the American Senate. 1 would need to have the question referred to both the Treasurer and the Minister for Foreign Affairs, 1 believe, in order to get the current situation. Subsequent to that decision of the American Senate there were a presidential statement and other statements in relation to this matter. This is a valid question but I feel that the honourable senator should direct it onnotice to both Ministers in order to get a considered reply.
(Question No. 1280)
asked the Minister representing the Treasurer, upon notice:
The Treasurer has provided the following answer to the honourable senator’s question:
As from 1st July 1971 the Australian National Line (A.N.L.) increased its general cargo freight rates. It is understood that other shipping companies servicing Tasmania also adjusted their rates. The freight increases announced by the A.N.L. were in accordance with the principle of each route contributing realistically to the cost of providing its own service. The Melbourne/Tasmania trade received the lowest increase (8 per cent) ofthe general cargo trades. The Senate Committee on Primary and Secondary Industry and Trade recently reported on Freight Rates on Australian National Line shipping services to and from Tasmania and indicated that it believed the increased rates applying from 1st July 1971 were justified in the circumstances.
The recent increases in freight rates have been no more than were necessary to cover increased costs and in no way discriminate against Tasmania.
(Question No. 1247)
asked the Minister representing the Prime Minister, upon notice:
The Acting Prime Minister has provided the following answer to the honourable senator’s question:
(Question No. 1322)
asked the Minister representing the Treasurer, upon notice:
The Treasurer has provided the following answer to the honourable senator’s question:
National City Bank, for a consideration of $19. 6m. This will result in the First National City Bank, through its subsidiary, holding 22.6 per cent of the issued ordinary capital of Industrial Acceptance Corporation Ltd. In addition, the First National City Bank will purchase the 11 million shares held by the Australian and New Zealand Banking Group Ltd in the parent company, IAC (Holdings) Ltd, for an undisclosed amount. The result will be that in due course First National City Bank will hold a 21.7 per cent equity, interest in IAC (Holdings) Ltd. The intention is that the transactions will take place in stages over a period of years; when they have been completed the overall result will be that First National City Bank and its subsidiary, Nessus Investment Corporation, will together hold a 40 per cent equity interest in the IAC group of companies.
(Question No. 1411)
asked the Attorney-
General, upon notice:
– The answer to the honourable senator’s question is as follows:
(Question No. 1470)
asked the Minister representing the Minister for the Interior, upon notice:
– The Minister for the Interior has provided the following answer to the honourable senator’s question:
The Company has a proposal to develop a community living area on the property which will provide married accommodation for employees and suitable accommodation and facilities for other people who reside on the property. Government assistance in the development ofthe project is now under discussion with the Company.
In addition the Government has appointed a Committee to examine and report on the situation of Aborigines on pastoral properties to see what steps might be taken to improve the social and economic situation of various groups. The Committee expects to present its report late this year.
(Question No. 1518)
asked the Prime
Minister upon notice:
Senator Sir KENNETH ANDERSONThe Acting Prime Minister has provided the following reply to the honourable senator’s question:
Senator Sir KENNETH ANDERSONMr President, in response to a question asked of me earlier by Senator Davidson about flying medical services in the Northern Territory I said, I think, that Dr Fenton was the founder of the Royal Flying Doctor Service. In saying that I did a grave injustice to the very famous Reverend Flynn, who is also known as Flynn of the Inland. I was referring, of course, to the Northern Territory Aerial Medical Service, of which Dr Fenton was the founder and pioneer. He flew the first aeroplane out of Katherine and Darwin. As I mentioned earlier, Dr Fenton is to be honoured at a ceremony which is to be held this week and at which I hope to be present.
(Question No. 1491)
asked the Minis ter representing the Minister for the Interior, upon notice:
– The Minister for the Interior has provided the following answer to the honourable senator’s question:
It is considered that the Corporation of the City of Darwin has not used pesticides excessively but only for the purposes normally expected from a City Council.
(Question No. 1256)
asked the Attorney-
General, upon notice:
What progress is being made towards publication of an updated, consolidated and annotated set of Commonwealth Acts’?
– The answer to the honourable senator’s question is as follows: 1 have recently considered the question whether a general reprint of Commonwealth Acts should be undertaken, and have determined that work should be put in hand towards the production of such a reprint.
The drafting and enactment of a Statute Law Revision Bill, which reduces considerably the overall size of a reprint by repealing Acts and portions of Acts the operation of which is exhausted and makes necessary amendments of a non-contentious nature, is desirable before a general reprint is undertaken. Such a Bill is usually enacted towards the end of a year’s sittings and becomes the last Act of the year, so that Acts passed earlier in the year can if necessary be dealt with in the Bill. Anofficer of the Office of Parliamentary Counsel is already engaged in the preparation of a Statute Law Revision Bill, but the drafting and settlement of such a Bill in consultation with all the departments that administer Commonwealth Acts will necessarily take a substantial period.
(Question No. 961)
asked the Minister representing the Treasurer, upon notice:
The Treasurer has provided the following answer to the honourable senator’s question:
(Question No. 1308)
asked the Attor ney-General, upon notice:
– The answer to the honourable senator’s question is as follows:
(Question No. 1330)
asked the Minister representing the Postmaster-General, upon notice.
– The PostmasterGeneral has provided the following answer to the honourable senator’s question.
(Question No. 1440)
asked the AttorneyGeneral, upon notice:
Has the Attorney-General, as promised on 28th September 1971, discussed with Senator Gair the allegations made by him regarding Union of Soviet Socialist Republics inspired sabotage in the trade unions and public service, and has Senator Gair provided any evidence to support his allegations?
– The answer to the honourable senator’s question is as follows: 1 have discussed the allegations referred to with Senator Gair. I refer to my answer to Question No. 1411.
(Question No. 1451)
asked the AttorneyGeneral, upon notice:
– The answer to the honourable senator’s question is as follows:
(Question No. 1493)
asked the Minister representing the Treasurer, upon notice:
The Treasurer has provided the following answer to the honourable senator’s question:
(Question No. 1517)
asked the Minister representing the Postmaster-General, upon notice:
– The PostmasterGeneral has provided the following answer to the honourable senator’s question:
(Question No. 1544)
asked the Minister representing the Minister for the Navy, upon notice:
– The Minister for the Navy has provided the following answers to the honourable senator’s questions:
Three Guided Missile Destroyers (DDG)
Six Destroyer Escorts (DE)
There are also 2 destroyers near the end of their useful lives operating in the training role.
Ships would phase out as follows:
Destroyers - early 80’s
Guided Missile Destroyers - mid to late 80’s
Destroyer Escorts - mid 80’s to early 90’s
It is planned to introduce new Destroyers from about 1979 but a decision on whether such ships will be acquired has not yet been made by the Government.
– On 5th October 1971, Senator Devitt asked the following question, without notice:
Did the Chairman of the Australian Capital Territory Advisory Council, Mr Pead, in evidence before the Joint Committee on the Australian Capital Territory in public session last Friday, state that he believed the Minister for the Interior had written to the management of the Commonwealth Brickworks (Canberra) Ltd indicating that the factory’s operations would be phased out over 10 years but that an element of mystery or secrecy surrounded this letter. Does such a letter exist? If so, what are its precise terms?
The Minister for the Interior has provided the following reply to the honourable senator’s question:
Discussions are taking place with the Directors of Commonwealth Brickworks (Canberra) Ltd concerning financial and other arrangements to apply to the continued operation of the Commonwealth Brickworks but these have not been concluded and no decisions have been reached.
– Pursuant to section 9 of the States Grants (Teachers Colleges) Act 1970, I present a statement setting out the payments that have been authorised by the Minister for Education and Science under this Act during the financial year 1970-71 and specifying the projects in relation to which the payments have been so authorised.
– (Tasmania - Minister for Works) - For the information of honourable senators, I present a statement setting out the amounts paid as per capita grants to independent schools in the Australian Capital Territory and the Northern Territory during 1970.
– Pursuant to section 40 of the Australian National Airlines Act 1945-1970, I present the twentysixth annual report of the Australian National Airlines Commission for the year ended 30th June 1971 together with financial statements and the report of the AuditorGeneral on those statements.
– Pursuant to section 39 of the Australian Coastal Shipping Commission Act 1956-1969, I present the annual report on the operations of the Australian Coastal Shipping Commission for the year ended 30th June 1971, together with financial statements and the Auditor-General’s report on those statements.
Assent to the following Bills reported:
Phosphate Fertilizers Bounty Bill 1971.
Live-stock Slaughter Levy Bill 1971.
Railway Agreement (Western Australia) Bill 1971.
(3.47) - After conferring with Party Leaders, it was agreed that we would rearrange the business paper for today to enable the passage of the Supply Bill (No. 3) 1971-72. Because of the need to have a certain, amount of time available, it was agreed that the Estimates committees should not sit tonight but that we should deal with orders of the day Nos 1, 11, 12 and 14 on the notice paper. I have just received a message that the Supply Bill (No. 3) 1971- 72 has been passed by the other House, and I have conferred with the Deputy Leader of the Opposition (Senator Willesee). When the message arrives in this place I want to be in a position to bring on that matter and dispose of it so that we can then deal with the other Bills. I move:
I propose this motion on the understanding that we dispose of the Supply Bill (No. 3) 1971-72 if the message is received before we deal with these other matters. I hope the Deputy Leader of the Opposition is happy with that.
– Are you agreeable to that course being followed?
– Yes. There will be no Estimates committees sitting today?
No Estimates committees will sit today.
– by leave - I would like to make a few very brief comments on this motion. It has worried me for a long while that we have not been able so to organise the business of the Senate that the ordinary back bench members of this place have any idea for any period of time before a matter comes on just what the procedure will be. It seems to me that there is a very grave shortcoming. Some concerted effort should be made so to order the business of this chamber that at least we know exactly what we are going to do for the day. I know that there are very great difficulties in the way of instituting practices of this kind but, after all, this is the Parliament of the nation. For the 6 years that I have been here I have thought that the business of this chamber ought to be run on very definite lines. In fact, it is the business of the Parliament of the nation, which is the greatest institution in the land. Some means ought to be found so to order the business of this place that honourable senators will know for some reasonable time in advance what will happen.
– Particularly in relation to urgency motions. You would agree with that, would you not?
– This is something which is within the control of the chamber itself. I am just putting a simple proposition. I believe that the difficulty that I have experienced has been experienced by every honourable senator in this chamber also. I do not want to upset the proceedings today, nor do I want to delay the business of the Senate unduly, but I make the simple point that if this is the greatest institution in the land it surely ought to be possible for some organisational work to be done so that at the commencement of the day’s business we know what we will be doing.
Often people who visit this chamber say that they look into the chamber and see a paucity of honourable senators present. It is never properly explained to them, of course, that we are attending to other tremendously important business such as electoral work with which we deal from the time we arrive in this place till the time we leave it. It is not always possible for us to be here in this chamber. But if we had some reasonable knowledge beforehand as to what the proceedings of the House would be we could so order our own affairs that we could deal with the matters before us. I have prepared speeches from time to time on a number of issues and on occasions the particular matters have been listed on the business sheet for as long as a fortnight.
I am not offering this comment in any destructively critical manner, but I do make the suggestion - in fact, I make the plea - that some concerted effort be made to overcome this difficulty. I do not know whether we need to form some sort of sub-committee of the Senate to try to resolve some of the problems which arise. I find it a most perplexing, a most difficult and a most frustrating experience - I suggest this is the common experience of us all - not to know 2 hours beforehand exactly what is going to happen. Surely if this is the Parliament of the nation we ought to give a great deal more time and attention to ordering our business so that we know what we will be doing for the day in question at least.
– The only observation I make is that looking at the legislation emanating from the House of government is like looking through a glass darkly. I think the facts of the matter could be explained by the Leader of the Government in the Senate.
Senator Sir KENNETH ANDERSON (New South Wales - Minister for Health) (3.53) - in reply - I do not walk away from what Senator Devitt has said. There is a lot of good sense in it. I am always very conscious of the problem and tryto reduce the difficulty. I do not want to make too much of it, but if we pass the Supply Bill (No. 3) it will to some extent take a little of the pressure off us in relation to our Estimates committees and the passage of the appropriations Bills. We have been pressing hard with our Estimates committees in order to get our appropriations legislation through. It is because of the inherent risk that we may not get that legislation through quickly enough that we need to have the Supply Bill (No. 3) passed. It is purely a mechanical Bill. It will take the weight off myself, the Party Leaders in the Senate and honourable senators generally. I am still anxious, as I know everybody is, that we completeour business when the other place completes its business which, it is predicted, will be on 9th December.
Question resolved in the affirmative.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Cotton) read a first time.
– I move:
That the Bill be now read a second time. The Bill now before the Senate extends the operation of the Sulphuric Acid Bounty Act 1954-1970 until 31st May 1972. Under the existing Act bounty ceased to be payable after 31st December 1970. The Pyrites Bounty Act 1960-1970 also expired on 31st December 1970 and I shall shortly introduce a similar Bill to extend that Act for a further period until 31st May 1972. As the Senate is no doubt aware the pyrites and sulphuric acid industries are closely allied. Bounty is paid on iron pyrites delivered into a sulphuric acid manufacturer’s premises for the purpose of being used in that manufacture and is also paid on the sulphuric acid produced from the iron pyrites. In addition bounty is paid on the acid produced from lead sinter-gas. Because of this close alliance I shall deal with the reason for the extension of both Acts in this speech.
The Tariff Board in its report which was released on 20th May 1971 recommended that the Government’s obligation to the sulphur and sulphuric acid industries could be most appropriately fulfilled by payment of lump sum compensation. The Government has decided to accept the Board’s recommendation. However in order to give the industry a reasonable period of time to plan to meet the new circumstances it has also decided that bounty shall continue until 31st May 1972, after which date compensation will be paid. T commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Cotton) read a first time.
– I move:
That the Bill be now read a second time. It is proposed to extend the operation of the Pyrites Bounty Act 1960-1970 until 31st May 1972. The purpose of the Bill is to implement this proposal. I have already outlined the reasons for this extension in my speech concerning the extension of the Sulphuric Acid Bounty Act. I commend the Bill to honourable senators.
Debate (on motion by Senator Cant) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(3.57) - I move:
That the Bill be now read a second time.
The purpose of this Bill is to obtain further Supply under the Appropriations for salaries and payments in the nature of salary for all departments, for war and service pensions and allowances and for certain other services amounting to $138,215,000 and will enable these services to be met until the moneys provided in the Appropriation Bill (No. 1) 1971-72 are available. The sums sought in this Bill do not in any way reflect an increase in the amounts included for these purposes in the 1971-72 Budget.
Additional Supply is needed for 3 reasons. Since the Supply Bill (No. 1) 1971-72 was introduced on 27th April some 19 salary determinations and awards have come into operation. Although the Appropriation Bill (No. 1) 1971-72 provides for most of these, it will be clear that the provision made in the Supply Act (No. 1) for salaries and payments in the nature of salary is inadequate. Nor will it be possible to fund all of the deficiency from the Advance to the Treasurer. Secondly, by Acts Nos 68 and 69 of 1971, Parliament increased war and service pensions and allowances by varying rates. No provision was made for these increases in the Supply Act (No. 1), nor could the requirement have reasonably been forecast in April last. An additional $ 19.5m is needed to enable these pensions and benefits to be met up to and including pension payday 9th December 1971. Thirdly, it is now necessary to extend the Supply period beyond 30th November. That was the point to which I referred earlier when I replied to Senator Devitt. For a number of years it has been the practice of the Parliament to grant the Government Supply for a period of 5 months, that is, to 30th November. To enable the parliamentary time-table for the passage of the Appropriation Bills to be conveniently met it is now desired to provide additional Supply for the purposes set out in the Schedule to this Bill to meet anticipated payments to 17th December. I commend the Bill to honourable senators.
– The Opposition does not intend to take the adjournment of this Bill, as would be customary in normal circumstances. Mr President, as you know, this Bill was dealt with very rapidly in another place. The reasons why it was introduced have been outlined. It will ensure that the normal services of government can continue beyond the date to which Parliament has agreed, 30th November, until 17th December. By that time the Budget and its associated papers will have been dealt with by both Houses of Parliament. Then the normal machinery will be set in action to take the services past 17th December to the new year. For that reason the Opposition wishes to facilitate the passage of this Bill.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
Debate resumed from 14th October (vide page 1380), on motion by Senator Greenwood:
That the Bill be now read a second time.
– The Attorney General (Senator Greenwood), in his second reading speech, said that this Bill was an interim or holding measure, pending introduction of strengthened legislation. I hope that we will not have to wait as long for the strengthened legislation as we did for the 1965 Act after Sir Garfield Barwick introduced his original proposals about 11 years ago. For 5 years nothing happened and then the Government introduced a cynically emasculated version of his proposals. When this legislation came before the House of Representative at the end of 1965, curious last minute amendments were introduced by the Government which would have destroyed the legislation entirely. Luckily, in the Senate, we were able to delete those last minute amendments and restore some degree of potency to the Act, although the legislation remained feeble. It then took 2 more years of procrastination by the Federal and State Liberal parties before the operative parts of the Act were proclaimed, and the Commissioner for Trade Practices, Mr R. M. Bannerman, began to work away at the mountain of restrictive practices which faced him.
Today, after 4 years of operation, with a staff of only 79 and access to 7 legal consultants, Mr Bannerman is faced with 13,276 registered examinable agreements. In his report for 1971 Mr Bannerman warned that progress needs to be accelerated. He said:
Unless progress does become quicker the legislation will take many years to produce a general impact against restriction of competition and in favour of competitive attitudes.
He said also that the processes of the Act would take years to deal with the agreements and practices that require attention. He added:
The pattern of restriction will remain in Australia for many years if most cases are to be dealt with case by case at the Commissioner’s level, subject to secrecy, and without the assistance of general rules either in legislation or in decisions of the tribunal.
Senator Greenwood said that this Bill is being introduced to meet the constitutional requirements following the High Court judgment in the concrete pipes cases. So this Bill really is designed merely to close a drafting loophole. Following its passage, the law in this nationally vital area will still be a model of impotency, a monument to the Government’s determination to put the interests of big business, monopolies and multi-national corporations before the interests of the public. Australia has a reputation abroad as the last frontier for economic banditry - a place where monopoly power rides unchecked by laws considered to be basic necessities in other modern industrialised nations.
The economist for the Australian Mutual Provident Society, Dr Bell, has stated that the intensity of industrialised concentration in this country is perhaps the highest in the world, with our economy dominated by about 200 companies, of which 40 are titans of the business world. Of these giants, 40 per cent are owned or substantially controlled by overseas interests. What does our intrepid Government pit against this massive framework of economic, social and political power? What legislation faces this juggernaut in the public interest? A Trade Practices Act containing as many bolt-holes as a medieval English priory.
The reality is that the legislation was never intended to work in the true public interest. The Government now is reacting to public pressure to block the loophole revealed by the recent High Court judgment. But the Government is careful to ensure that despite the challenging opportunity for worthwhile legislation opened up by the judgment, the legislation will remain without teeth and will be incapable of protecting the community.
In his book ‘Australian Monopoly Law’, Dr Geoffrey Walker refers to the 200 firms holding the bulk of economic power in the business sector of the economy, and tells how this aggregate of power has not gone unexercised. On page 5 he states:
During the drafting of the Trade Practices Act, this power was seemingly used to great effect. In February, 1964, 4 of the largest producers’ associations made representations to the Government suggesting amendments to mitigate the rigour of the proposed statute. Fully half of these requests were adopted, notably the test of the public interest, which is the very heart of the statutory scheme. Instead of the comparatively restricted inquiry into the public interest which was originally proposed, the statute adopted a wide-ranging formula whose references to the interests of investors, producers, exporters and the like, repeat the wording of the associations’ request almost verbatim.
His view was that if the public interest were to be properly protected, section SO of the Act needed to be much more clearly and positively defined. As it stands it is vague, loose and constitutes one of the major loopholes in the legislation. Legislative guidelines are needed specifically to say what the ‘public interest’ is and to lay down some order of priority.
As it stands, a whole series of interests can compete with one another. The whole of the law depends on the ethos that competition is the best thing. As the former Attorney-General, Mr Hughes, said in Tasmania on 10th October 1970:
The Act is founded upon the proposition thaI competition in business is, generally speaking, desirable for economic and social reasons . . . while competition can be uncomfortable for those affected by it, its pressure tends to restrain costs and prices and constitute a continuing inducement to businesses to improve their efficiency.
