25th Parliament · 1st Session
Mr. SPEAKER (Hon. Sir John McLeay) took the chair at 10.30 a.m., and read prayers.
Mr. UREN presented a petition from certain electors of the Commonwealth praying that the Australian Government withdraw our troops from Vietnam, call for an immediate cessation of hostilities in Vietnam and call on all world leaders to call a conference of conflicting parties aimed at permanent peace and self-determination of the Vietnamese people based on the principles of the 1954 Geneva Accords.
Petition received and read.
– I preface a question to the Minister for Labour and National Service by saying that 1 have been informed by the Department of Immigration that migrant children under the age of 16 years living in Australia with their parents become Australian citizens when their parents are naturalised. However, upon reaching 21 years of age they then have the right under the Act to renounce such Australian citizenship. 1 ask the Minister: What is the position of a person in this category who is called up for national service training at 20 years of age while he is an Australian citizen under his parents’ domination if, on reaching his majority, he renounces his Australian citizenship? Is he then exempt from any further national service training? If not, does this not conflict with the Minister’s definite statement to the House on 17th November 1964 when he said quite emphatically
– Order! The honorable member is making his question far too long. I suggest that he direct his question.
– I am coming to the point. The Minister said that only native born subjects and naturalised migrants could, under the rules of international law, be liable for service in the armed forces.
– This problem has not been raised with me before. The honorable gentleman will realise that, according to his own description, some naturalised Australians born overseas would, in fact, if their birthday dates had come out in the ballot, have been called up for national service training already and would have served some of the period that is required under the National Service Act. As this question involves a legal problem I shall have my officers look at it with Crown law officers and I will let the honorable gentleman know the result.
– Can the
Minister for Health give the House any information concerning the alleged outbreak of blue tongue disease in Queensland? How was this alleged outbreak discovered? How was the illegal importation of semen from British Columbia made known to the authorities? What compensation is paid for slaughtered cattle? Will compensation be paid to the person who imported the semen? What is the penalty for importing semen of this kind? How long after the introduction of the semen was the importation made known to the authorities? Is it correct that blue tongue disease would be more disastrous in Australia than in any other country because of our high sheep population? Is it correct that a severe outbreak of blue tongue could destroy 40 per cent, or 50 per cent, of our sheep population?
– First of all I would like to make it quite clear that there is no outbreak of any major exotic disease in Queensland but precautions are being taken by the Queensland Government in relation to this matter. However, in view of the importance of the subject I intend to ask leave of the House to make a statement on it immediately after question time.
– My question is directed to the Minister for the Army. Has the Armalite rifle, which is being used by Australian servicemen in Vietnam, yet been evaluated by the Department of the Army? If so, what decision was reached? If the weapon has been accepted, will early arrangements be made for its production at the Commonwealth Small Arms Factory at Lithgow and thus assure an Australian supply of weapons required by our servicemen?
– I do not think I have anything further to add on this subject to what I have said in the House before. The weapon has been evaluated by us and by the United States of America. It is already in service for limited and particular purposes and the numbers involved in those roles certainly would not justify the arrangements that would be necessary for producing it in Australia. Evaluation is proceeding as to whether this particular weapon system might be given a wider note, but that evaluation will take some time. It is only when that evaluation is completed that consideration could be given to whether it would be a proposition to manufacture the weapon in Australia.
– I desire to ask the Minister for the Army a question relating to a question that I asked him last week concerning a new type of malaria virus which has broken out in Saigon amongst some United States troops. I had asked him what safeguards had been taken in regard to our own troops against any delayed attack from this new type of virus. He promised to make inquiries and advise the House. 1 ask: Has he completed those inquiries and, if so, would he inform the House of the result?
– Yes, I have made inquiries into this matter. It is true that in various parts of the world there have been reports over the last five years of a different strain of malaria which does not react to the normal suppressive drugs in use. This has occurred in one or two instances in Vietnam and a good deal of research is going on in relation to it. However, I am informed that there is no real cause for alarm in this respect. I am glad to be able to inform the honorable member that the casualty rate in respect of malaria among Australian troops in Vietnam has been very low. To be more precise, there have been six cases among the 1,500 Australian troops there, none of them due to the new strain.
He will be interested to know that, despite the advances in medical science, the methods of combating malaria which were developed during the Second World War and which place the greatest importance on malaria discipline in all its forms are still the main methods of combating this disease. The discipline relates not only to the taking of drugs but also to the wearing of protective clothing, the use of insect repellant, the use of mosquito nets and that sort of thing. The medical authorities believe that, despite the evidence of this new strain, this is still the best method of combating malaria. However, we are keeping in close touch with the situation. If it is necessary to do anything further in relation to this matter, we will do it.
– My question is directed to the Minister representing the Minister for Civil Aviation. Does the statement that was made yesterday by the Minister for Civil Aviation mean that the rebuilding of the Adelaide Airport has been abandoned in the next five year plan?
– I am sorry that I am not able to give the honorable member an answer to his question. This matter, of course, comes under the jurisdiction of the Minister for Civil Aviation. I will obtain a considered reply from him.
– Is the Minister for Trade and Industry aware of a campaign being mounted to destroy the wheat industry stabilisation plan? Can he say whether the Government is firmly of the view that this plan, which undoubtedly is of immense value to the wheat industry, is also in the public interest?
– I am aware that great publicity is being given by certain newspapers to writings by a lecturer at the University of Melbourne. He has been writing along these lines, to my knowledge, for about 14 or 15 years. His mission in life seems to be to try to damage the Australian wheat industry. I am sure that he will not succeed. The truth of the matter is that today Australian consumers buy their wheat more cheaply than do any other consumers in the world. Only two or three years ago the price of wheat was reduced by ls. 5d. a” bushel - a tremendous reduction. This emerged from the stabilisation plan. I know of no newspaper company or other enterprise that has reduced its price to a degree comparable with the reduction of price that the Australian wheat industry accorded on the basis of a plan proposed by the wheat growers themselves.
I am sure that people who attack the stabilisation plan forget the desperate misery of the 1930’s, the bankruptcy and misery of scores of thousands of Australian wheatgrowers who not only suffered desperately themselves but whose failure was a major contributing factor to the whole Australian depression. Because of the loss of exchange earnings the Prime Minister of the day had to appeal to the wheat growers to grow more wheat - not in their own interests, but in the interests of Australia - so that exchange might be earned and the progress of the country might continue. That is still the requirement of this country today.
The truth of the matter is that the stabilisation plan has given Australia a healthy wheat industry, which is an important sector of the Australian economy. Nothing in the history of this country has been of so great advantage to the Australian consumers as the wheat industry stabilisation plan. The wheat growers, under their own proposals, for years sold their wheat to Australian consumers at 7s. and 8s. a bushel although they were receiving for export wheat of the same quality 17s. and 18s. a bushel. They were out of pocket hundreds of millions of pounds in the interests of the Australian consumers. The balancing part of the bargain that they asked for was that, having paid out of their export earnings tens of millions of pounds into a stabilisation fund-
– The Minister-
– Honorable members opposite support this scheme and I ask them to help me to protect the Australian wheat industry - this great industry. The growers asked that, if their own funds should run out, the Australian taxpayers should come to the aid of the industry if export prices fell below cost of production. That is the position today. I have no hesitation in saying that it is the policy of this Government to sustain the wheat industry stabilisation plan in its present form and that it is in the interests of the Australian community, and particularly of the consumers in this country, that this plan be protected from those who seek to attack it and destroy our great wheat industry.
– My question is directed to the Minister for Shipping and