A criterion of the public interest should be what gives the lowest ->rice and best quality to the consumer. Going back to Dr Walker’s comments, it hardly seems that this criterion was applied in 1964. It was a case of what is best for the Government’s big business supporters. There is nothing in this legislation to indicate any change of approach.
In the case of Australia Industries Preservation Act 1906, the Act foundered on the question of public interest, with the High Court and the Privy Council deciding in part in the Coal Vend case on lack of evidence of intent to cause public detriment within the meaning of the Act. Mr Hughes said in the same speech that I referred to earlier that perhaps the Industries Preservation Act was too ambitious in its reach to be successful. I wonder how ambitious the strengthened Act will turn out to be in this respect.
In the Bill now before us the definition of public interest is still so wide that one must suspect the Government of ensuring the provision of a glaring loophole for those wishing to frustrate the spirit of the Act. On the question of public interest it will be conceded by all that inflation is now of major public interest. After the steep rise in the cost of living index revealed in the September quarter last month, the Prime Minister (Mr McMahon) said on 20th October:
We have been doing everything in our power to restrain the underlying forces which have caused these price movements.
It is nonsense to say this when your Attorney-General has the opportunity of a life-time before him to draft an Act which will go right to the root cause of inflation and rising prices - these thousands of restrictive agreements and practices which are being used to milk dry the unfortunate consumer. The elephant labours and what comes forth? This Bill, equipped with as many teeth as a new born baby. With the country in the grip of inflation the Government lays all the blame on wage increases, then induces business pessimism and rocketing unemployment as a solution to the erosion of the value of our currency.
The Government, instead of trying to create industrial confrontations for political purposes, could make a real and valuable attack on inflation by introducing an effective trade practices law, a law to end the pervasive and pernicious end results of mergers and monopolies, a law to end board room decision on prices. As I said in the Senate on 7th September, after the historic High Court decision, the Court held that an enactment in the form of the Industries Preservation Act would have been and was within the scope of the Constitution. When the original Trade Practices Bill was before the Senate in December 1965 the Opposition contended that the Industries Preservation Act ought not to have been repealed because it was just starting to become effective, and a simple type of enactment such as this was required.
Perhaps we can now hope that when the strengthened Act is introduced, it will be along the lines of the Preservation Act, making the various injurious restrictive practices unlawful, perhaps with the exception that only the Trade Practices Commissioner could give approval for certain practices where their social and economic value to the whole community can be demonstrated without doubt. I suggest that such approval would be given only on the ground of public interest or in defined circumstances if it were thought that the grounds of public interest should be specified.
For instance, I doubt whether the action last June by Broken Hill Pty Co. Ltd in increasing the price of steel by 8 per cent in reply to wage rises of 6 per cent could be shown to be in the public interest. In his last report, Mr Bannerman implicitly condemns the Act because it did not give him the power to act against BHP in this matter of great national interest. He said it was suggested that he should invoke section 37 of the Act which declares a practice to be monopolisation if a company takes advantage of its dominant position to impose prices or other terms or conditions than it otherwise would be unable to impose. Mr Bannerman, explaining why he did not act under section 37, stated:
The Act seems to me to intend price to be left quite broadly to the judgment of a supplier notwithstanding its dominance, provided price does not become a matter of exploitation. The Act is not directed against monopoly as such, and price increases are not examinable just because they are made by a monopoly.
What greater condemnation could one ask for? How does the Prime Minister reconcile his statement which I quoted earlier with the Commissioner’s saying that the Act does not give him power to act against monopolies which take secret boardroom decisions to affect the whole economy, decisions which, as this one did, lifted inflation to a new plateau? This is the clue to the Government’s true attitudes. It does not want to police the last economic frontier of Australia. This matter stands in contrast to the recent amendments to the Act dealing with resale price maintenance. But on this important matter, the Government acted only under pressure from the industrial and political sections of the Labor movement which brought to public attention the way in which they were being fleeced by orderly marketing agreements, ft is doubtful whether pressure even of this magnitude could force the Government to act in relation to mergers.
There is nothing in this new legislation which will cope with mergers. We have all seen and felt the effects of mergers and takeovers. We are all familiar with our communications media, where 4 monopoly concerns control nearly all Press, radio and television in this country. We are seeing our mineral resources being subjected to overseas ownership and control through takeovers. We remember how the former Prime Minister acted to stop foreign takeover of one of our major life assurance companies, and there is the current outcry about takeovers affecting the ownership of our very land. The point about the lack of legislative restriction on mergers as in this Act is this: If the Act says you cannot make agreements to hold up prices or control a market, then it is easy to achieve the same result by a merger or a takeover. This was one of the causes of the big increase in mergers in Britain after its antimonopolies laws were introduced, lt is another loophole. This Act should contain precise guidelines to state what mergers and takeovers are allowed in the public interest.
Professor Wheelright, Associate Professor of Economics at Sydney University - one of Australia’s authorities in this field - has estimated that there now are 2 takeovers a week, on average, in this country. The former Minister for Trade and Industry, then Mr McEwen, said that in 1969 at least 15 Australian owned companies, with assets worth $100m, had disappeared from the Australian stock exchange lists through takeover. Professor Wheelright says in an article in the September issue of the ‘Australian Quarterly’, that these takeovers were mainly large ones. His estimate is that over recent years foreign takeovers have averaged one every 3 weeks. Often, he says, these are in an unrelated field, the latest being the buying out of old-established vineyards by a large foreign owned paper making company, a tobacco company and a food processing company.
There are many practices which should be prohibited outright rather than merely requiring details to be placed on the secret Register of Examinable Agreements and then waiting for the Commissioner to check up on them. They should be outlawed in the same way as resale price maintenance was banned. These practices include collusive tendering, which embraces horizontal agreements; blacklisting or boycotting; tying of contracts, such as export franchises which stipulate that a company can export only to certain countries so as to preserve a market serviced profitably by overseas sections of a multi-national corporation; and interlocking directorates which are outlawed in the United States legislation. Interlocking directorates simply offer another way in which businessmen can collude to get around the provisions of the Act. There are many other vital changes, which are needed to make the Act even reasonably effective. One such change would be to ensure wide and continuing publicity for the Register of Examinable Agreements. This means going further than merely dropping the secrecy provisions. Of course, the Register should not be secret, except for such action where this is necessary in the public interest.
In his 1970 report, Mr Bannerman said that secrecy could sometimes give the parties an opportunity to hide illegal practices. We need a body such as the British Monopolies Commission or the United States Federal Trade Commission which has open hearings and continually publicises and analyses the whole structure of business so that gradually the broad pattern of company structures becomes clear to the public. It is not enough that the companies and their agreements be recorded and available for public scrutiny. It would be extremely difficult for anybody not an expert to understand properly the relationships existing amongst a great many companies.
Also, I suggest that shipping conference matters ought to be dealt with in a far more substantial way. But I would like to deal with this aspect of the matter when we come to consider the Bill in the Committee stage. On this matter, Mr Connor, my colleague in the other place, has Observed that the portion of the old Trade Practices Act of undoubted constitutional validity - perhaps 1 should not say ‘of undoubted constitutional validity’ in view of the remarks of one of the learned judges of the High Court; I might observe that they were of generally undoubted constitutional validity - related to overseas shipping conferences and their agreements with Australian exporters. Mr Connor pointed out that this wholly effective machinery has been deliberately ignored by a Government embarrassed by participation in the overseas container consortium. He added that Australian primary producers and manufacturers would be forced to pay the highest freight rates based on a guarantee of profitability to the least efficient shipping line in the over-tonnage shipping consortium. Wool growers would pay the highest freight rates at a period of lowest prices for their product. These shipping conferences were outlawed by the Industries Preservation Act and action should be taken against them under these similar provisions. These conferences are among the worst cartels with effects reaching right across our economy.
This Act is defective in other ways. The almost impossible job of Mr Bannerman and his staff would be greatly assisted by reversing the onus of proof so that a company must prove that an agreement was in the public interest, not leave it up to the Commissioner to get around to in the course of some years. This could be done as is done in relation to resale price maintenance, where parties bear the onus of proof that an agreement is in the public interest. With over 13,000 registered agreements on the Register a reversal of the onus of proof is the best practical way to equip the Act with some teeth. While on the question of the Commissioner’s difficult task, it is clear that the present Commission is far too restricted for the massive task ahead of it. Mr Bannerman needs an Australian equivalent of the US Federal Trade Commission, adapted in size and scope to Australian conditions. Such an agency could undertake detailed studies of the whole complex of restrictive practices in this country. Mr Bannerman needs an enormous increase in staff and a much larger budget than the $599,000 expended in the last financial year.
Under the present system it could take generations to investigate the whole structure of restrictive practices. We should emulate what America - the home of private enterprise - does to regulate trade and commerce. A larger staff would also greatly magnify the power of disclosure by the agency, an effective weapon against these practices. If the Commission could be expanded greatly it could eventually provide detailed information about the whole economy; information which could be used by such bodies as the Commonwealth Conciliation and Arbitration Commission and the Tariff Board. I believe such a detailed analysis would expose gross inefficiency. It would indicate that a coordinated economic system would operate much more effectively in the community interest.
If the Government really wants to use the High Court decision to introduce legislation effectively to bar restrictive practices - to practise what it preaches by laying the groundwork for a free economy spurred by true competition - then the Attorney-General should study the legislation now before the Canadian House of Commons. The Competition Act, which had its first reading on 29th June this year, is a document which would come as a revelation to the unprotected consumers of this country. It is an Act with immensely powerful provisions and penalties to match. For instance, the penalties range from $2,000 and/or 1 year’s gaol to a fine of $2m and/or imprisonment for 5 years. There are also penalties such as 2 years gaol and/or Sim fine and 1 year’s gaol and/or SI 0,000 fine. These are penalties which the Canadian Government thinks would provide a real deterrent.
The Canadian legislation provides that anybody may apply to the Registrar of the Competitive Practices Tribunal for a copy of any entry in the register, or any rule or order made by the Registrar. A great many practices are prohibited outright. They include identical tenders, restrictive covenants, monopolisation, price maintenance, suggested retail prices, misleading advertising, pyramid selling, referral selling, bargain price selling, and what is known in Canada as ‘bait and switch selling’ - a practice which seems to be becoming common amongst many of Australia’s biggest retailers.
Under the legislation all mergers where assets or gross annual revenue over S5m are involved must be registered with the Tribunal. International mergers must be registered where control is acquired over part or whole of any business in Canada. The Tribunal has power to prohibit or to dissolve mergers, local or international; lt requires that interlocking directorships be registered, and has the power to prohibit them where the Tribunal is satisfied such an arrangement would have the effect of, or is likely to have the effect of. significantly lessening competition. It is interesting to note that the Canadian legislation provides that any 6 Canadian residents over 18 years of age may request an inquiry by the Commissioner of Competitive Practices. In Australia, Mr Bannerman stated in his 1970 report:
It is rare for the Commissioner to have to consider proceedings that could in any real sense be regarded as proceedings brought on behalf of a complainant.
The Canadian legislation stands beside the Australian Act like a tiger beside a kitten, and the comparison would extend to their relative abilities to deal with adversaries. It is abysmally clear that the Government does not intend to give this country the legislation we need to meet one of our great national problems - business practices which adversely affect everybody in the community. The High Court has cleared the way and the Government can now elect to act in accordance with its expressed principle of free competition, or it can stand by as in the past and allow our community to suffer the unhindered forces of commercial iniquity. This Act as it now stands is merely a token effort, a flimsy facade of government action behind which the commercial ethos of profit at any price will continue unchallenged.
This legislation is so defective and unwieldy that it is almost useless. The
Opposition will support this Bill, with amendments, only because we will not give the Government any chance to say that we would not co-operate even in this tiny gesture. The Government is concerned to the point of hysteria about the need to peg wage rises, yet it evinces no similar anxiety about soaring prices causing inflation. If the Government is sincere about curbing inflation it should introduce an effective Act which would be a watchdog against all the practices which lead to unjustified prices. Such legislation would be the most valuable single action the Government could take now, and we challenge the Government to do so.
The invalidated Act, even before its invalidation, was a hopeless failure. This Act repeats the same methods and will be equally useless. I doubt that the foreshadowed legislation will be any better. There will be no effective laws against restrictive practices until there is a change of government. The- Bill deserves no support, but to give no excuse to the Government we will not oppose it.
– I support the Bill, not because I think it is the answer lo present difficulties but because we need to have legislation to carry on until the introduction of legislation, promised by the Attorney-General (Senator Greenwood), which will go into far more detail and will be the result, I hope, of consultation with the people concerned. Obviously the High Court’s recent decision invalidated the Trade Practices Act and legislation of this type is necessary to enable the Commissioner of Trade Practices to carry on. It is also necessary as a sign to industry representatives that they need to watch their procedures if no further controls are to be implemented. The Commissioner has been able to deal with some cases without going to the Trade Practices Tribunal. By talking to the people concerned he has been able to persuade them not to proceed with proposed agreements. This is a good factor and I hope that that success will continue. That would not be possible without the introduction of this legislation as the Commissioner would be left without effective persuasive powers to handle industry.
I am not happy about some aspects of the Bill. To begin with, I am sorry to see that the word ‘restrictive’ reappears in the title. It was taken out because it was regarded as being provocative to industry. I believe that it has reappeared so that this legislation may be easily distinguished from the Acts which have become invalid following the High Court’s recent decision. I hope that in the future something will be done so that it will not appear that industry needs to be restricted.
I believe that the industries of this country have done a remarkable job. I did not hear the name of the person whom Senator Murphy was quoting but I was sorry to hear him quote a statement to the effect that industrial practices in Australia are noi good. He went on to refer to monopolies. This old bogy of monopolies has been raised before by the Australian Labor Party. There are very few, if any, real monopolies in Australia and I hope to goodness it will be recognised that when there are takeovers and industries become bigger this is all to the good. We need expansion. We need mass production to keep down costs so that we may be enabled to trade with overseas countries. Therefore takeovers in that sense are not a bad thing, so long as there is competition. As far as I know all big industries are competitive in this country and there are no real monopolies.
– That is a startling statement, in view of evidence to the contrary.
– 1 said ‘as far as I know’ I am not in a position to go into it in great detail, but some industries which have been called monopolies are not in fact monopolies. Competition either from overseas or from within Ausoralia has kept prices at a reasonable level. I frankly dislike the situation in which prices are controlled, as has happened in some States. The result is that prices rise to the controlled figure. Competition, as far as I can see, is much more likely to keep prices down than are control measures, which result in prices rising to the controlled figure.
Some provisions in the Bill are disturbing to industrialists. I refer to the secrecy provisions contained in clause 84. Under the provisions of this clause, the Commissioner and his staff are to keep information secret. Yet. under the Restrictive Trade Practices Act, the Commissioner is obliged to furnish a report. In his recent report, the Commissioner mentions 2 cases and gives some details of them. It seems that this could be a way in which the Commissioner does furnish information which this Bill says should be kept secret.
On the other hand, no protection is given to industry when it has to provide documents or information to the Tribunal. Clause 84(2.) provides:
Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may -
direct that a hearing or part of a hearing shall take place in private . . .
But this is too late. Once evidence has been furnished by a person or a company, they have no assurance that it will be secret. Its publication could be most detrimental to their business activities. In fact, I understand that the Tasmanian brewers pulled out of an appeal to the Tribunal for the very reason that they believed that the publication of the information that they supplied would be detrimental to them. So, they did not go on with their proposed agreement. Certainly in the United Kingdom an assurance is given to an industrialist that any information that he provides will be kept secret if he so requests. This, I do think, is a provision which should be introduced in this country so that this assurance can be given to industrialists when they do come forward and appear before the Tribunal.
Apart from those remarks, I repeat that I believe that we do need some Act to enable the Commissioner to carry on his duties. Certainly a watching brief needs to be held to see that no malpractice is performed. But 1 do not think anything of a serious nature is likely to occur. 1 agree that the Government must hold this power and for that reason I support the Bill. It fills the gaps. It returns the power of the legislation virtually to where it was before but it establishes that the Tribunal can use its power.
I would like to see something done to assist the Commissioner to review the agreements that are before him. I understand that he has 13,000 in front of him. A great deal of time and expense are involved in processing them, and industry is held up. This function ought to be able to be performed more effectively. When agreements are registered they should be considered more quickly. It seems too that appeals and presentations are extremely costly to industry. We are trying all the time to keep our prices at a level at which we can engage in trade overseas. A great deal of frustration and expense result from the requirement to go through the various processes necessary to justify agreements to the Commissioner.
With these few suggestions which I hope will be noted by the Attorney-General, I express the hope that he will consult - I am sure that he will - with industrialists before introducing any Bill to strengthen the Act. In my experience, these people are anxious to do the best for Australia and the Australian people just as we in this Senate are. Therefore, I urge that industrialists be consulted and that no amending Bill be introduced without due time being provided for us and for the industrialists to give consideration to what is required. In the past we have been hustled into passing Bills of this type. 1, for one, have taken a personal interest in the operations of the Trade Practices Act. My interests now extend to this Bill. It is too difficult-
– Does the honourable senator think that big business always does the right thing?
– I think that, on the whole, it endeavours to. I said that I think that big business is endeavouring to do the best for Australia and the Australian people. People outside the industry do not always agree that what is done is the best that can be done. This is why consultation is important. I do not think that industry in general in Australia is out to fleece people or to carry out bad practices.
– What about board room democracy? Does not the honourable senator think that a board considers its own profits and not necessarily the community as a whole, and that is the reason why this Government has to introduce this legislation?
– I agree that this legislation is necessary. I have said that. A control, but not a hampering control, is required. But the control should not be one which adds a great deal of cost to an industry in order to produce what is required by the Government. With those remarks, 1 support the Bill.
– This Bill, as stated by the AttorneyGeneral (Senator Greenwood) and as has been adverted to by other honourable senators, is merely a holding measure made necessary by the application of the High Court to the previous Act in which the High Court discovered constitutional informalities which make the passage of this Bill necessary. It is significant thai this is perhaps the first statute which has been expressly related to corporation power, more particularly in the light of its new interpretation or re-interpretation by the High Court. For that reason, it is almost an historic measure. One does not know in the future how far the application of this re-interpretation, this relook or even this first time look at this power, might go or ultimately what the repercussions will be for Australia.
Another significant feature of this Bill is that, according to the Attorney, it does not purport to change the essential character or the essential terms of the statute which it replaces to rectify the unconstitutional provisions or the provisions which may be challengeable in the absence of reenactment of the legislation. This is significant because, first of ail, the previous legislation did not operate for a great deal of time. It has been under legal challenge. Administratively, as the Leader of the Opposition (Senator Murphy) has said, there has been a great backlog of registrations which therefore have prevented an assessment of the application of the Act in its operative period. So, whether these provisions in their present form are the best provisions, and are operable provisions in the administrative and effective commercial sense, cannot altogether be estimated and assessed. I think that it is regrettable, therefore, that a situation has arisen in which we are required to re-enact legislation when it has not been deemed proper or fit, in the absence of such an ability to assess the operations of the Act which is being repealed or replaced, to determine whether the provisions of that Act should be altered or strengthened.
However, the Government has intimated through the Minister in his second reading speech that while this Act does not extend or strengthen the provisions of the replaced statute, the Government has the matter under close attention. What may be the meaning of that rather indefinite term. I do not know. Actually, unless the administrative structure is strengthened so that the provisions of the Act will be able to flow through and the adequacy of its operation in the community can be assessed over a reasonably short period, it is improbable that the Government will have before it the information necessary to enable it to make an assessment on which the necessity for strengthening or widening the operation of the legislation can be determined. Therefore, I appeal to the Government as far as possible and as soon as possible to try to increase and improve the administrative structure which supports the legislation so that, at an early date, we can get the legislation operating to the fullest and the most practical effect.
I do think that the Bill is most specific and interesting. I refer first to Part IV - Examinable Agreements and Practices’. Clause 35 states: (1.) An Agreement is an examinable agreement for the purposes of this Act if. whether as originally made or by reason of a subsequent variation, it is an, agreement the parties to which are or include two or more persons, at least one of which is a corporation, carrying on businesses that are competitive with each other and each of which is a business of the supply of goods or services and if it is an agreement under which a restriction of any of the kinds referred to in the next succeeding subsection is accepted by a corporation, being one of those persons, in relation to any such business, whether or not the restriction is accepted by another of those persons.
This clause is in most specific terms so that there shall be as little doubt constitutionally as is possible in the way in which the statute is framed. Because of the sensitivity of the legislation and because of the challenge it poses to certain sections of the community, it must be given immunity from successful challenge, so far as it is humanly possible to do so and so far as drafting ingenuity can provide. We hope that this is a Bill which will withstand such a challenge. However, it is only a holding measure. We hope that the Government, as quickly as possible and as far as possible within the administrative limits which are now available, will examine the operations of the principles of this type of legislation and their effect within the economy.
Undoubtedly this type of legislation is necessary. In the type of economic society in which we now live there is a constant struggle, a constant battle, against the ingenuity of commercial interests to operate within the law to their own commercial advantage. They may regard this not as a matter of exploitation of the community but as an achievement owed to the shareholders of corporations or to those who own the operating interests. Sometimes practices can be developed within the law which, while of advantage to those people, can in the ultimate have a very adverse effect and influence on the whole life of the community. That is the constant battle which is operating between those who, in the public area, have a responsibility for the stability and protection of society and those who, in their field, feel they have a responsibility to persons who own and operate the corporations which provide certain goods and services. It is a constant battle, as I say, within the law. I suppose that legitimate advantages are taken of any loopholes in the law and it is the province, and responsibility of government sometimes acting desperately, to plug the holes and close the gaps. This legislation is designed to do that. It replaces legislation in which a flaw was discovered. That flaw now apparently is being removed by this Bill.
We must understand that this type of legislation is now inbuilt into the disciplined economy which we have come to accept and which all sections of the community now project as being the type of economy desirable. In that regard it is necessary to provide some element of social justice. We expect that over the years this legislation, following examination of its operation, will be strengthened and extended and that it will have to meet challenges from time to time. We would hope that when the substantive Bill is introduced to replace this temporary provision the Government will take the fullest advantage of the information then available to make that legislation as effective and as embracing as is possible. In the meantime we welcome this Bill. We regret the necessity for it. We regret that its predecessor was found vulnerable to constitutional legal challenge. However, the Government is to be commended for bringing down this temporary replacing Bill. We hope that in due course, within a not unduly long time, it will be replaced with a Bill which, with the experience of the Government, the Trade Practices Tribunal and the Commissioner of Trade Practices, will be even more effective in achieving the purpose for which this type of legislation is designed. The Democratic Labor Party supports the Bill.
– I support this Trade Practices Bill and I hope it will not be too long before a permanent Bill is introduced as a result of the experience gained with the operation of this legislation. This Bill re-enacts parts of various Acts which are to be repealed by it. In fact the Bill repeals all existing trade practices legislation. This is set out in the early parts of the Bill. As a result of the concrete pipes case the judges of the High Court now say that the decision given in 1909 in respect of Commonwealth powers over trade and industry was wrong in several points. That decision being reversed, it is now believed that the Commonwealth has a far greater control over some of our trade practices than was envisaged in the period from 1909 to the time of the concrete pipes case.
This Bill is a holding measure purely, as was pointed out by several earlier speakers. It has a limited basis and I understand that it covers no new ground, lt rests mainly on the finance and corporation power given to the Commonwealth in the Constitution. It is interesting to note that when the Trade Practices Act was in force, until it was declared invalid quite a few different facets of trade were examined. I want to mention 2 or 3 of the more important cases which received publicity. I mention first the frozen vegetables ease on which the Trade Practices Tribunal made a decision. Four or five other cases that were dealt with by the Tribunal are not now subject to any agreement as a result of the Act being declared invalid. These cases dealt with pharmaceutical medicines, hardboard containers, electric lamps, electric cables and ceramic wall tiles. Although only some of these agreements received publicity I am informed that about 13,000 agreements were registered during the existence of the Act. That is quite a substantial number and the agreements must cover a wide range and variety of subjects. These agreements must have had some effect on our trade practices and our trading generally during the time they were in force. I am informed also that the power over shipping and the power over retail price maintenance are not in question as a result of the High Court decision.
However, I would like to draw attention to a couple of other points to which quite a few firms in Australia have what is known as a built in freight arrangement by means of which they sell their goods at a standard price throughout Australia. I believe that firms that are prepared to do this should receive better or easier treatment from the Trade Practices Tribunal than those which charge freight. Maintenance of standard prices throughout Australia is one of the greatest factors aiding decentralisation, lt is the greatest help to people outside metropolitan areas that could be envisaged. Although this principle is not written into this Bill I suggest that those firms charging standard prices throughout Australia should have a certain measure of priority in regard to treatment under this legislation.
I want to mention one other facet of the retail price maintenance provisions. I hope those provisions will not be used to enable big firms progressively to eliminate small businesses in small towns. The provisions of the Bill are good but they could be used by a big firm to the detriment of a small businessman. A large firm could go into a particular town and cut prices until it broke the small storekeepers or small businessmen.
I note that the Opposition is not opposing the Bill. It is a holding measure and it should be passed quickly by the Senate. I draw the attention of the Senate (o one other factor that sometimes is forgotten when reference is made to big companies and combines. If we look at many of these big, wealthy companies - the big, bacl wolves in some of these cases - we find that many have a large number of small shareholders who have invested their life savings in order to make provision for their old age and thereby not be a burden on the State. They are just as entitled to a dividend on their investment as are other investors. 1 think this factor should be continually borne in mind. I support the Bill and commend it to the Senate.
– The reaction of the Government to the decision of the High Court in the concrete pipes case has to be looked at in my submission against the background of the main problem confronting this country at the present time. Of course by common agreement that is the problem of galloping prices. The Government - it is not alone in this matter among governments in the world today - has not managed to come up with any sort of an answer to the problem. The Opposition does not suggest that between 7th September when the High Court gave its judgment in the concrete pipes case and today that the Government should have been able to produce a satisfactory Bill - to use the words of the Attorney-General (Senator Greenwood) - extending and strengthening the existing legislation. We freely concede that it is a complex task to produce before Parliament a Bill which would meet what this Restrictive Trade Practices Bill is allegedly claimed to meet - the existence of practices in the business community which are detrimental to the building of competition and which, by common consent, have a very adverse effect on prices.
I submit for the consideration of the Senate that the decision of the High Court should not have taken the Government by surprise. It is not without an array of distinguished lawyers in its ranks. I think it would be agreed among them that the decision of the High Court was expected by lawyers throughout the community who had had anything to do with constitutional problems over the years. It was common talk among lawyers that the Huddart Parker case was ripe for demolition. We must recall that the Government launched the concrete pipes case in the High Court about a year ago. It is interesting to examine now in retrospect a speech which was given by the then Attorney-General, Mr Hughes, in Tasmania on 10th October 1970 when he pointed to grave shortcomings in the Trade Practices Act which was then the subject of the litigation about which we are talking. The then AttorneyGeneral pointed out:
The Act is founded upon the proposition that competition in business affairs is, generally speaking, desirable for economic and social reasons; it is also founded upon a recognition of the fact that businessmen, if left to their own devices, have a propensity to make arrangements restrictive of competition and conducive to their own convenience ar.d comfort rather than to the interests of the consuming public. While competition can be uncomfortable for those affected by it, its pressures lend to restrict costs and prices and constitute a continuing inducement to businesses to improve their efficiency.
Mr Hughes went on to examine at some length the shortcomings of an Act which he had had to administer during the 3 years of its life. It cannot be said that the Government was nol apprised as long ago, at least, as a year that this Act required drastic strengthening if it were to be used as an implement against the main evil of the day - constantly rising prices. Instead of giving attention to the amendment of the Act the Government has concentrated all its fire in answering the public’s indignation about constantly rising prices by blaming the demands of the unions for ever-increasing rises. This has been the principal target of the Government’s propaganda. The suggestion which has gone out to the world has been that the constant increase in prices and the cost of living is something which has to be laid entirely or at least almost entirely at the door of the unions. The suggestion has been put to the public that every time there is an increase of, for example, $6 a week in workers’ wages that cost goes immediately and directly into price rises. Of course this is a naive economic over-simplification which has recently been exposed by, among others. Professor Nevile of the University of New South Wales who has pointed out in a recent article:
There is certainly nol the one-for-one relationship implied by statements made by the Employers’ Federation and some politicians who suggest that once the rate of growth of productivity is exceeded, a 1 per cent rise in award wage rates will cause a 1 per cent rise in prices leaving real income1; unchanged.
If award rates increase by 1 per cent, this alone will result in a price increase of about 0.3 per cent.
Over the range of changes in wage rales experienced in Australia in recent years … if award rates increase by 2 per cent prices will rise by about 0.6 per cent, if award wages increase by 3 per cent prices will rise by about 0.9 per cent, and so on.
Nonetheless 1 think it is commonly agreed that the persistent propaganda which comes from the Government is that this situation is at the root of the problems of inflation and that strong measures to curb the constant demands of the unions for wage rises which will merely enable them to keep pace with the price rises will go a long way towards answering the problem of inflation. We submit that the Government during the time that it has been making this noise has had a real part of the answer in its hands in coming to grips with this inadequate Act with which we are dealing today. If we read the statement by the Attorney-General closely this amendment to the Act is merely a tinkering with the problem. As I said at the outset, we agree that it has not been possible in the short time since the High Court gave its decision for the Government to come up with a properly formulated amendment of the Act. But we submit that if the Government had been sincere about this problem during this period of inflation it would have been working seriously and it would have advanced a long way with the preparation of the definitive amendment to this Act. This definitive amendment is necessary if the onslaught of price rises is to be attacked quickly and expeditiously. The Attorney-General in his statement admits: . . on 17th August the Prime Minister (Mr McMahon) informed the Parliament that the Government was reviewing the Trade Practices Act in order to strengthen it and to encourage much more vigorous competition.
Of course this was before the High Court gave its decision. In other words the Attorney-General admits that no matter what became of the case before the High Court the Government was seized of the necessity of putting teeth into this toothless Act. The Attorney-General admitted an interdepartmental committee was considering the matter. In his second reading speech the Attorney-General stated:
I take the opportunity now to inform honourable senators that the Government has in the last few days received a report from that committee. The report covers a number of important and complex matters which deserve close consideration. The Government is proceeding to give these matters full and proper consideration.
Those words - giving recommendations of committees full and proper consideration - have come to be words which fill this side of the House with terror. They have come to be accepted by us as a formula for indefinite and indefensible delays in improving legislation not only in this sphere but also in other spheres. One need only recall a little matter which was debated in this chamber the other day concerning the necessity for the implementation of legislation which, though perhaps not quite as pressing as this legislation, is certainly very urgent - in fact, it might be considered in some ways to be more urgent. I refer to the need for Commonwealth legislation in the accident insurance field. The formula with which all urgent reminders from this side of the House are received is that the matter is receiving full and proper consideration.
We of the Opposition certainly hope that the revised trade practices legislation which we trust will be a worth while Act will receive full and proper consideration. But we submit that a large proportion of this full and proper consideration should have been given already to the proposed legislation by the Government. We do not accept that the Government should have been starting from scratch on 3rd September, which is the day on which the High Court of Australia said that the Government had power under the corporations power of the Constitution to do what it formerly believe it did not have the power to do. We believe that a government which was really responsible, which really wanted to do something about prices and which had found in the unions a ready scapegoat for all price increases, would already have been giving consideration to what should be done and would have its amendments ready now.
Surely if this Government believed, as Sir Garfield Barwick was pointing out in 1963, that trade practices legislation is one of the most potent weapons for genuine competition and for some sort of control over price rises and it wanted to do something about inflation it would not have contented itself over the last year or two with diatribes against the unions but would have amending legislation well along the way. We of the Opposition do not presume to prejudge the Government on this aspect
We are prepared to give it the benefit of the doubt. We assume that it has been seized of the importance of this matter. We assume that a draft of the new legislation is well on its way now and that when the Attorney-General talks about the report of a committee and about the anxiety of the Prime Minister to have strengthened legislation he means what he says and that we are not in for a long delay of months or years in getting a real Act. We on this side of the chamber confidently and hopefully look forward to a real trade practices measure being introduced in this Parliament in a matter of, if not weeks, a few short months.
– in reply - I thank the Senate for its prompt consideration of this matter and the individual honourable senators who have made contributions to the debate. I think 1 should thank Senator James McClelland in particular for his remarks. Whereas the Leader of the Opposition (Senator Murphy) gave me the impression that no legislation of any value on this subject could be expected from me or from this Government, Senator James McClelland at least expressed the hope that in the near future - I know he emphasised the words ‘the near future’ - there will be legislation worthy of the consideration of the Parliament. While I recognise the degree of inconsistency in those approaches, I am sure that it is the wish of the Senate that there should be legislation which will effectively enable the processes of competition to bring in their train the benefits to the consumer and to the public and the whole of the business environment which we on this side of the chamber believe they should bring.
The short reason for the legislation which is now before the Senate is the fact that the High Court of Australia in the concrete pipes case declared that the preexisting Trade Practices Act was invalid. The reasons for the High Court so declaring it to be invalid are not germane to the purposes of this legislation. It is sufficient to say that the nature of the High Court’s decision made it imperative that there be either wide ranging and comprehensive amendments to that legislation or a completely new Act. The Government decided that the effective course was to introduce a
Bill for a new Act. This Bill is in its terms not substantially different from the pre-existing Trade Practices Act. The real and essential difference is that this legislation proceeds upon the power which the High Court declared the Commonwealth Government had as a basis to sustain trade practices legislation, namely, the power to make laws with respect to trading and financial corporations formed within the limits of the Commonwealth and with respect to foreign corporations.
The Government is not in substance denying to the operation of this Bill what is appropriate for its purview. The Commissioner of Trade Practices has indicated that over 99 per cent of the significant agreements which he has before him for examination comprehend agreements or practices which have been made by corporations. Accordingly, legislation which is based upon the corporations power is effective to cover more than 99 per cent of the agreements which have been registered with the Commissioner. What has been left out of this Bill and what was purported to be included in the earlier Act were the provisions which might be brought in where they are arrangements made between individuals engaged in interstate trade and commerce or activities in the State of Tasmania - which had of course referred this head of power to the Commonwealth - which when engaged in by individuals amounted to the practices or the agreements which were controlled by this legislation. But, as I said, they represent less than 1 per cent of the significant agreements. It is believed that in due course the strengthened legislation to which the Government is committed will be able to comprehend those activities in a satisfactory way.
A third aspect of this new legislation to which I think some reference should be made is that it contains transitional provisions which are designed to render effective proceedings which were taken under the old Act and which reached finality and also to ensure that proceedings in regard to which quite an amount of work has been done and expense incurred by those who were engaged in them were not nullified. This transitional legislation, in a variety of ways, enables these proceedings to be validated and for the Commissioner to retain documents which have been given to him under the provisions of the preexisting Act and for him to be able to proceed on the basis that, as far as possible, what he had earlier done was lawfully done.
Mention has been made of the fact that the Government has promised new and strengthened trade practices legislation. I would emphasise that the Bill currently before the Senate is a holding or interim Bill designed simply to overcome the decision given by the High Court at the beginning of September which created a vacuum insofar as trade practices legislation is concerned. As I said when I announced the Government’s intentions to the Senate on 7th September and as has also been indicated in my second reading speech, this legislation is designed to ensure that there is trade practices legislation on the statute book. Further, and I believe, greatly strengthened, legislation will be introduced after full and proper consideration has been given not only to the report of the inter-departmental committee which the Government established and which has looked at the whole question, but also to the representations of those who have something to offer in this area, to the remarks which have been made in the course of this debate and the various writings and contributions of those who believe that the Government should be taking action in a particular way. I can assure the Senate that the intention of the Government, with which I wholly identify myself, is to ensure that the benefits of competition are revealed, as far as they can be, by the environment which this legislation can create. 1 refer the Senate to what Sir Garfield Barwick said when he issued the statement which was made in the House of Representatives on 6th December 1962. In stating the philosophy behind the legislation and the purpose which it was to achieve, that which Mr Snedden reiterated when he introduced the legislation in 1965 and which I again at this time reiterate as objectives which it is desirable to have achieved, he said:
The Government, having been furnished with the results of my efforts in this connection, has concluded, and I think few, if any, will deny, that there are practices current in the community which by reason of their restrictive nature are harmful to the public interest - that interest being in the maintenance of free enterprise under which citizens are at liberty to participate in the production and distribution of the nation’s wealth, thus ensuring competitive conditions which tend to initiative, resourcefulness, productive efficiency, high output and fair and reasonable prices to the consumer.
If we can have those conditions created, then I believe that not only will there be the broad economic and social benefits which competition, under control, can produce but also we shall have a wide range of goods and services available to consumers at fair and reasonable prices. It is an objective to which the parties which comprise this Government are committed. As far as legislation can ensure that those objectives are realised, then that legislation will be forthcoming.
May I refer also to what was said by the Commissioner of Trade Practices in his third annual report. He indicated that the benefits which flow from trade practices legislation, the advantages of competition, are not to be achieved simply by the passing of laws. An environment has to be created. There has to be a willingness on the part of those who are engaged in the productive process and the distributive process to recognise that there are benefits in competition. We in Australia have been for many years somewhat immune to the virtues of competition because there had developed in the post-depression years and in wartime an attitude that those engaged in business should be protected and that they had a right just because they were in existence to continue in existence irrespective of what might be their social utility. The Commissioner said that price fixing agreements were amongst the most common of the agreements which had been registered. His words were as follows:
The depression of the 1930’s, and wartime price control led to many of the price-fixing agreements still current and to the pre-disposition of many businessmen to agree prices with their competitors. Common criticisms of price control by governments are that it constitutes undue interference with business freedom, and tends to produce uniformity and to damp down competition. These may be valid criticisms, if the comparison is between government price control and competition. Often, however, it is not competition, but industry agreement on prices, that has replaced government price control, which was at least known to the public. On the other hand, there are certainly goods, like many food items, that were the subject of government price control and are now the subject of price competition.
Several paragraphs later in the same report he said:
It is of course possible that industries that give up price-fixing agreements do not move into active price competition, or at least do not move into it at once. Price competition can be inhibited by inertia in any industry unused to competition, but the removal of actual restrictions on competition at least makes competition possible, and one would expect it gradually to come. This has been the overseas pattern.
I do not believe that we can assume that trade practices legislation or any of the devices which are designed to strike down anti-competition agreements will produce overnight a situation in which all the benefits of competition in terms of initiative, resourcefulness, high output, productive efficiency and fair and reasonable prices to the consumer are concerned, lt must be a process which grows, and possibly the recognition of this is as important as the legislation itself.
I know there has been criticism - I think Senator Murphy expressed it - that the legislation which has just been declared invalid and the current Bill which is designed to perpetuate for the time being the provisions of the old Act are ineffective to achieve their purpose, that really one cannot point to very much in the way of achievement over the years of its operation. But what has been the position since it became enacted in late 1967 or early 1968. We have had, of course, 2 constitutional challenges, and while those challenges were proceeding the work of the Commissioner was inhibited. First of all, there was the Tasmanian breweries case which for approximately 12 months or more meant that the whole purview of the tribunal and much of the work of the Commissioner was under challenge. Then commencing in early 1969 there was the prosecution which the Commissioner launched in the Industrial Court in the concrete pipes case and that led, of course, to an appeal by the Commonwealth against the decision of the Court. That appeal was heard in the High Court in February and March of this year. It was not until the beginning of September this year that the High Court gave its decision. So for almost half the time that this legislation has been in force there have been impending challenges.
On the other hand, there are many benefits which ought to be recognised as having flowed from the enactment of this legislation. In the first place, we have a
Commissioner and we have a quite substantial staff which has developed a knowledge and expertise which previously did not exist in this country. These people are now equipped. Possibly they not as fully equipped as they themselves would like and possibly they are not as knowledgeable as a complete appreciation of the circumstances would warrant, but nevertheless they have the knowledge and ability to administer whatever legislation is to be brought in. That is a positive achievement that this legislation has produced.
In the second place we have a register, which of course is a secret register but which has provided a great deal of information. The fact that there are 13,000 agreements on that register is an indication of the extent of the problem. It ought to be recognised that this register is a secret register, and the secrecy provisions have been one of the factors which have induced the business community to place its trust in the Commissioner and to cooperate in a way which has facilitated much of his work. I do not say that that co-operation is such that the advantages which the Act is seeking have been realised or will be readily realisable, but the point is that there has been a degree of cooperation which has facilitated the work of the Commissioner.
In this period there has been a great deal of activity in the abandonment of agreements by some persons without any of the. statutory consultations which the Commissioner is empowered to hold. There has been an abandonment of practices after the consultations which the Act requires have taken place between the Commissioner and the persons who are parties to the agreement. Additionally, there has been one case which has been fought before the Trade Practices Tribunal in which the Commissioner was able to sustain his view that the agreement which he was challenging was detrimental to the public interest. At about the time that the High Court gave its decision there was a second case concerning pharmaceutical wholesalers which was currently before the Tribunal. It has not been able to proceed because of the High Court’s decision and because of the lack of effective substitute legislation.
It is not to be supposed that the success of the legislation is to be measured in the number of cases which go to court, but what is important is that if a sufficient number of these cases go to court, and if the Tribunal lays down its interpretation of the criteria which the Act specifies, guidelines become apparent which, simply because they have become apparent, resolve in their train hosts of agreements which are awaiting a definitive interpretation because there had been no guidelines laid down by the Tribunal. In this way 1 believe that remarkable advances have been made in a short period. Not only have these advances accentuated the problem, which we recognise, and produced the expertise in the Commissioner’s staff, which is so necessary, but also these advances have pinpointed the areas at which we are looking with a view to determining the next steps and the improvements which should be followed.
Earlier this year the Government established an interdepartmental committee to examine the operation of the trade practices legislation. For 6 or 7 months a very detailed and close examination has been made by the members of that committee of the areas of need and the problems to be resolved in the trade practices area. As I said during the course of my second reading speech, I now have before me for consideration that interdepartmental report. The first achievement of the interdepartmental committee was the recommendation for the enactment of legislation to ban resale price maintenance. That was the subject of debate in the Senate earlier this year. The banning of resale price maintenance as a section of the trade practices legislation is a very significant step forward. lt was made capable of operation in the form in which it was enacted because of the experience upon which we were able to draw in examining the enactment and the pattern of operation in the United Kingdom. think it should be recognised by those who would cynically challenge the Government’s intentions and sincerity that the Australian legislation is more drastic than is the United Kingdom legislation because the Australian legislation bans outright the practice of resale price maintenance and permits the Tribunal to grant exemptions, but only when the case has been proved to the satisfaction of that Tribunal. Until the case has been proved there is no interim exemption and the persons who seek the exemption are bound, as other people are bound, by the provisions of the legislation. This is not the pattern which prevailed in the United Kingdom. To a certain extent, that points up what Senator Murphy said, namely, that if one looks at the legislation operating in other countries one can see how, in its operation in those countries, useful lessons can be drawn and the Australian legislation thereby improved.
I can assure Senator Murphy that the legislation in Canada - the Canadian Competition Bill - is being studied and that its lessons and its provisions will be noted in the work which is being done and which is to be done.
– I am not suggesting that that necessarily is the answer for Australia.
– I accept the way in which Senator Murphy puts it because when he was speaking 1 thought that one of the interesting features of the Canadian Competition Bill is that it repeals pre-existing legislation which is of the character of the Sherman anti-trust law in the United States or of the Australian Industries Preservation Act which proscribes conduct as unlawful and substitutes for it provisions which are subject to the test of whether they contravene the public interest. In the area of mergers and takeovers, to which Senator Murphy referred, the Canadian proposal is that mergers and takeovers which involve assets in excess of $5m. I think, are mergers and takeovers which are required to be registered. If they are not challenged within 12 months they stand as valid, but they are open to challenge. It is an interesting area at which we must look, but I feel that it is reflective to note that the pattern of development in Canada has been away from a complete outright proscription to a situation in which some practices are proscribed outright as unlawful, and other practices have to be assessed in the light of criteria which constitute the public interest.
The concept of the public interest should be regarded as vital in a consideration of what are restrictive trade practices and of what trade practices should be regarded as unlawful. It is all very well to say that some practices should be proscribed outright but they should not be proscribed outright as unlawful unless it is clear, on an assessment of the public interest, that there is benefit to be derived by so doing. I am not suggesting that there are not some practices in this country which should not satisfy that criteria of being contrary to the public interest. Equally there are other practices which should be regarded as being able to meet criteria which suggest that on balance they are more beneficial to the community if they are allowed to remain. What those practices are is always a difficult question.
In the frozen vegetables case the whole matter was looked at by the members of the Tribunal when they were considering whether the agreement made between the processors of frozen food, whereby they fixed prices, was or was not contrary to the public interest. I think that for those senators who are interested in the need to balance competing interests a perusal of that judgment is instructive of the type of difficulties which all these cases will produce and which have to be resolved. I quote very shortly from what was said in that judgment:
The Commissioner alleged that the primary detriment which flowed from the agreement was the erosion of competition within the industry. He further alleged against the agreement that it would tend to maintain prices at a higher level than they would be in the absence of the agreement; that the agreement purported to regulate the affairs of persons engaged in the industry other than the respondents; that it would prevent the benefits of increased efficiency being passed on to the consumer; that it would discourage efficiency and innovation; that (he agreement was of indefinite duration; and that it made processors responsible for policing the activities of their distributors. Against this, the respondents maintained that the agreement would lead to benefits which would outweigh the effects of the restrictions on competition.
These benefits were listed by their counsel in the following terms:
It was the only practical way to stop the price slide and to enable the producers to get back to a proper price level.
It gave the processors a basis and a reason for refusing to make further price reductions to retailers.
It provided for the processors the benefits of price stability.
It allowed the processors the opportunity to develop new products.
It provided a basis on which they could more rationally decide to carry forward stocks rather than to upset the market by trying to dispose of them on the market.
It prevented the processing industry becoming the field only of one or two large processors.
It will benefit the growers generally.
It will benefit the distributors.
It carried into effect the expectations of the New Zealand-Australia Free Trade Agreement arrangements.
It helped to avoid ‘social waste’.
The Trade Practices Tribunal had to weigh the arguments of obvious merit which the Commissioner raised as to why the agreement would be contrary to the best which competition would produce, against (he quite valid and potent arguments which the processors raised as to how it wouldaffect them. This is what is involved in the concept of public interest. I feel, therefore, that we should tread cautiously before we reach a sweeping conclusion that all practices should be proscribed outright, because there are cases and situations in which there are benefits to those engaged in the industry or in the particular business which is involved and situations in whichthey can show some benefit flowing to the community. It is because of this type of situation that we must give full and proper consideration to all that is urged, one way or the other, before determining what should be the course that we are to follow in the new legislation.
I can only reiterate that the Government is committed to strengthening its trade practices legislation, quite apart from having passed through the Parliament as quickly as possible this current Bill which is designed to overcome the recent High Court decision invalidating the pre-existing Act. But the matter of the new legislation must be based upon a thorough examination of overseas experience, Australian practice and what is likely to promote those conditions under which competition will flourish and the benefits of competition are most likely to accrue.
I listened with interest to the remarks which were made by the various speakers but, as 1 said earlier, I think that all that they said can be taken into account and will be taken into account in the course of the consideration which is currently being given. However, there are several points that I should mention. Senator Murphy suggested that the trade practices legislation which is embodied in this Bill is a curiously emasculated version of the Barwick proposals. I know that view is generally held, but I think it does less than justice to Sir Garfield Barwick ‘s proposals to regard the current Bill as so different from them as not really to be part and parcel of what he initially proposed. The only aspects of the legislation which was subsequently introduced which did not take account of what Sir Garfield Barwick proposed were the recommendations with regard to mergers and takeovers and for proscribing individual refusals to deal and exclusive dealings which, of course, were vertical practices.
– What about predatory pricing and monopolisation?
– He had different provisions for monopolisation and pedatory pricing, which of course are contained in this legislation. However, they are not contained in the legislation in quite the way that it might be envisaged that Sir Garfield Barwick intended.
The proposals by Sir Garfield Barwick never found legislative form. They were contained in a statement and when it came to a matter of actually legislating, whilst those concepts were embraced in the legislation they had to fit within what could reasonably be regarded as capable of prohibition. To regard them as different in their legislative form from what Sir Garfield Barwick was suggesting in his statement as to what ought to be comprehended I think is making an assumption which cannot be warranted. I think it should be mentioned also - this bears in part on what Senator James McClelland said - that we have in the community trading practices which are engaged in by businesses which, in various ways, would appear to run counter to the purposes of the trade practices legislation. The trade practices legislation is designed to cope with those practices, but equally there are practices engaged in by persons who are exempted from the legislation. I refer to agreements made by certain unions. The pattern of the trade practices legislation in the Bill before the Senate is not to affect those activities which can have as detrimental an effect upon prices in the community as can the trading practices of certain business.
– Are they not covered by the Conciliation and Arbitration Act?
– I do not think they are covered by the Conciliation and Arbitration Act. Conceivably they are covered by the Crimes Act, but they are covered in a way which I know would arouse a great deal of hostility if any action were sought to be taken under the Crimes Act. Boycotts and the preventing of trade and commerce between the States are offences under the Crimes Act. On occasions those practices have in fact been engaged in by persons who are members of registered organisations.
– Leaving aside the merits of the matter, is it not clear that what the trade unions do is really covered by special legislation?
– I do not think it is clear. (Extension of time granted.) 1 thank honourable senators for their indulgence. I regret that I am exceeding the time allowed under the Standing Orders. I assumed that I had been speaking for a short time only. I thought that I understood the Standing Orders better than that, but apparently I do not. On the last point raised by Senator Murphy, I feel that this is an area where consideration has to be given, as in those other areas to which I have been referring. I do not suggest that these matters must be included in the legislation but that to make a comprehensive assessment of the position requires some consideration.
In conclusion I would say only that consultation with industry, which was suggested by Senator Buttfield; the thorough examination which Senator Byrne has commended; the examination of predatory price cutting practices to which Senator Lawrie referred; and generally the need for speed and application, which Senator James McClelland suggested, are all matters which I accept as being worthy of consideration. I assure the Senate that they are being taken into account. I thank the Senate for its consideration of this measure and I hope that we can be as speedy with our Committee stage as we have been with this debate.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 to 33- by leave - taken together.
– I propose first to refer to clause 3. It is the intention of the Opposition to move later for the insertion of a new Part IIIA on predatory pricing and monopolisation, lt might be convenient if, instead of having a debate on this issue, the matter were left and then, depending on the fate of the amendment, we could return to correct it if it were necessary. I refer now to clause 4, which deals with the repeal of the Acts mentioned therein. Sub-clause (2.) which states:
Nothing in the last preceding sub-section revives the operation of an Act, or of a section of an Act, referred to in sub-section (2a.). . . .
If I understand the position correctly, the effect of that sub-clause is to repeal the Australian Industries Preservation Act 1906-1950 and that if we were to defeat that sub-clause the Australian Industries Preservation Act, which deals with this subject matter and which the High Court said would be valid, would remain in force. I ask the Attorney-General whether I understand that correctly. Is sub-clause (2.) of clause 4 necessary in order effectively to repeal the Australian Industries Preservation Act? In other words, if we do not agree to that provision, it may be that because the other enactment was invalidated the Australian Industries Preservation Act will remain in force.
– I think that the easiest way - and I think it is accurate - of answering Senator Murphy is to say that if clause 4 (2.) were to be deleted it would leave the position in some doubt. The purpose of clause 4 (2.) is to ensure beyond any question that the Australian Industries Preservation Act has been repealed. Of course, it was repealed by the 1965 legislation and one would suppose that it stays repealed. But if the effect of the High Court decision invalidating parts of the trade practices legislation is in some way to affect the repeal’ in 1965 so that the Australian Industries Preservation Act is restored, the purpose and effect of this subclause is quite conclusively to indicate that it is the intention of this legislation, as it was the intention of the 1965 legislation, to repeal the Australian Industries Preservation Act.
– If what the Attorney-General says is so, my feeling is that we ought to delete the clause from the Bill because the High Court has said that the Australian Industries Preservation Act is a valid Act, that it is within the scope of the constitutional power and that it is an Act that contained wise provisons that, in later times, seemed to have given some promise of protection to the public against various restrictive practices. In particular, it seems to me that it contained some very useful statements such as that contained in section 7 which states: (1.) Any person who monopolises or attempts to monopolise, or combines or conspires with any other person to monopolise, any part of the trade or commerce with other countries or among the States, is guilty of an indictable offence.
I am using a 1935 copy of the Act, but if is my understanding that that section remains in it. It then proceeds to deal with penalty, and states: (2.) Every contract made or entered into in contravention of this section shall be absolutely illegal and void. (3.) The Attorney-General may elect, instead of proceeding by indictment for an offence against this section, to institute proceedings in the High Court by way of civil action for the recovery of the pecuniary penalties for the offence; in which case the action shall be tried before a Justice of that Court without a jury.
The Act contains other very valuable provisions. It deals with unfair concessions by persons. That seems to be the kind of thing that Sir Garfield Barwick was referring to when he mentioned predatory pricing. So here we have an area which is not effectively dealt with by this legislation. Why insert what is ‘ admittedly a weak and, in relation to these matters, virtually useless clause which states that monopolies and these other matters can only be looked at and not effectively dealt with? Why destroy the prospect of having some proceedings instituted under an Act that the High Court said is all right?
– Keep it there until we get the strengthened Bill.
– Yes. What is the objection to our retaining this fine old Act? We know that whatever comes or goes with this new legislation it will be gummed up in the High Court for donkeys’ years. The companies follow this procedure. They can file all sorts of papers. There are all sorts of methods by which the same kind of delays can be used in respect of the new legislation as were used in respect of the old legislation. The Attorney-General just told us how nothing can be done because the legislation was caught up with challenges for years. Who doubts that the new legislation when it is passed will be caught up for years? Afer all this time we have this certainty which I understand was the guts of the High Court decision: Whatever else was justifiable, the Australian Industries Preservation Act was justifiable under the corporations power. That was wide enough to justify that enactment. I ask the Attorney-General whether or nol that would be a fair statement of the provision. If that is so, why are we getting rid of it? Why introduce an interim measure? Why not leave the Australian Industries Preservation Act, for what good it is, as it is?
People were wanting to use that Act at the stage when the 1965 invalid legislation was introduced. People were starting to revive proceedings under the Australian Industries Preservation Act. What is the desire to get rid of this fine old Act which the High Court has said is valid? If it can be strengthened, why do we not strengthen it? In any event, it is there and it contains what appear to be some pretty strong provisions. Why not use that, at least as a complementary part of the legislation? We know that the present Act is useless, except in regard to the resale price maintenance provision which is ons of a different character. I am leaving aside the shipping matters altogether; 1 am dealing with the broad spread of restrictive trade practices throughout the community. Why dispense with this Act? Would it not be better to delete this provision and say that, nevertheless, the Australian Industries Preservation Act shall continue in force? Is not this the course to follow if some holding legislation is desired? Why do we want to gel rid of that Act? We are faced with the fact that from 196! or 1962 the then AttorneyGeneral, Sir Garfield Barwick, wanted some legislation to deal with these practices which he thought were hurting the country, forcing up prices and introducing inefficiency in industry. He made some proposals. It is now 1971 and what have we been through? Action was delayed until 1965 when the legislation was introduced. Sir Garfield Barwick’s proposals were watered down. Then the Government sat on those for 2 or 3 years before the legislation was proclaimed and got under way. As soon as the legislation started to move the challenges commenced. It is 1971 and the High Court tells us that the Act is no good.
– It is a rearguard action.
– That is so. We know what will happen in the future. The Attorney-General has acted with the best will in the world, as it seemed that his predecessor did, but they do not seem to be able to get anywhere. The honourable senators in their wisdom ought to reflect upon the fact that the High Court has said that the Australian Industries Preservation Act is valid. It is not often that the lawyers will say something quite definite.
– I though you made the distinction earlier that not all of them said that.
– We have a fair degree of certainty, shall we say, Mr Chairman, that the Australian Industries Preservation Act is valid. It is within the constitutional power of the Commonwealth and it is directed right on this subject. It contains some very good provisions. I suggest for the consideration of the Commitee that that Act ought to be retained on the statute book and that no efforts should be made to get it off the statute book, lt encompasses the repression of monopolies, and who is to object to that? Does anyone suggest that there is anything wrong with that provision? It covers the prevention of clumping and contains provisions of a careful character which can be called in aid not only when the AttorneyGeneral is preparing legislation but also when he is introducing it into the Parliament and while it is surviving all the challenges that may come. Would it not be wise to have the Australian Industries Preservation Act as some protection to the community against the practices which are covered in it? 1 suggest that sub-clause (2) of clause 5 should be deleted from the Bill.
Then we should go further and ensure the continuance of the Australian Industries Preservation Act.
– Very shortly, I do not think the Committee should accept Senator Murphy’s view. As I said earlier, this clause has been inserted only for the purpose of greater certainty. The Australian Industries Preservation Act was repealed by the 1965 legislation. In my opinion, and the opinion of the SolicitorGeneral as revealed in the statement made on 7th September, it is quite clear that the High Court’s decision is not to be taken as invalidating every section of the trade practices legislation. Indeed, the Commonwealth Industrial Court has upheld that contention because it has said that the resale price maintenance provisions are valid.
– That was in a different Act.
– I appreciate that, and the legislation has proceeded. Of course, the establishment of the Trade Practices Tribunal was quite specifically held to be valid and, it would appear, it is expressed in language which would make the provision setting up the Tribunal independent of the other provisions. In that respect I refer the Committee to the Tasmanian breweries case. It may well be that the Commissioner has been validly appointed. It could well be that a simple repealing section of the trade practices legislation of 1965 was valid and had the effect of repealing the Australian Industries Preservation Act. In those circumstances it cannot be supposed that if Senator Murphy’s wishes were acceded to the Australian Industries Preservation Act would be restrained. We say it would not be.
Sitting suspended from 6 to 8 p.m.
– Before the sitting was suspended, I was indicating opposition to the view expressed by Senator Murphy on this clause. I had suggested that there was no warrant for supposing that, by the deletion of sub-clause (2.) of clause 4, the Australian Industries Preservation Act would be revived. Even if the view that I expressed before the suspension, that it would not have that effect, is open to doubt or is wrong, there clearly is a questionable area. I think that I have heard expressed in this Senate on numerous occasions in the past the objective that legislation, as far as possible, should be certain. It is a good thing that legislation should be so clear that people will know what their position is under that legislation. If they are entitled to rights or the ability to exercise powers, they should know what those rights and those powers are. Likewise, if they are to be subjected to obligations, they should know what those obligations are. I would suggest that Senator Murphy’s opinion, in the light of the High Court’s decision and the uncertainty which must prevail as to just how much of !he legislation the High Court is to be taken as having said has no validity at all, is undesirable in the light of those criteria.
– But, Senator, I agree with you. If we were simply deleting the clause I do not think that it would be satisfactory to leave it that way. But it would be done with a view to inserting words to the effect that the Australian Industries Preservation Act should continue. 1 am not disputing that the matter ought not to be left in doubt. I am suggesting that wc so amend that the Australian Industries Preservation Act be clearly stated to continue. That is the purpose of it.
– I think that I take the way in which Senator Murphy puts it. I did not understand him to be putting it that way when he spoke earlier. I can see that if he does seek to insert words to the effect that the Australian Industries Preservation Act is to be regarded as restored, that meets the point of objection I made. But I still feel that there are quite substantial objections 10 that course. I think that the major objection I have is that the Government has indicated clearly that it is reviewing this legislation. In the light of this current consideration, the proposal made by Senator Murphy pre-empts to a degree the Government’s position. I do not think that it is advantageous - this would be the consequence if the views expressed by Senator Murphy were carried by way of an amendment - in the light of that amendment for people to be faced with uncertainty as to whether the amended Act is to last for 3 months or 6 months and then be repealed again. This would create, 1 believe, a situation of uncertainty and one which is not warranted in the light of the Government’s clear commitment to a reconsideration of many of the principles in this Act with a view to strengthening it. I would have thought that that was a very substantial argument against the views expressed by Senator Murphy.
– I ask the AttorneyGeneral whether he is in a position to say whether he has in mind in the strengthened legislation enacting provisions, for example, with respect to monopolies and dumping, such as were to be found in the Australian Industries Preservation Act.
– I would like to assist Senator James McClelland, but I do not desire to bind myself or, more accurately, to bind the Government by giving some indication at this stage as to what may or may not be included in the strengthened legislation. The point is that no decisions have been made. I hoped that I explained, if not with persuasiveness at least with some reasons, why the Government has not made up its mind at this stage. We are giving consideration to this matter in the light of the many factors which must be taken into account. One problem with dumping is that the existing dumping legislation in this country is under the administration of the Minister for Customs and Excise (Mr Chipp). An additional factor of some weight, I think, against Senator Murphy’s proposal is that the Australian Industries Preservation Act, at least in its second part, is an Act within the purview of the Minister for Customs and Excise and not within the area which is the responsibility of the Commissioner for Trade Practices or the Attorney-General. We have legislation which permits dumping duties to be imposed. It is adequate for the purposes of our customs provisions at the present time. I cannot give any indication to Senator James McClelland as to whether there will be any such provision in the strengthened legislation, because no decision has yet been made in that area.
The CHAIRMAN (Senator Prowse)Order! Is it the wish of the Committee to take clauses 1 to 33 together?
– Might I suggest that clause 4 (2.) be dealt with separately so that we might then put the clause to determine whether it should remain in the legislation. We can deal with that separately and then I would like to make some remarks about some other parts of the Bill.
– Order! Is it the wish of the Committee that clause 4 (2.) be dealt with as suggested by Senator Murphy?
– I am not quite sure whether I understand what Senator Murphy is proposing. If his proposal is that at this point we should have a vote on whether clause 4(2.) should be considered separately from all the other provisions so that, if he desires to proceed with his amendments, those honourable senators who support him can say ‘Aye’ and those who feel that it is a matter which ought not to be considered separately because we disagree with what he is proposing can vote ‘No’, I would think that that was an adequate course with which I would agree.
– I want to separate it out.
– Order! The Committee will deal with clause 4 (2.) as suggested by Senator Murphy.
That clause 4 (2.) stand as printed.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 3
Question so resolved in the affirmative.
– Mr Chairman. 1 want to refer to certain other clauses and will deal firstly with clause 9. This refers to conditions of appointment and so forth. Perhaps the Attorney-General (Senator Greenwood) might tell us why these provisions about conditions are so wide. I also refer to clause 10, which is more to the point. Perhaps the AttorneyGeneral could explain why he has not taken the opportunity to deal with remuneration and allowances in the accustomed manner. Here is a clear opportunity to provide that a member shall be paid a remuneration and an annual allowance at the rate fixed by the Parliament. This is a pretty clear case. We should know how much a member is paid. Would it not have been simple to specify the amount in the Bill or to say that it is to be fixed by the Parliament, and that the other allowances are to be as prescribed? This matter then could be dealt with in a Salaries Bill along with the other half dozen appointments covered by it, if it is intended that the matter be dealt with in that way. I suggest to him that before we finish with this Bill this matter ought to be brought into line with what I am sure he thinks is the appropriate way to deal with these matters.
Clause 13 deals with the suspension and removal of members. There is a matter of some principle involved here as to how these high officers ought to be dealt with. Should it be that the Government in effect can suspend a person appointed to this position and that he has to go unless both Houses of Parliament take an opposite view? This does not provide very great security of tenure to people who are in the same situation as judges, for example. Judges are appointed and remain in office unless both House of Parliament say that they should go. In this Bill there seems to be a reversal of the position. The Government is saying that a man can be removed unless both Houses say no. On the surface the provision sounds the same but in fact is means that there is very little security for a person in this position if the Government is turning to the Parliament as the guarantor of the security of these persons. After all some of them are going to be in a very high office analogous to that of a federal judge because of the nature of the work they do.
If the Attorney-General cannot answer these questions now I ask him to consider these matters before the strengthened legislation is introduced. They are extremely important matters. By suggesting an alteration in respect of clause 13 I do not want to commit the Attorney-General to a position to which he might not want to be committed because it is not important enought at this stage. While I regard it as very important, it is not important for this Bill if it is to be a temporary measure only. This matter greatly affects the security of tenure of persons who are entitled to be placed in a secure and independent position. In this Bill we find a reversal of the traditional protection for such persons. I ask him whether there is any reason for this change. Perhaps he might tell us. I know that this provision was in the previous legislation and I assume he has just carried it over into this Bill. Can the Attorney-General indicate why it was in the previous legislation in that form and will he indicate that he will give some consideration to this as a matter of principle before the strengthened legislation is introduced?
– Senator Murphy has raised a number of points. I will deal firstly with the last point he raised. It concerns the provisions of clause 13 of the Bill. These provisions were contained in the earlier legislation. In effect they provide that the Governor-General may suspend a member from office on the ground of misbehaviour or physical or mental incapacity. The member to which that clause refers is, of course, a member of the Trade Practices Tribunal. It does not comprehend the presidential member who must be a judge or a person with legal qualifications.
Clause 13 goes on to indicate that the suspension is subject to the House of the Parliament, or either of the Houses of the Parliament, passing a resolution that the suspension shall not take effect. That is a decision which, if it is ever taken by the Governor-General, clearly raises for consideration in the Parliament whether that suspension should take place, and I would think that without any question the Government, which advises the Governor-General, would be required to place the reasons for that suspension before the Parliament. It would then be a matter for decision. I think that the very character of the provision is such that only in cases of obvious necessity would that course be taken. This is a provision which is not exceptional in this type of legislation. It applies to every holder of an office of a non-judicial character. In answer to Senator Murphy I can only say that I shall certainly give consideration as to whether this is the appropriate or best course to follow in relation to power to remove members of the Tribunal. I think there should be such a power vested in someone when the strengthen legislation is brought in.
– I rather thought that the word ‘member’ included a presidential member. If it does not perhaps we might be told where to find the provision dealing with presidential members. : Senator GREENWOOD- Contrary to what I have said I am assured by my advisers that ‘member’ does include a presidential member. Apparently that provision appears in clause 5 of the Bill. I had been looking at clause 7.
– Then the position is a little more serious?
– Because of the way I used the argument, I accept that the point Senator Murphy makes is so much stronger. I ask him to accept my assurance that this matter will be looked at in the light of the strengthening legislation. I shall give my consideration as to whether it is an appropriate means by which a removal should be effected. Because this is a matter which has been in the existing legislation which has prevailed for the last 5 or 6 years and because this Bill is designed to be merely holding or interim legislation to validate that which the High Court declared invalid, I urge that that is adequate reason to accept this amending provision for the period over which it will operate. I am conscious of the points which have been raised by Senator Murphy. He referred to clauses 9 and 10. I think that clause 9 is a provision in general terms concerning appointments which are to be made. According to the emoluments, obligations or rights of persons who are to be appointed to an office there may be a necessity to indicate their obligations with regard to sitting on the Tribunal or performance on the Tribunal in the light of other obligations which they may have. Therefore it is desirable that those conditions should be specified.
A clause such as clause 10 providing that a member shall be paid remuneration and an annual allowance at such rates as are fixed by the Governor-General has been objected to on most occasions on which it has come before the Senate. Clause 10 is not in that form. The provision in the clause is that the remuneration and annual allowance shall be prescribed. The clause was drafted in this form because this had been the situation for some time.
It was felt that that was desirable. Senator Murphy has raised this point. Because he has raised the matter I propose to move amendments to overcome this position and to give effect to a proposition which has commended itself to the Senate in the past. The amendments affect clauses 8, 10, 11, 13 and 24.
Clause 8 reads, in part: (I.) A person shall not be appointed as a presidential member unless he is or has been a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than five years’ standing.
Clause 10 reads: (1.) A member shall be paid remuneration and an annual allowance at such rates as are prescribed but neither rate shall be diminished during a term of office. (2.) A member shall be paid such allowances in respect of travelling expenses as arc prescribed.
Clause 1 1 reads:
If a person appointed to hold office as a member was, immediately before his appointment, an officer of the Public Service of the Commonwealth -
Clause 13 reads: (1.) The Governor-General may suspend a member from office on the ground of misbehaviour or physical or mental incapacity. (2.) The Attorney-General shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within seven sitting days of the House after the suspension. (3.) Where such a statement has been laid before a House of the Parliament, that House may, within fifteen sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member should be restored to office and, if each House so passes such a resolution, the GovernorGeneral shall terminate the suspension. (4.) If, at the expiration of fifteen sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member from office. (5.) If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit, the GovernorGeneral shall remove him from office. (6.) A member shall not be removed from office except as provided by this section.
Clause 24 reads: (1.) The Commissioner shall be paid salary at such rate, and an annual allowance at such rate, as are prescribed but the salary and allowance shall not be diminished during a term of office. (2.) The Commissioner shall be paid such allowances in respect of travelling expenses as are prescribed.
In clause 8, leave out sub-clause (1.), insert the following sub-clause. “(1.) A person shall not be appointed as a presidential member unless he is -
The purpose of these amendments is to provide that a person shall not be appointed as a presidential member unless he is a judge of a Federal court or a person who has the status of a judge of the court. Where such a judge is appointed as president he will be paid an additional remuneration of $2,000 per annum and an additional annual allowance of $500. I assure the Committee that that is the position which prevails at the present time as to the person who currently occupies the position. The amendment also provides that a member, other than a presidential member, shall be paid a remuneration at the rate of $2,600 per annum and, in addition, $35 for each day he sits as a member of the division of the Tribunal for the purpose of hearing and determining proceedings. Again, that position prevails at the present time. The other amendments are designed to ensure that a person shall not have his remuneration diminished during his term of office and that he be paid a travelling allowance. Clause 24 deals with the Commissioner of Trade Practices. It specifies his salary at $19,500 per annum which is currently paid and an annual allowance at the rate of $1,000.
– Is lt the wish of the Committee that the amendments to clauses 8, 10 and 11 be taken together? There being no objection it is so ordered.
– I thank the Attorney-General (Senator Greenwood) for what he has said in response to my remarks. With respect, I say that it was a very positive response. But another point of some great principle in the community has arisen from his amendment. The Attorney-General is proposing that the presidential member be a judge or a person having the status of a judge of one of the courts. This seems to me to touch upon the question of whether there is a true separation of powers. I know that this provision exists in some other legislation but it one starts to look at the substance of the doctrine that there should be a separation of powers, it seems to me - looking at the matter broadly - that if a person is appointed to be a judge under some legislation and under some other legislation is appointed to cany out administrative duties then we are breaking down the separation of powers. If that doctrine is to apply in the community is it not detracting from the position in which the Federal judges should be? If they are independent of the executive they will confine themselves to their official duties - or at least matters with which we understand they are concerned judicially. They should not be concerned also administratively. That was the basis of the boilermakers case.
If we are breaking the precise application of the principle are we not breaking it down if we start to appoint judges lo carry out administrative tasks such as this? We are taking a judge from a court and saying that he will be able to operate as the presidential member of the Trade Practices Tribunal. I suggest that it is a matter of some considerable importance as to how far that principle should go. I do not think it is satisfactory that judges should be used for this task, irrespective of the strict constitutional position. I do not think that is good practice. That is my present inclination on the matter. I suggest that this matter ought to be looked at again before the legislation is strengthened because we may sec much more of this in future. If this practice is to become more common it will in relation to the separation of powers certainly be a different picture, from that which we had envisaged after the boilermakers case.
There are several other minor matters to which 1 wish to refer while I am on my feet. One relates to the provision in clause 15 for the making of an oath or affirmation of office. It seems to me that we arc carrying things a bit too far by requiring somebody to make an oath or ‘ affirmation of office every time he takes on a new post. A similar experience occurred in regard to the Australian Capital Territory Legal Practitioner’s Ordinance. I was told that some 300 barristers had to come down to Canberra from Sydney, losing a day’s work and enhancing the income of Ansett Airlines or Trans-Australia Airlines, to sign some book and take some oath or affirmation. Fewer than 300 barristers may have been involved, but I was told that that was the number.
– I gather they did that in order to save themselves money in the future? I hope the Leader of the Opposition is not pleading their case?
– They came to Canberra for (he purpose of signing a document, which involved them in a considerable waste of time and money. These barristers had to fill in some kind of an application form for entitlement to practice in the Australian Capital Territory. I should have thought that the necessity to come to Canberra could have been avoided, lt put these barristers to a totally unnecessary expense. One of these eminent counsel said that it would have been better if they had been able to sign the necessary documents in Sydney and perhaps make a contribution of $50 each or something like that to the law library, as is done in some States, instead of having one by one to traipse down here. As the Attorney-General said, they had to follow this procedure to save themselves the expense of coming down twice. If they had not followed this procedure they would have had to go through the procedure of making a formal application.
I am not concerned so much about that aspect in this Bill. What I am concerned about is things of this nature finding their way into every piece of legislation. I think there are some provisions in this legislation which could be dispensed with. We seem to be carrying things a bit too far. It seems every time somebody takes on a post he has to go through a lot of red tape. 1 am not attempting to raise any great clamour about this matter. I am simply wondering whether somebody could look through the Bills which are being introduced in this Parliament and cut out some of the clutter that is in them. It would make things a lot easier. Perhaps it is excusable to have all this red tape in regard to appointments to high offices, but some of the paper work should be eliminated in regard to appointments to more minor offices. In that way matters could be managed with a lol less formality.
A lot of emphasis seems to be placed upon rituals and formalities whereas we know that for 10 years the main object of the legislation has never really been attended to. We seem to deal very well with all the trappings. There is great precision in that regard. But we are not having much success with the main purpose of this legislation. That is not a criticism of the Attorney-General because he was not responsible for the framing of the previous legislation. I know that he has just taken over the responsibility for this legislation. However. I would suggest to him that some attention ought to be paid to whether all of the red tape involved is actually necessary.
– Senator Murphy has raised 2 points. One was in relation to whether it is a desirable practice to have persons who hold judicial positions appointed to what are called administrative tribunals. This is a subject which has been raised as a matter of strict constitutional propriety before the High Court of Australia. In the Tasmanian Breweries Pty Ltd case the High Court determined, putting it shortly, that the Trade Practices Tribunal is not a court or that the members of the Trade Practices Tribunal are not exercising judicial power. However, it is a fact that the Chairman of the Tribunal is a judge. He is a person who holds an appointment as a judge of the Commonwealth Industrial Court and. I think, of the Supreme Court of one of the Territories. I must say that I disagree with the approach which Senator Murphy has adopted in this area. Even though as a matter of strict law administrative tribunals may not determine rights, so that it becomes a question of whether they are exercising judicial power, they do nevertheless make decisions which lead ultimately to the determination of rights of individuals.
Involved in the determinations of a tribunal such as the Trade Practices Tribunal is an assessment of the tremendously difficult concept of public interest. This Bill lays down various things which have to be taken into account in determining what is in the public interest and whether restrictions in agreements or practices which are engaged in contravene the public interest. There has to be a decision involving a balancing of those considerations which are urged by those engaging in the practice as being sufficient to outweigh the detriments which will be imposed by engaging in competition. I think it is desirable that these concepts, which are expressed as the letter of the law involved or contained in a statute, should be looked at by persons who are trained and able to assess the relative weights which have to be given to the.se considerations. 1 am not one who maintains that lawyers are the acme of perfection. There are lawyers who take a view of legislative requirements which prevents them from seeing the true purpose which the Parliament had in mind. But I. do believe that lawyers and judges are well equipped to make the decisions which have to be made and, if one can make the right judgment as to who are the appropriate judges to sit on these tribunals, I believe that the best service can be rendered by people who are legally trained.
– That is difficult.
– I accept the point that Senator Poke makes, but possibly in a way different to that which he has put it to me. lt is not always an easy matter to be sure that the right man has been chosen for a particular job, but overall I believe that legal training is a desirable attribute in the sort of area in which the Trade Practices Tribunal has to deal. I would therefore challenge the broad proposition with Senator Murphy has put forward. lt is not as if the legal member, who is the President of the Tribunal, sits alone because he does not. He has the assistance of persons who are trained in business, industry or administration. Of course, it is a tribunal of 3. Therefore the lawyer is in a minority of one. But I believe that the value of his contribution is such that it is desirable for a legally trained person to be in this position. The present President of the Tribunal is, as I have said, a judge of the Industrial Court. The purpose of this legislation is to validate the positions which people currently hold.
The other aspect to which Senator Murphy addressed himself concerned the requirement for persons who take appointments to make oaths and affirmations before they enter upon the discharge of the duties of their office. Here again I am inclined to feel that it is a desirable practice to continue what certainly had its origins far back in history. The forms of the court are important. The obligations which are recognised by the taking of an oath or affirmation are also important if for no other reason than the fact that a sanction is available. If Senator Murphy looks at Clause 145(2.) he will find that the persons who are currently holding positions do not have to take their oaths and make their affirmations again; the oaths which they took and the affirmations which they made originally sustain them for the continued occupancy of their office.
When one considers the nature of the oath or affirmation, its value is apparent. Clause 15 refers to the First Schedule, and the requirement is that a person shall take an oath or make an affirmation that he will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors according to law, that he will well and truly serve her in the office which he undertakes and that he will faithfully and impartially perform the duties of that office. The language of the statutes of this country requires that members of Parliament shall take a similar oath or make a similar affirmation. I do not think it is reasonable to require that those who enter into the discharge of office, such as those involved with the Trade Practices Tribunal, should likewise take such an oath or make such an affirmation.
Amendments agreed to.
– I draw attention to what might be considered to be a shortcoming in the formulation of clause 18. I was pleased to hear the Attorney-General state with humility befitting a lawyer that he did not consider that lawyers were, to use his words, acmes of perfection. There might be a supposition in clause 18 that goes beyond the Attorney-General’s appreciation of the standards of lawyers as just enunciated. 1 shall read the clause to make clear what 1 see as being a shortcoming. Clause 18 states:
When a member, other than a presidential member, is informed by the President that the President proposes that the member shall l>e a member of a Division of the Tribunal in any proceedings, the member shall, to the best of his knowledge, disclose to the President any direct or indirect pecuniary interest that the member has in any business carried on in Australia, or in any body corporate carrying on any s’uch business, being an interest that could be in conflict with his dixies as a member of the Tribunal in those proceedings.
It is obviously a very salutary provision as it is most desirable that the public should have complete confidence in the fairness of the members of the Tribunal in dealing with any unfair trade practices that might come before the Tribunal.
Why, one may ask, should this requirement of full disclosure be limited to the members of the Tribunal other than a presidential member? lt is not unknown in this community for members of the judiciary to hold shares in great public companies. Of course, I am not suggesting that there is anything improper in a judge being a shareholder in the Broken Hill Pty Co. Ltd, for instance. But surely if it is required that a member shall make full disclosure this should apply also to a presidential member. The Attorney-General might do some reframing of this clause which would make it clear that the standard of disclosure which is required of the members of the Tribunal should apply also to presidential members.
– I do see the point that is raised by Senator James McClelland, but I do not take the same view of it that he does. I take the view that a judge is appointed because of his qualities to be a judge, and once he enters upon the role of a judge he is bound by the proprieties of his office. Those proprieties impose upon him very strong obligations the discharge of which I think we in Australia can testify from experience has generally been most acceptable. That is because a judge knows that he is there to do justice as between the parties, and if there is any impediment which would prevent him from not only doing justice but also giving the appearance that he is doing justice he will make that apparent to the parties. It is one of the features and one of the attributes of judicial office to which those who are appointed to judicial office adhere.
My own belief is that it would create an odious distinction to require a judge who becomes a presidential member of the Trade Practices Tribunal, where he is obligated not to act judicially as a matter of law but to apply himself judicially as a matter of practice, to reveal that which he is not required to reveal in other activities of a judicial character in which he engages. It would be equally odious for him to have to disclose what interests he may have when other judges in other courts of the land are not required to do so. There may be differences of view as to whether or not that is a good or a bad principle.I would see more merit in a principle if it were to apply generally than if it were to apply to just one individual. But, as I have said, it is a practice which is recognised and accepted by holders of judicial office.
Members of the Tribunal to whom this particular clause is directed are not persons who hold a judicial office. They are persons who may be appointed because of the experience which they have in industry, commerce or public administration under clause 8 (2.). It is not unreasonable, having left a position in industry or commerce and prospectively seeking to go back to it. that if they have any financial interest in a particular case which would disqualify them they should reveal it. I use the word disqualify’ in the sense that they may have an interest or may appear to have an interest which would suggest that there is a partiality or a bias which would vitiate the decision which they make. Appreciating the sentiments which Senator James McClelland has raised, it is a provision which 1 would not wish to alter at this stage. I commend to the Senate the language of the clause as drafted.
Clauses, as amended, agreed to.
Clause 34 (Secrecy).
– I move:
The reason for this is that I propose to move in relation to another clause with which we will deal later and it will be more convenient to deal with this provision at that stage.
Question resolved in the affirmative.
Proposed new part III A.
– I move:
The proposed new Part follows the words of one of Sir Garfield Barwick’s original proposals. It is taken virtually word for word from the proposals that were put by Sir Garfield when he was AttorneyGeneral These were presented on 6th December 1962 by the then Acting Attorney-General, Mr Freeth, on behalf of Sir Garfield. The proposals set out a number of practices which were regarded as inexcusable and therefore unregisterable. They included persistent price cutting at a loss to drive a competitor out of business, and also monopolisation. What was said then was this:
Monopolisation will be defined, broadly speaking, as acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business, or in a manner that is unreasonable and detrimental to consumers of goods or services. Monopoly power, for this purpore, will be defined as the power to fix, or influence substantially, the market price of any kind of goods or services, or to prevent persons entering or expanding businesses.
These practices. along with certain others, were dealt with by Sir Garfield Barwick. The other practices were collusive tendering and collusive bidding. It is noticeable that in this legislation, as in the previous invalidated legislation, collusive tendering and collusive bidding arc dealt with, broadly as was intended by Sir Garfield Barwick. These practices are inexcusable.
The other matters simply have not been dealt with. This seems a little hard to understand because the practices are regarded as bad practices. They are restrictive trade practices which should be dealt with. Predatory pricing was dealt with in the United States 35 years ago when the Patman-Robinson Act came into force in 1936. That Act made it a criminal offence to undersell a competitor in order to drive him out of business. That practice was regarded as a menace to the position of the small businessman. Although prices are cut, which might be thought to assist the consumer, experience has shown that this is a very temporary help to the consumer if in fact the price cutting is of a predatory nature. It is not ordinary price cutting but price cutting which is designed deliberately to drive a competitor out of business. The purpose is to ensure a monopoly of that business so that the predatory operator will be able to fix whatever prices he likes- anything that the market will bear. We suggest that it seems reasonable that this kind of underselling at a loss in order to destroy a competitor should be dealt with. One man should not be able to carry out this kind of activity in order that subsequently he might be able to raise prices after he has destroyed his competitor.
I deal now with monopolisation. I find it very difficult to see how the Government would not support what we are putting.
After all, this is the Barwick proposal. What I read is taken virtually word for word from the Barwick proposals. Why should it not be in the legislation? We would suggest to those who are wanting to strengthen the legislation that there is no need for us to wait for years to elapse if something that is clearly before us should be included in the legislation. If honourable senators opposite do not want to have the Australian Industries Preservation Act provisions applying to outlaw monopolisation, why do they not settle for the Barwick proposal which would outlaw it? If they really mean what they are doing, it cannot be that difficult. As I understand the position, no objection was taken to the form of these proposals when they were earlier suggested. They came from a very eminent source. Presumably he knew what he was about. He acted upon the advice of those who no doubt were advising the Government. Why cannot the proposal be implemented? Why do .we have to wait until the strengthening of the legislation? If the obvious course is to implement the Barwick proposal, that should be put into the Act. Was Sir Garfield Barwick wrong? Was he suggesting something that would injure persons or was he trying to get some competition and trying to break down the practices which were injuring the consumers? I ask Government members and members of the Democratic Labor Party: Why should not these proposals of Sir Garfield Barwick, using his very terminology, be put into the Act right now? Why should one month, let alone 6 months or perhaps years, elapse before the matter is sorted out? Why should we be deprived of the benefit which the then AttorneyGeneral, the originator of these proposals, thought was necessary?
– Sir Garfield Barwick’s proposals are not likely to be upset now that the High Court has ruled in the way in which it has.
– I thank Senator James McClelland for the reminder. Especially in the light of the decision in the concrete pipes case, no difficulty will be presented. Why should not these proposals be included? Is there some reason which we have not been told why the provisions against monopolisation should not be dealt with? Is there something that we do not know? Is there some powerful reason which actuates members of the Government and the Democratic Labor Party to say. ‘Let us deal with everything else, but when it comes to monopolies we are not prepared to accept what Sir Garfield Barwick told us. We will stand firm and fight to the last ditch to see that no law dealing with monopolisation is introduced’. I would suggest that the proposed new Part is a proper provision to be inserted. Provisions against monopolies exist in other countries. If the Government does not want a law against monopolies, what is the point of introducing this legislation?
Earlier today I spoke about the rate at which mergers were taking place. This country has been described as one of the most monopolised in the world. It has been said that it has twice as many monopolies as the United States and 3 times as many as the United Kingdom. These estimates were given several years ago by Professor Wheelwright. The position has worsened since then. If the Government does npt intend to agree to these provisions could the Attorney-General, or perhaps the honourable senators who are not prepared to agree to them, tell us why they have an objection to a simple law which would deal with monopolies in the way in which it was proposed by Sir Garfield Barwick that they be dealt with? Until we are convinced that there is some overwhelming reason other than the desire not to step on the toes of the monopolies that support the Government, we propose to persist with the amendment.
– I think I should reiterate, because I think it is basic to the attitude which I take with regard to all the amendments, that this legislation is interim legislation designed to restore the provisions of the invalidated Act, pending the introduction of different provisions which will flow as a result of an exhaustive examination of what is required. In those circumstances I am not prepared, and the Government is not prepared, to accept the proposals put by Senator Murphy because they anticipate a proper consideration and examination of what is involved in these practices. I would hope that that would be the view of the Committee. I turn to the provisions moved by Senator Murphy with regard lo predatory pricing and monopolisation and deal firstly with persistent price cutting. Under Sentaor Murphy’s proposal, a person who engages in persistent price cutting at a loss, with the object of substantially damaging the business of a competitor or of preventing a possible competitor from entering into competition, is guilty of an offence. I consider that ‘price cutting’ is an emotive expression.
If a person is engaged in business and can secure a greater share of an available market by selling at a lower price, I for one would say good luck to him because he is the person who is giving the consumer what the consumer wants, and the consumer would appreciate the ability to buy goods at a lower price. One can see price cutting of that character in many areas, in large and small businesses. If there is a prospect of gaining a market which will ensure a greater volume of turnover and, therefore, prospectively a greater share of profits, a businessman will engage in price cutting. I feel that that is part and parcel of the competitive system. It is a moot point whether in so ordering his affairs a person who engages in price cutting of the character I have just mentioned is doing so with the object of damaging substantially the business of a competitor or of preventing a possible competitor from entering into competition.
If one looked at the subjective intention one could come up with a variety of answers. If one looked at it objectively it may well be that a person who is concerned simply with expanding his business is to be regarded as engaging in a practice of substantially damaging the business of a competitor. I make no final judgment on these matters. I think what I have said indicates something of the problems in this area and something of the problems with regard to Senator Murphy’s amendment. Honourable senators should not regard the existing legislation or the Bill before the Committee as not containing provisions relating to price cutting. Section 36 (2.) of the legislation states:
Engaging in monopolisation, within the meaning of the next succeeding section, is an examinable practice . . .
Of course, if it is an examinable practice lt has to be looked at by the Commissioner to determine whether it is a practice which fs contrary to the public interest. But what is monopolisation? That is defined in section 37, which states: . . a person engages in monopolisation if. being in a dominant position in the trade in goods of a particular description, or in the supply of services of a particular description, in Australia or in a part of Australia -
I interpolate to state that the existing section indicates the market area in which the practice is engaged in. which is something that Senator Murphy’s clause does not advert to: he takes advantage of that position so as to - (b.) engage in price-cutting with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition with him:
Practice has indicated that there is a need for that language to be looked at again in the light of Senator Murphy’s amendment and because of the problems to which T have referred. But the point is that this practice is engaged in only if the person is in a dominant position in the particular trade in the particular part of Australia in which he has a market and he takes advantage of that dominant position. It is necessary to have, therefore, something of the character of a real monopoly situation and for that to be used in a way which would damage a competitor. That was the approach of the legislation in 1965. Whether it should be the approach of the new legislation that we will have is a matter which I think requires examination, not only before the legislation is introduced but also, obviously, when it comes into this chamber.
The second aspect of Senator Murphy’s amendment is that a person who engages in monopolisation is guilty of an offence. The honourable senator referred to the language which Sir Garfield Barwick used when, as Attorney-General, he made the statement which started off the trade practices legislation in this country in 1962. I have picked up in my copy of the statement the language to which Senator Murphy referred. Sir Garfield Barwick then went on to say:
Mere possession of monopoly power would noi of course be unlawful. - I have already said that in this scheme the Government has concentrated on harmful acts, rather than upon the mere possession of power to do them, and what i propose in relation to monopolies as such will be in conformity with this view.
So Sir Garfield Barwick was talking about the acts which a person who holds monopoly power engages in and not the mere possession of a monopoly. May I say, because it is a truism, that the person who in language states the principle, even though he says it will have to be defined in this way, is vastly removed from the man who has to get down to the work of actually drafting a legislative provision to give expression to the principle and who has to do it in a way which takes account of the myriad of instances which ought to be comprehended? I venture to say that when one looks at what Senator Murphy has proposed it is difficult to know precisely what are the harmful acts with which he is concerned. I imagine that he would say that when he proposes that a person who engages in monopolisation shall be guilty of an offence, he is taking account of something more than a mere possession of monopoly power. But on the other hand, his definition is simply: monopoly powers’ means the power to fix, or influence substantially, the market price of any kind of goods or services, or to prevent persons entering or expanding businesses.
If ‘monopolisation’ means simply ‘acquiring or using monopoly power’, it is difficult to know what acts the honourable senator is particularly concerned with. Is the possession of monopoly power and the selling of goods by a monopolist in itself an offence? I would venture to say that a strong argument could be made on Senator Murphy’s amendment that that is the position. If that is not the position, what does a person have to do to be guilty of an offence? That is not clear.
Because of the uncertainties of language, because of the very real difficulties of clarifying what is a complex area - in saying that I am reminded of what Senator James McClelland said in the course of his speech on the second reading, that he, for one, would freely concede that this is a complex area - this type of approach requires more than is involved in the simple amendment which is put forward by Senator Murphy. I venture to say that it requires the consideration which can be given to it by the exhaustive type of examination which I and my Department are engaged upon.
– This proposition was put back in 1965 on the basis that this was Sir Garfield Barwicks proposal. Sir Garfield Barwick said that a number of offences, including collusive bidding, collusive tendering and predatory pricing and monopolisation should be inexcusable. Following his proposals, the terms were set out in the Bill which was before us in 1965. Prior to then, apart from Sir Garfield Barwick advancing these proposals, as I recall it Sir Robert Menzies in 1963 said to the people that that was what his Government would do. But it did not do it. The legislation was introduced in 1965 when Sir Garfield Barwick had gone. In the Senate this proposal was again put forward. As I recall it, there was support for the amendment containing the proposals not only from the Australian Labor Party but also from the representative of the Democratic Labor Party. This seems to us to be a fair amendment. As for the suggestions that are being raised about there being no time for consideration, the Government has had plenty of time to consider this. The former Attorney-General spoke about strengthening the Act. The Government has had a great deal of time to deal with monopolisation and it cannot be said that it needs further time to deal with it. This is a temporary enactment. We know what will happen with it. lt will drag on and on. As Sir Garfield Barwick said, there ought to be provisions against monopolisation. I would suggest to the Senate with great respect that the amendment ought to bc adopted and that if the AttorneyGeneral has any criticism of some form of it, it is easily open to correction either here or in the other place. If he thinks that there ought to be a comma in some other place, that is a matter that can be dealt with easily. The important thing is the principle that this amendment should be inserted in the legislation. I suggest, with respect, that the Committee ought to agree to the amendment.
– After listening to the Attorney-General (Senator Greenwood) reply io the amendment proposed by Senator Murphy, I suggest that honourable senators must feel some grave misgivings about the nature of the strengthening legislation that is in store for us. If the Minister had confined himself to the familiar pica that this is a complex amendment requiring great thought and some time - even considerable time - we might have, even though a little impatiently, given some weight to his submission. But he took it upon himself to debate the merits of what is suggested in this amendment in a way that suggests that anything along these lines is not to be expected in the ultimate strengthening legislation. For instance, I was appalled to hear him say: ‘Good luck to the price cutter’, as though this is good, old fashioned, vigorous, competitive, capitalist trading with which no objection can be found. He suggested that there was some benefit to the consumer. Senator Murphy made it perfectly clear that the sort of price cutting he was discussing was not the ordinary sort of competition that we get every day between traders. He was dealing with the sort of price cutting which has as its purpose the driving out of business of competitors by people who have the economic strength to do so in order that the person doing this will be in a position later on to charge whatever he likes. Sir Garfield Barwick rightly considered that this was an obnoxious practice and that an end should be put to it straight away.
A further objection that the AttorneyGeneral raises to this sort of provision is that it imports a subjective intention. How, he asks, is a tribunal to be able to make up its mind that this was the intenion of the price cutter? He suggests that this is a task which is somehow beyond the reach of a tribunal dealing with this sort of matter. But I would point out to the Committee that there is nothing strange at all in this sort of proposal. This imputation of a subjective intention is something which the Commissioner of Taxation or his agents do every day. We are completely familiar with the situation of a man who may buy some shares or some properties in the hope that they will appreciate. When he disposes of them he has the task of convincing the Commissioner of Taxation that he made his investment or bought this property lor the purpose of income and not for the purpose of making a capital gain. A discretion is conferred on the Commissioner of Taxation and on the board of review set up under the Taxation Acts to decide this subjective matter. The test as to whether this transaction falls within the taxing aegis of the Commonwealth is a purely subjective test and no difficulty is experienced by the Commissioner of Taxation in making up his mind every day about that sort of thing. So I would suggest that to give the Trade Practices Tribunal the task of deciding what is the intention of the company which engages in these price cutting practices is something which is not strange at all. It is something which is quite familiar to our law and there is no reason why a provision such as this should not also fit into the trade practices legislation.
– There is a further point I should have covered before. Of course, the whole basis of the legislation is that it be a corporation which engages in these practices. That is not the language of the new clause proposed by Senator Murphy; it simply refers to a person and not to a corporation. This immediately raises a question as to whether or not there might not be some constitutional doubt as to its efficacy. On the advice on which the Government has acted, there certainly would be that doubt. A second point I make - and I think this a fundamental point - is that under the definition of monopolisation which Senator Murphy has advanced and the offence which he has created, is it an offence for anybody who has monopoly power to sell goods? I believe it would be. A person engages in monopolisation and he is guilty of an offence. Monopolisation means acquiring or using monopoly power with certain intentions. If a person has a monopoly power, which is simply the power to fix or to influence substantially the market price of any kind of goods, then it appears to me that every time such a person sells goods he is engaging in the practice of monopolisation. Whether or not I am right in that view, it appears to me that this is a step which ought not to be taken without full consideration. As I have already assured the Senate, these are matters which are being taken into account. They are not matters which would appear to be appropriate to bring into the legislation when it is designed purely to be interim legislation pending a review of the whole purview, scope, and purpose of the Act to which the Government is committed and to which the Committee knows we are giving our time and attention.
– I suggest that the matter is too important to be passed off by the Attorney-General in this way with the suggestion that in some way the use of the word ‘person’ is harmful. I have been skipping through the provisions of this Bill and I see many places where the word ‘person’ has been used. For instance, clause 66, which deals with resale price maintenance, states:
It is unlawful for a corporation or other person to engage in the practice of resale price maintenance. . . .
– It is defined in clause 5. It is defined as including a corporation.
– Yes. A person includes a corporation. It is difficult to say that this matter must be dealt with on the basis that this is a sufficient answer. The Attorney-General has just skipped across that provision. Clause 70 states:
Criminal proceedings do not lie against a person by reason only that he . . .
There are half a dozen provisions that deal with the situation of a person. Of course, legally a person includes a corporation.
– It is defined in clause 5. A person includes a body corporate under that clause of the Bill.
– I think that would be sufficient to give operation to the provision, and I do not think it could be suggested otherwise. This is a matter of principle. If the principle ought to be adopted, this ought to have effect. If it is thought by the Attorney-General or someone else that there should be some modification of the language, I suggest with respect that that modification can be made either here or in the other place. That is not the question. The question is the principle of whether there should be a law against monopolisation, that is, the conduct of acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business, or using monopoly power in a manner that is unreasonable and detrimental to consumers of goods or services. They are the very words that were used by Sir Garfield Barwick in his proposals to the Parliament, as are the words ‘monopoly power means the power to fix or influence substantially the market price of any kind of goods and.’ or services or to prevent persons entering or expanding business’. If it were necessary the word ‘corporation’ could replace the word ‘person’, but I do not think it is necessary because it is already comprehended. The Attorney-General has the assistance of people who are able readily to draft these matters. If there is any difficulty in the language it can easily be cleared up, but I do not see any appreciable difficulty. The provision would be operative and, as I have said, the review could be dealt with elsewhere if it is a matter of cleaning up language. As a matter of principle I would like the Committee to support the amendment that has been moved.
– My attention has been drawn to the debate on the Trade Practices Bill in 1965. I do not speak of this matter with any personal familiarity or acquaintance, but on that occasion an identical proposition was presented in the debate. Senator Gorton, as he then was, was in charge of the Bill in the Senate. Obviously there is nothing particularly novel about this proposition in the sense that it was before the Government for consideration many years ago, and before the Senate. The element of surprise would therefore appear to be absent in considering this proposition. On that occasion the Australian Democratic Labor Party, then represented by Senator Gair and Senator McManus, saw fit to support the proposed amendment. I see no reason why the Democratic Labor Party should depart from the attitude it then took.
I have not heard from the AttorneyGeneral any compelling reason why there should be any variance in the attitude of those who at that stage took the stance disclosed in the debate of 1965. I do not know whether I correctly understood the Attorney-General, but I cannot believe that the mere fact that a person has monopoly power in itself in the reading of this section would preclude him from trading without offending the provision. It would appear to me that the provision contemplates that there must be first of all the existence of monopoly power and the intention to exercise it contrary to the statute. Therefore I do not think that a fair interpretation of the provision would create such a position.
Mr Chairman, in the circumstances the Democratic Labor Party sees fit to support the amendment proposed by Senator Murphy, it being a repetition of an amendment proposed long ago and one which emerged at the initiative originally of Sir Garfield Barwick. Apparently it was put to the people by the then Prime Minister before an election. It has been before the people and the Parliament for consideration over very many years and again it presents itself. If, when this legislation is finally drafted in definitive form, it is suggested that this proposal should be abandoned, there will be another opportunity to consider it. I do not see at this stage why the Democratic Labor Party should not support the amendment.
– I regret that the Australian Democratic Labor Party has taken the view expressed by Senator Byrne, but I am thankful for his suggestion that the opportunity further to consider this matter can be taken. I must say that the Government could not see in this current legislation, which is the existing legislation of the last 4 years, how this proposed provision could live with the other provisions in the legislation. I have already assured the Senate that the whole question of monopolisation is being taken into account in the strengthened legislation which is currently under consideration. I am fully conscious of the arguments which may be raised but I suggest to the Senate that the language used by Senator Murphy makes the holding of monopoly power the real criterion of whether offences will flow, because sub-clause (2), which defines monopolisation as the intention of preventing a person from entering or expanding a business or using monopoly power in a manner that is unreasonable and detrimental to consumers of goods or services, is tremendously difficult of interpretation.
I raise the question of whether the mere selling of goods and engaging in business does not, ipso facto, flowing from the holding of monopoly power, amount to the practice of monopolisation. That is one factor which I suggest for the consideration of honourable senators.
Likewise I raise the point that the whole of this legislation has been specifically drafted. I know that the Parliamentary Counsel and an officer of my Department spent 5 weeks doing that and nothing else with a view to tying this legislation to the corporation power. The Bill has as its basis either a corporation doing something or a person doing something to a corporation. The proposal of Senator Murphy does neither of those things and it perpetuates, I commend to Senator Byrne, the vice which the High Court found rendered the last legislation invalid. I ask honourable senators to consider these factors in their appreciation of Senator Murphy’s proposal.
That proposed new Part IIIa be inserted (Senator Murphy’s amendment).
The Committee divided. (The Chairman - Senator Prowse)
Majority . . 2
Question so resolved in the affirmative.
– Before leaving the matter, let me say that I am appreciative of the fact that the Committee has declared the matter in principle. If as the Attorney-General has suggested, without touching the substance of dealing with monopolisation or predatory price fixing, some alteration of the verbiage would make him happier about conforming with any constitutional requirements, I am sure that the committee could attend to this before the conclusion of the matter or it could be dealt with elsewhere, now that the principle has been established.
– I move:
The Committee will appreciate that this is a real problem. One of the difficulties which those in trade or commerce strike is exclusion from the trade associations. It is said that this is a method of really preventing them from taking part in full and fair competition. It is suggested that the restrictions in regard to such associations ought to be dealt with. That is the purpose of this amendment. I commend it to the Committee.
– The Government does not accept this amendment. The reason for not accepting the amendment is that it is so sweeping in its provisions that it requires trade associations which may not have any practices which ought to be within the purview of this Act to register their practices or to give full particulars of their practices to the registrar. There is already in the legislation a provision which is contained in clause 35 which indicates that where there is an agreement which contains restrictions that agreement is required to be registered. There are likewise provisions which require practices which involve some restrictions also to be registered.
A trade association, just because it is a trade association, ought not to be required to register its constitution on the basis that it is deemed to be an examinable agreement. That seems to be the essence of what Senator Murphy is proposing. ‘Trade association’ is defined in clause 139(1.) of the Bill as follows.
In this Act, ‘trade association’ means an association, body or organisation, whether incorporated or not, formed, existing or conducted for the purpose of furthering, or for purposes that include or are conductive to the furthering of, the business or professional interests of all or any of its members, but does not include -
That clause contains further sub-clauses with various paragraphs. It is a very wide clause. It would seem to me to be an unreasonable imposition by legislation, which is designed merely to deal with anticompetitive restrictive trade practices, to require every trade association, as so broadly defined, to submit its constitution to the Commissioner of Trade Practices and to be subject to penalty if it does not.
– 1 move:
After sub-clause (5.), insert the following subclause: (6.) An examinable agreement shall be deemed 1o be unlawful and, if a person puts it into operation or attempts to put it into operation before the Trade Practices Tribunal has declared that it is not contrary to the public interest he shall be guilty of an offence. Penalty: Ten thousand dollars.’.
This is a matter of principle really. The notion behind the amendment is, in effect, to reverse this procedure whereby everything is all right until it has been examined and found wanting by the Commissioner. If it is found wanting, he has the great consultations and then he approaches the
Tribunal for some order. When the Commissioner has 13,000 agreements to examine, all this is hopelessly impractical, and the Commissioner as plainly as he could said so. There can be no progress. The Commissioner cannot get anywhere with his work, lt does not matter what we do. It is pretty obvious that this whole procedure has been found to be unsuccessful. The Commissioner would need an army of persons, a tremendous staff, and tribunals would be required to operate all over the place if we were to proceed on the basis that agreements are doomed to be all right until such time as the Tribunal has said otherwise. So the proposal really is to reverse the position, to do the same with this as with resale price maintenance. That is to say that the examinable agreement shall be deemed to be unlawful; that it stays that way and is not to be operated on until the Tribunal says it is not contrary to the public interest.
That is the question of principle which we put to the Committee. Again, if there is any suggestion that this ought to be altered in some way, let the Attorney-General suggest modifications which would be more suitable, lt is the principle of the matter with which we are concerned. Are we to carry on with this kind of hopeless endeavour? The experience of all those connected with it shows it is hopeless. Ought not the Senate now indicate to the Government that we want the procedures changed so that they follow the practice in connection with resale price maintenance, which is successful as far as it goes and which has proved to be successful elsewhere?
– I am very conscious that Senator Murphy’s amendment could cause a number of problems. I do not want to go into all of them because I do not want to advert to situations which could cause a great deal of apprehension in certain areas. He is suggesting that on the passage of this clause, if it were part of the Act as enacted, an examinable agreement would be deemed to be unlawful. I do not believe that its ramifications have been considered. It could not sit easily with the existing provisions of the Bill. After all, a person is required to submit his agreement to the Commissioner of Trade Practices and the Commissioner then has to make certain judgments. Under section 47 of the pre-existing Act - I think it is clause 47 of this Bill - he is empowered to form an opinion as to whether the agreement is contrary to the public interest, and if he is of that opinion he may institute proceedings. If the effect of Senator Murphy’s amendment is that an agreement is unlawful and you cannot act upon it until such time as it has been held not to be contrary to the public interest - in my judgment there is no doubt that that is its effect - then surely the position of the Commissioner is that his forming of an opinion ought to be the other way. He ought to form an opinion or be required to form an opinion that the agreement is in the public interest in order to bring it out or to exempt it from the unlawful requirements. That is one aspect which I think would have to be considered.
There is another aspect involved in the area of consequential amendments - and I have not seen any which Senator Murphy has proposed - and that is this: How does a person apply for an exemption? What are the requirements which he must satisfy? Is he to be taken as engaging in an unlawful practice and the idea of being able to get an exemption merely a thought not requiring legislative expression? I do not accept that that really is the way that Senator Murphy puts it but I raise these considerations because I suggest it is not a well considered amendment. It must tie in with other provisions of this legislation and it does not do that. This, too, is one of the areas to which quite obviously consideration is being given in the examination currently under way. This is holding or interim legislation. It runs counter to the general scheme of the existing legislation of the last 6 or 7 years to change it in this way when already a review is being undertaken.
– The Democratic Labor Party does not support this amendment. It would appear to precipitate tremendous administrative problems and would seem to cut across the whole conspectus of the legislation. I would imagine that the great bulk of examinable agreements would emerge unscathed from the examination. Therefore, to put all those in the position of those indelict and then to discover some of them were not appears to me to be a complete transposition of what should be the normal approach to this situation. I do not think it is necessary to expatiate on our reasons at length. This amendment does seek in a general sense to give the impression of a complete translation of where the responsibility and onus should lie and I do not favour that type of situation. Without going into that at any great depth I say merely that for these general reasons the Democratic Labor Party cannot support the amendment.
– It is hard to see how legislation of this nature can ever work unless the principle embodied in this amendment ultimately becomes part of the legislation. The mere fact that there are 13,000-odd examinable agreements before the Tribunal at the present time with no prospect whatsoever of being cleared up within the lifetime of members of this Senate surely is a reason why serious consideration should be given to an amendment of this kind. A very, very simple question is raised by this amendment. It is simply this: What comes first, the public interest or the interest of the corporations? Under the Government’s approach to the legislation it is clear that the answer is that the corporations come first. We submit that this is an utterly untenable situation. The idea that there would be great delays in clearing up the position of these examinable agreements under our proposed amendment is just preposterous. The fact is that most of these examinable agreements are very similar to one another. When one had been challenged, as it would be under our proposal, the position of hundreds, even thousands, would soon be cleared up. The way it would operate actually would be that it would become clear to the corporations at present indulging in these practices just what they could and could not get away with. The situation would become clear, I suggest, in a matter of months and the work of this Tribunal would not be clogged up and made a farce as it has been up to now.
– In answer to what was said I would like to adopt what was just put by Senator James McClelland. Either we have this principle or the legislation is going to be unworkable. It is true, as Senator Byrne said, that if we were to adopt it now it would cut across what is in the Bill. That is one of the reasons why at this stage I have not gone through the process of all the follow up clauses which the Attorney-General (Senator Greenwood) said he has not seen. If this principle is adopted it does cut across the rest of what he presently has in the Bill. If the provision is included an agreement is to be deemed unlawful and a person is not to put it into operation before the Trade Practices Tribunal has declared that it is not contrary to the public interest. The implication is that the application can be made to the Trade Practices Tribunal. I would think that that would follow even if the legislation did not provide for an application.
This matter is a little like that provision in section 141 of the Conciliation and Arbitration Act in which the Commonwealth Industrial Court is given power to make an order. It says that a person may apply to the Court for an order. Chief Justice Dixon said that this was a legislative trick; the legislature does not say what the law is and then say that you make an application - you can do it in the one stroke. Here the legislation says that something is unlawful unless there is an order of the Tribunal. Then it is pretty obvious that an application can be made to the Tribunal. At this stage it is not our province to be concerned about that aspect of the matter. What we are concerned about is putting forward what, we think should.be the appropriate principle to be applied. Unless this principle is applied in the strengthening legislation we are going to be in the same mess as we are in now , and have been in for years. Even when the legislation was presumed to be valid it was useless. We should have the same method of operation as is set out in respect of resale price maintenance. I am happy that the message got through to the Government. With regard to resale price maintenance the Government brought in what we wanted. It was a good and wise provision and it is capable of acting properly in the public interest. All we want is the same kind of approach to be taken wherever possible. Do not let us have laws under which the Commissioner is bogged down so that he cannot carry out his task. He tells us that if he cannot carry out his task no progress can be made.
Whatever is done with this Bill we think that the Senate should indicate its view. If our suggestion is not adopted in relation to this Bill I very much hope that the Attorney-General, with the will which he has indicated, will bring in some effective laws - something that will work. If the Attorney-General introduces this kind of proposal which he has inherited from his predecessors into new laws do not let him him come here and say that he is strengthening the law. Experience shows that that will be done only in an endeavour to set up a smoke screen and another unworkable proposal,I hope that the Attorney-General. will not do that. He assures us that he wants to strengthen the law. Let us hope that he does. Meanwhile the Opposition indicates that this is the general way in which the law should be operating - the agreements should be unlawful unless the Tribunal says that they are in the public interest.
That the new sub-clause 6 proposed to be inserted (Senator Murphy’s amendment) be inserted.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 5
Question so resolved in the negative.
Clause 35 agreed to.
Clause 36. (1.) Practices of the following kinds are examinable practices for the purposes of this Act:
– I move:
After paragraph (a) of sub-clause (1.), insert the following paragraph: (aa) in the supply of goods or services, knowingly discriminating, directly or indirectly, against competitors of the purchaser in that any discount, rebate, allowance, price concession or other advantage is granted to the purchaser over and above any discount, rebate, allowance, price concession or other advantage that is available to such competitors in respect of a supply of goods or services of like quality and quantity;
Can the Attorney-General (Senator Greenwood) tell us whether he has had a chance to look at the amendment which has been circulated? Can he tell us whether this provision has been met in any way by the amendments- which have been made since the legislation was altered by him?
– I believe Senator Murphy may be under a misapprehension. J thought I had clearly indicated what the Government is doing is simply re-enacting the provisions of the pre-existing trades practices legislation which had been declared invalid either in whole or in part by the High Court of Australia, except that some clauses are being altered to take account of the fact that it is corporations as distinct from persons which are now to be charged with offences. Apart from that and the necessary transitional provisions to validate some proceedings which were under foot and some decisions which had been made, this is not new legislation. The proposal by Senator Murphy in the next amendment he has foreshadowed, which is to provide for a new sub-section in clause 36, obviously involves doing something new to the old legislation. The short answer to his question is that from the Government’s viewpoint there have been no alterations of material substance to the provisions of this legislation other than those alterations which it has been necessary to make to justify the legislation under the corporations power which the High Court found the Commonwealth had.
– I am thinking in particular of the resale price maintenance provisions which have been introduced since 1965. Is there anything in them which touches on this proposition?
– The resale price maintenance provisions were introduced earlier this year and passed by the Parliament. Of course, those provisions were not affected by the decision of the High Court of Australia. They could not have been because they were enacted after the High Court had heard argument. Therefore, in one sense they would stand, or it could be argued that they would stand, without being incorporated in this new legislation. But it is proposed that they be incorporated in this new legislation so that there will be one complete Act. There are no changes to the resale price maintenance provisions apart from fitting them into this legislation.
– I propose to move several other amendments to clause 36. They will be in the same terms as the amendments moved to the Trade Practices Bill in 1965. I am happy to inform the chamber that on that occasion the Australian Labor Party received very valuable support from another quarter. I have reminded members of the Australian Democratic Labor Party of that fact because I would hate them to think on this occasion that the amendments are not of considerable importance.
– We might have changed our minds, you know.
– That is true. That can always happen in public affairs. One of those amendments was to sub-clause (1.) of paragraph (a) of clause 36. It was a simple amendment. It was for the deletion of the words ‘by any express or implied threat or promise’. Clause 36 refers to the acquisition of goods by a corporation from a person and the corporation inducing or attempting to induce that person ‘by any express or implied threat or promise to accept terms that are more favourable to the corporation than those upon or subject to which that person is willing to deal with other persons’. I have summarised the effect of it. On the last occasion objection was taken to the inclusion of the words ‘by any express or implied threat or promise’. On that occasion Senator McManus said:
I propose to vote for the amendment moved by Senator Cohen because in the discussions that I have had with representatives of small business organisations and with proprietors of small businesses, they have told me that in many respects discount discrimination is the biggest weapon monopoly is able to use against them. Therefore I support the proposed amendment.
It was argued that there should not be a restriction to the inducement being by way of any express or implied threat or promise because it would not be necessary for a representative of one of the large chain stores or somebody who had a huge purchasing power to make a threat or promise. All he would have to say is: ‘I am from so and so’ and that would be enough in itself. One could not say in evidence that it was an implied threat or promise but there would be an inducement to deal with that firm on terms more favourable than with others. The Opposition is not seeking in this amendment to make that an offence. All we are saying is that this practice should be looked at. The Opposition submits that it should not be necessary to have to prove that there has been a threat or promise before a practice becomes an examinable practice which the Commissioner can look at. The Opposition commends that proposition to the Senate. There is a provision in the terms I have outlined which has the same effect.
– May I interrupt you for a moment, Senator Murphy? Do you propose to press amendment No. 4 in the list of amendments which have been circulated in your name? Do you not think that the Committee should dispose with it before proceeding to the other amendments which you have foreshadowed?
– Very well. This amendment is similar. It relates to the supply of goods or services knowingly discriminating, directly or indirectly, against competitors of the purchaser in regard to discounts and so on. This proposition of the Opposition, which was supported by the Democratic Labor Party on the last occasion, is that this practice should be examinable. It was put by the late Senator Cohen, who pointed out the difficult position that the small business man was in when competing against the large organisations because of the discounts which were available to the large organisations. On that occasion Senator McManus said:
Many sellers would like to see a provision like this inserted, because they are in the position today of being stood over by the buying representatives of the big organisations and the chain organisations for all kinds of special discounts which are not part of the ordinary framework of business. Anyone who has examined the situation knows that to be so. These buyers are big; they have the power. The stand over the seller and demand all sorts of things which, in my opinion, the proposed provision would do something to stop.
This proposition again falls in the category of something of which the Government has had plenty of notice. It knows that this proposition was put forward on the last occasion by the Opposition and that it was supported then by Senator Gair and Senator McManus of the Democratic Labor Party. We think it is a reasonable proposition. We are not saying by this amendment that it is an offence. We are only seeking to make it a practice that the Commissioner can look at, that is, an examinable practice. So we say 2 things, firstly, that the necessity for there to be a threat or promise should be taken out and, secondly, that this other practice should be examinable. That will not mess up the framework of the proposal. There is no dislocation there. It is a very simple proposition. I suggest, with respect, that the Committee could well adopt this amendment.
– The Government will not accept this amendment. I give an assurance to honourable senators that the Government will most seriously consider this matter in the context of the review it is undertaking. The reason why the Government will not accept this proposition at this stage is twofold. Firstly, as I have reiterated many times, the Government regards this Bill as designed to validate what the High Court declared invalid. It is not new legislation; its purpose is simply to repair an existing vacuum. It is unquestioned that new legislation will be forthcoming in the new year. The second reason why the Government does not accept this proposal is that the Government is committed to the principle of competition and Senator Murphy’s proposal is, 1 believe, a denial of the benefits of competition. It proposes that a person who is a supplier of goods should not be able to supply to one person at a rate different from that at which he supplies to another person. It takes away the ability of the supplier to differentiate or, to use the language of Senator Murphy’s amendment, to discriminate between particular purchasers from that supplier.
– lt merely makes it an examinable practice.
– It makes it an examinable practice in the sense that if a person makes with a person any arrangement of any description which is different from the arrangement which he makes with another person he is compelled, if it is to be an examinable practice, to submit full particulars of what he does to the Commissioner.
– What is wrong with that?
– 1 think that is the vice, if I might put it that way, of what the public regards as bureaucracy. The vice is the form filling, having to comply with schedules and notices. I would have thought that what we want to promote in the community is the ability of persons to compete - the ability of a person to go to the supplier and to ask that supplier, to contract with that supplier, to enter into negotiations with him to get goods a little more cheaply because he is prepared to go to the trouble to do things which his competitors are not able to do. If the supplier is faced with the fact !hat if he makes any distinction in price between the various people to whom he supplies, he will be subjected to form filling. If he is to be regarded as engaging in an examinable practice, it appears to me that he will simply say: ‘Why should I go to the bother of making any special arrangements? I will just leave myself in the position where I will adopt a uniform selling price to everybody. It does not matter what representations are made to me, it does not matter what inducements are held out to me, I will adopt the same view with regard to everybody’. That, to me, is the antithesis of the spirit we ought to be developing. It would prevent people from being able to make deals by their own initiative which will enable the community to get the benefit of that type of competition. For those reasons we oppose the amendment.
– If what I have heard from the Attorney-General in the last few minutes is his philosophy we might as well forget the idea of ever having any trade practices law. He says in effect that he believes in . restrictive trade practices. It is as simple as that. It is an extraordinary statement. He said initially that what was behind this whole law, from its initiation by Sir Garfield Barwick, was the need to stop restrictive practices, to stop the kinds of setup where one person could say: ‘] will be able to deal with this person and discriminate against that one’. If we retain a situation in which the great chain stores can make these arrangements, in which they can have discriminatory treatment in their favour and against the little businessman, it is all over; there will not be any restrictive trade practices law. The Attorney-General has now told us that there should not be any laws against that practice. What hope have we of getting strengthened legislation when the philosophy he has just laid down so firmly is against the whole concept advanced over the years by Sir Garfield Barwick and others? Here we sit and hope that we are to get some strong legislation from a man who just does not believe in restrictive trade practices law. I suggest, with respect, that this proposition which was supported previously by the Australian Labor Party and by the Australian Democratic Labor Party ought to be accepted as an indication that we consider that these practices should be examinable. We do not even suggest by this amendment that they be outlawed but just that they be examined.
That the words proposed to be inserted (Senator Murphy’s amendment) be inserted.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 3
Question so resolved in the affirmative.
Senator MURPHY (New South Wales-
Leader of the Opposition) (10.22) - I move:
In paragraph (a) of sub-clause (1.) leave out by any express or implied threat or promise’.
I have indicated already the basis of the argument for the deletion of those words. The argument is the same as the one I advanced when I sought to insert certain words after the paragraph. We seek to make this practice an examinable practice, without there having to be proved that there was a threat or promise. As indicated when dealing with the previous matter, that was the basis upon which the matter was handled. I think the matter has been argued previously.
– The Government will oppose this amendment. I reiterate the argument which I advanced before. The first point is that the legislation is not new legislation. It is legislation designed to re-enact old provisions to validate legislation, in the light of the High Court’s decision. Secondly, this amendment seeks to create whatI would put to the Committee is an almost impossible situation. Clause 36 (1.) (a) deals with the situation that might be described as a buyer seeking to squeeze a seller in the sense that, as the legislation stood, by some implied threat or promise such as a boycott or other activity he seeks to persuade the seller to deal with him on particularly favourable terms. What is rendered a not examinable practice is where a person simply goes to another person and asks for favourable terms. A person who is starting up business and who is prepared to spend a lot of money in order to establish that business in an attractive shop in a new locale, may desire to have favourable treatment from the supplier. Under the old legislation that kind of conduct would have been prohibited if there were any implied threat or promise about it. If Senator Murphy’s amendment is carried, this practice will be an examinable practice and a person will be exposed to all the requirements of filling in forms and giving details simply if he asks for and succeeds in getting favourable terms from a seller. To me that is the antithesis of what we should be doing. Why should the small man be accused of engaging in an examinable practice if all that he is doing is seeking to get favourable terms to start up his business, for example?
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 3
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clause 37 agreed to.
Clause 38. (1.) In determining whether a corporation has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act. (2.) In determining whether a corporation has engaged, is engaging or proposes to engage in an examinable practice by reason of acts or things done or proposed to be done in a particular State or Territory, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act of that State or an Ordinance of that Territory. (3.) In determining whether a corporation has engaged, is engaging or proposes to engage in an examinable practice other than a practice of monopolization, regard shall not be had to a provision or condition referred to in paragraph (c) to (h) (inclusive) of sub-section (5.) of section 35 of this Act or to an act or thing done in pursuance of such a provision or condition.
-I ask for leave to move 3 amendments to this clause at the one time.
– Is there any objection? There being no objection, the Minister may adopt that course.
– I move:
It will be noted that clause 36, with which we have just dealt, defines certain types of conduct as examinable practices. Clause 38 provides for certain exemptions from examinable practices, as for example where a person who engages in a practice does so under the authority of State legislation. The Bill as drafted provided for the exemption to be given to a corporation and that was the limit of the exemption, but as I mentioned earlier the Bill regards actions by corporations or actions by natural persons as being within the framework of the Bill. Accordingly, it is believed appropriate that if an exemption is granted to a corporation, an exemption should be granted also to a person who engages in a similar practice.
Amendments agreed to.
Clause, as amended, agreed to.
Clause 39 agreed to.
Clause 40. (1.) For the purposes of this Act, the Commissioner shall cause to be kept a register to be known as the Register of Trade Agreements. (2.) Subject to this Act and the regulations, the Register shall be kept in such form and manner as the Commissioner directs.
Postponed clause 34. (I.) This section applies to every person who is or has been the Commissioner or a member of the staff assisting the Commissioner. (2.) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except inthe performance of a duty under or in connexion with this Act -
Penally: One thousand dollars or imprisonment for three months. (3.) A person to whom this section applies shall not be required to produce in a court the Register or any document relating to the affairs of any other person of which he has the custody, or to whichhe has access, by virtue of this office or employment under or for the purposes of this
Act, or to divulge or communicate to any court any information concerning the affairs of, any other person obtained by him by reason of any such office or employment, except when it is necessary to do so for the purposes of, or of a prosecution under or arising out of, this Act. (4.) Nothing in this section applies in relation to-
– I seek leave to deal with postponed clause 34 and clause 40. I propose to move amendments to both clauses.
– There being no objection, that course will be followed.
– I move:
The amendment proposes that there shall be a regulation to provide for the maintenance of a special section of the register and for the filing in that section of such particulars as the Commissioner may direct. These are matters which the Commissioner may think would be contrary to the public interest to reveal or which could substantially damage the legitimate business interests of any person if revealed to the public. We are not saying that the remainder of the register should be open but merely that a special section should be. In our view, if there were particulars the publication of which in the Commissioner’s opinion would be contrary to the public interest, it would be fair enough not to reveal them. I have in mind particulars containing information as to some secret process of manufacture or as to the presence, absence or situation of any mineral or other deposits or as to any other similar matter, being information the publication of which, in the opinion of the Commissioner, would substantially damage the legitimate business interests of any person. That sort of information could go into the special section of the register which would not be open, but otherwise, in our view, the register should be open and a person should be able to take copies of it. The proposal in relation to postponed clause 34 is ancillary. In relation to that clause I move:
This amendment provides that reference in this clause to the register shall be read as references to the special section of the register. At the moment the clause provides that the whole of the register shall be closed and that nobody shall see what is in it. In this way there cannot be the analysis of it that there should be. We are saying that the secrecy of the register should be confined only to those parts which the Commissioner thinks it would be against the public interest to have open or which it would damage the legitimate business interests of some person to have open. We think that this proposal is fair enough but that otherwise the register should be open. We are not saying that everything in the register should be open. There is a confining provision in respect of those matters in relation to which it should not be open. We are saying thai we should restrict what previously were the provisions about secrecy to the special section of the register. That is our proposal in essence. I commend it to the Committee.
– The question of the secrecy provisions and the efficacy of the existing provision are matters which must be given the most careful consideration. Anyone who reads the reports of the Commissioner for Trade Practices appreciates the value which there has been to him in the secrecy provisions. They have been a form of inducement to enable the business community to provide him fairly readily with the particulars that he has wanted. Equally, he has indicated in his latter reports the needs for some consideration to be given to the secrecy provisions with a view to speeding up the work of his office. These are the matters which are being examined at present in this review. There would be many problems if the amendment moved by Senator Murphy were to be accepted. After all, the particulars which have been received by the Commissioner have been received by him in the knowledge that they are confidential, in the same way as material supplied to the Commissioner of Taxation. What would the taxpayer think if, in the course of an amendment of the Income Tax Assessment Bill, a decision were taken that all the confidential information which has been received by the Commissioner of Taxation shall henceforth to be put into a special register if the Commissioner believes it is contrary to the public interest, and therefore exposed? No-one would know whether or not the material he had supplied would be viewed by the Commissioner as contrary to the public interest. The same would apply with regard to the trade practices legislation. Much of this material has been supplied on a basis of confidence. As it were, out of the blue without any opportunity for people to make representations as to whether this change is a good change or a bad change is it to be decided, in the course of the amending what is publicly regarded as holding or interim legislation, to remove the secrecy provisions in regard to certain particulars which have been filed with the Commissioner? This is a dangerous precedent. I think it could be regarded as a breach of faith on which people have had no opportunity to make representations. Accordingly, the Committee ought to proceed cautiously before it accepts this amendment. I feel that the Committee should accept the assurance, not because I give it but because it is knowledge of which the Committee is aware, that this is one area which the Commissioner has indicated ought to be looked at. Naturally, it is being looked at in the review which is being undertaken.
– I take it that at the moment the register is substantially if not completely secret. I ask the Attorney-General whether that is the case?
– I think that if Senator Byrne looks at section 34 of the existing Act and also at clause 34 of the proposed new legislation, he will see that it is an offence for the Commissioner or his staff to divulge, otherwise than in the performance of a duty under the Act or to the Attorney-General, information obtained or documents registered under the Act.
– It is intended in that section that the secrecy of the register be maintained. Section 40 states that the register shall be kept in such form and manner as the Commissioner directs. Is that to be read in consonance with section 34 which deals with the manner and form of the secrecy provisions? Am I to take Senator Murphy’s amendment to mean that there would be a dissection of information, some of which would remain secret and some of which would be generally available?
– In the light of the proposition put forward by the AttorneyGeneral, because there may be dangers inherent in this amendment and in the light also of the fact that the whole of the legislation can be re-examined, I think it might be imprudent for us to disturb the present practice. I do not feel disposed on behalf of the Australian Democratic Labor Party to support this disturbance of the existing practice at the present time.
– Is it the wish of the Committee that it takes one vote on the amendment to clause 34 and the amendment to clause 40? There being no objection, that course will be followed.
Clauses agreed to.
Clause 41 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.
– I move:
If the amendment is subject to registration, particulars ought to be furnished forthwith instead of 30 days later. There is a provision for extension if there are any difficulties. But if an agreement is entered into which ought to be looked at there should not be a period of 30 days. The requirement ought to be to put the agreement in straightaway. Of course, that does not mean within a second; it has the ordinary legal meaning. Our view is that these delays ought not to be part of this enactment. Persons ought to be proceeding expeditiously and forthwith. There is no reason for any delay. The agreements ought to be filed.
– If there is a bank up of 30,000 cases it is a little academic, is it not?
– At least they would be put in. That is the purpose of the proposal.
– The Government does not accept this amendment, although it appreciates the broad points which are made by Senator Murphy. The simple point is that this was a 30-day requirement when the legislation was originally enacted. Because this is interim holding legislation put forward on the clear understanding that there was to be no substantive alteration to the provision, the 30-day provision has been reinserted. I certainly feel that it must be looked at in the light of what Senator Murphy has said but not with respect to altering it to ‘forthwith’. This is a penal provision which carries penalties. There must be some period within which a person knows that he must comply. The word ‘forthwith’ is a word which carries some doubt as to whether it must be done within the next hour or the next 24 hours or whether if it is done within 7 days this amounts to a substantial compliance. It is a matter of whether or not there is sufficient certainty in what is provided. A period of days is undoubtedly a more satisfactory expression of a time within which something has to be done than is the expression ‘forthwith’ unless, of course, there are exceptional circumstances. I would ask the Committee to agree to 30 days on the basis that the matter will be looked at in terms of the represenations which have been made.
– What the Attorney-General has said seems to be reasonable enough. He proposes to look at the matter. Having made the point, 1 will not press with the amendment. I seek leave to withdraw the amendment.
– Is leave granted? There being no objection, leave is granted.
Clause agreed to.
Clauses 43 to 46 - by leave - taken together, and agreed to.
Clause 47 (Institution of Proceedings)
– I would like to speak shortly to this clause which deals with the institution of proceedings. The Opposition feels that the basis of this approach is quite unsatisfactory and that the proceedings cannot be dealt with in any expeditious way. The whole thing is bogged down and some real attention has to be paid to making the legislation work. We think that the only way it can be made to work is to reverse the onus. Otherwise it is almost impossible to visualise agreements or practices being dealt with in the framework of a Bill such as we are now discussing.
All the predictions we made at the time have proved to be correct. What the Commissioner is now saying and what experience has shown we predicted then. Irrespective of invalidation it would not have measured up. We were not getting very far at all with the legislation. I just overheard the Temporary Chairman saying to the Clerk of the Senate that it is not good enough. I do not know whether you intended to help me, Sir. but that is the point 1 am trying to make.
– My remark had no relation to the Bill.
– But it was a very pertinent remark. We feel that one of the delays in the institution of proceedings is the necessity for consultations contained in clause 48. Consultation has to take place before the institution of proceedings and it is a basis for delay. The whole provision is aimed at ineffectiveness. If the Government set out to introduce a trade practices law that would not work, it did a magnificent job. It has been said that some interests do not have much representation here in Parliament, but they seem to do pretty well with the non-legislation. Is this not a marvellous example? Nine years after Sir Garfield Barwick said that the Liberal Party’s philosophy was to stimulate competition, that certain trade practices were destroying the economy by producing inefficiency, softness and inflation an-.l should be dealt with, we are still talking about that philosophy.
The Attorney-General keeps on telling us: ‘You must not rush in with these amendments. We have to think about it all. We have to consider these problems such as whether monopolisation has to be covered.’ We are raising ordinary and simple points that are the basis of this type of legislation all over the world but the Attorney-General says: ‘Do not rush me. I must have time to think about it. I have to consider not only the drafting that has to be done but also the very principle of whether these things should be covered.’
We thought some of the provisions were elementary. We thought there was agreement on the need for laws against restrictive practices but the Attorney-General has said: ‘Aha, not only is it a holding thing but what you are suggesting is wrong.’ I think the people of this country have reached the stage where they want effective trade practices law. They are not as ignorant as they were about the kinds of things that are destroying the value of their money and really causing inflation. They will not be deflected by the attempts of the Government to blame everything on the poor wage earners who are just trying to keep up with rising costs and prices. Those prices have been fixed by persons or corporations which are not subjected to proper trade practices law.
I would hope that in relation to the institution of proceedings as provided for in clause 47 the onus will be completely reversed in the new legislation. Proceedings should be instituted by those who want to show that their agreements or practices are in the public interest and until they do that they should not be able to carry out those agreements or practices.
– I do not know whether Senator Murphy is seeking to have a vote against clauses 47 and 48 or whether he is simply expressing a view that he wishes to be noted. I think it ought to be said that when the Government introduced this legislation in 1965 such legislation was an innovation in this country. The Government was determined to make it work and to ensure that in its initial stages we were embarking upon something which was destructive of the instincts, incentives and objectives we wished to promote and preserve. It should be recognised that England introduced trade practices legislation of a broadly comparable character in 1956. England did not introduce resale price maintenance legislation until 1964 and it was not until 1966 that the Registrar there was in a position to look beyond the agreements which had been initially registered. He had to determine whether they fell into the gateways and to examine whether the people who were supposed to have registered agreements had done so. It is a long and time consuming process.
As I said earlier, it is an area in which by the passage of law you cannot change human nature. The most you can hope for is to create an environment in which the dynamics of competition can operate. This is the way in which the Government is approaching this problem. As has been reiterated on many occasions, whether the onus should be changed depends upon the review currently being undertaken. I do not think the people of Australia ought to have any doubts that the Government will take action if there are cases that warrant action. Resale price maintenance legislation was introduced in the form of an outright prohibition. Provision was made so that anyone wishing to sustain a case for resale price maintenance could apply for exemption, but until he proved to the satisfaction of the Tribunal that exemption should be granted there was no exemption. I point out that that represents probably the most drastic resale price maintenance legislation amongst countries which have enacted such legislation.
The Government will not rush into this legislation. It will not act until it has been thoroughly considered. I am a little surprised that Senator Murphy, representing a Party the main objective of which is the antithisis of all that is competitive and which would seek to bring everything into the monopoly which is nationalisation, should seek, without the consideration which we are endeavouring to give to this legislation, to have the Committee believe that his ideas on this legislation are better than those of the Government, which is committed to it. However, that might be introducing an unfortunate partisan note from which this debate has been singularly free.
Clause agreed to.
Clause 48 (Commissioner to consult parties with a view to avoiding proceedings).
– I indicate that we will oppose this clause, which provides for consultations. The legislative requirements as to consultations is just another method of delay. If the Commissioner thinks he should have consultations I suppose he can have them. In many circumstances involving litigation consultations may be carried on not only because proceedings are instituted but also during proceedings. However, in this provision it is put as a condition precedent that he shall not institute proceedings under clause 47 until he has first carried on or endeavoured to carry those consultations.
– Is it not common practice now in matrimonial and industrial legisation that there is compulsory prior consultation?
– This means that while all this is going on the Commissioner presumably thinks that something is against the public interest. One would think that he ought to be able to initiate proceedings as soon as it occurs to him that an agreement or practice is contrary to the public interest. Why should he have to sit around and talk to people before he goes to the Tribunal to get an order?
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Temporary Chairman do now leave the Chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly)
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
– I wish to make a short reference to the administration of the Department of Labour and National Service and to certain methods that are employed by that Department in regard to youths who register for national service and the follow-up medical examination for those who are ballotted for national service. I shall deal specifically with the plight of 2 apprentice boilermakers employed by the New South Wales Railways. These are 2 cases which administratively, to my way of thinking, could be tidied up. I preface my remarks by saying that the officers of the Department who handle national service registration in New South Wales have always been co-operative but the story that I will narrate indicates that the cases 1 raise and the problems arising therefrom are outside their competence to handle.
The first case I deal with is that of apprentice boilermaker M. L. Holmes. He is coming to the end of his apprenticeship. Because of certain contraction in employment opportunities, naturally he is looking at his future employment chances. Boilermakers are being recruited for work at Gove and other places in the Northern Territory. He was called up for national service in the last ballot. He is quite happy whichever way the ball bounces. He has been told - I have checked this by telephone - that he will have his medical in January or February. 1 understand that, in the meantime, the industrial officer of the firm which is recruiting boilermakers for the Northern Territory wants a clear cut indication of this boilermaker’s intentions. I communicated with the officers of the Department of Labour and National Service in Sydney who indicated that this medical examination would be undertaken within the next fortnight - They qualified this - I respect their position - by saying that some sort of grey area exists regarding the medical board from which decisions are retailed to those called up.
The simple point that I am making is this: National service has been in operation for quite a period. Whatever reservations I and my Party have regarding the overall principle of national service, the fact of the matter is that people who are prepared to obey call-up notice are entitled to have their call-up processed speedily. With due deference to the officers of the Department in Sydney, because 1 know that it will not be them but the medical board which causes the delay, 1 make the point to the Minister for Works (Senator Wright), who represents the Minister for Labour and National Service (Mr Lynch), that the pattern of apprenticeship or any other field at this time of the year is known to us and we are aware that youths in positions similar to Holmes will achieve adult journeyman status. Because the need to obtain other employment may arise, I believe that persons who have been called up by the Army should be informed more rapidly than is the position at present whether they are determined, by medical examination, to be medically fit for army service. This is the substance of the first case I mention. The officers of the Department will be conversant with it.
I turn to the second case which concerns an apprentice boilermaker by the name of Byrnes. He too works at the Chullora railways workshops. As my colleagues Senator Bishop and Senator Cavanagh who have had a lifetime in industrial affairs would know, many boys training in their apprenticeship must go to a capital city to complete their indenture. The home town of Byrnes is Bowraville in the electorate of Richmond on the north coast of New South Wales. The national service call-up notice for Byrnes went to his home at Bowraville. His mother wired him of his call-up and possibly he over-reacted. I use that word advisedly. He had already used his full quota of railway passes to go to his home. The result was that he lost 2 days pay because he returned to Bowraville foi his medical examination for national service purposes. He has put it to me very forcefully that he feels that he should not have had to incur that expense. I point out to Senator Wright that I have submitted a report on this case to the Minister for Labour and National Service.
I conclude by making these points: In the case of apprentice boilermaker Holmes and other boys who are on the threshold of achieving journeyman’s status in their trade, we should devise a method by which there is a much more speedy decision on whether they are medically fit for national service following their call-up. With deference to the co-operation that I have received from officers of the Department in Sydney, to whom I pay tribute, I feel that the Minister from his position of authority perhaps should put the spurs into the doctors concerned so that speedier medical decisions are forthcoming. Senator Wright would be the first to admit that he has often been impatient with people who do not accept the full impact of the law. The boy in the second case I have raised - I use the word again - over-reacted. He could have gone to a member of Parliament and said: I am not going back to Bowraville for my medical examination. Let the Department arrange an alternative medical examination for me in metropolitan Sydney’. He did not do that. He is an extremely conscientious boy, as I have pointed out. I repeat that the Minister for Labour and National Service has all the details of the second case. 1 respectfully ask the Minister to seek a prompt decision from his colleague. The last matter which I took up with Mr Lynch concerned a visit to a hostel in Victoria. I think Senator Poyser would know this hostel. The detailed answer that I received in this age of the computer should have come to me weeks earlier. I say again that I believe that apprentice boilermaker Byrnes is entitled to reimbursement of the 2 days pay that he lost - I do not know whether it should come from the Railway Department or the Department of Labour and National Service - because he very promptly obeyed the requirements of the National Service Act.
– In regard to the case of Byrnes, I understand from Senator Mulvihill that he has submitted the facts of this case to the Minister for Labour and National Service (Mr Lynch) for specific examination. I would not purport to say anything other than that he can expect an early prompt reply to his representations.
Regarding the general question of synchronising call-up with termination of apprenticeship to enable boys to know their future with certainty, I wish to tell the Senate that 4 national service intakes occur each year. These intakes involve examining 4.000 to 5,000 men 4 times a year at examinations conducted throughout Australia. As it is essential that only fit men be called up for national service, examinations must be conducted so that the final determination of fitness is related precisely and closely to the time of call-up. At the same time, every effort is made to examine such people as apprentices and students who will be seeking employment, and to advise them of their fitness or otherwise in sufficient time prior to their becoming available for employment for them to make the necessary arrangements with their prospective employers.
Medical examinations for apprentices and others who will be completing their apprenticeships or studies in time for the Army intake commencing 26th January 1972 began early in September 1971 and are proceeding. Examinations should be completed by the end of this month. A number of apprentices and students will have been informed already whether they are fit for call-up. Apprentices and students who do not complete their training in time for the January intake will be medically examined in January and February for the intake in April. This question having been raised, I thought it of advantage for the Senate to know the general practice so that, with respect to individual cases, honourable senators will be aware how to advise these boys in relation to this matter.
Question resolved in the affirmative.
Senate adjourned at 11.10 p.m.
Cite as: Australia, Senate, Debates, 9 November 1971, viewed 22 October 2017, <http://historichansard.net/senate/1971/19711109_senate_27_s50/>.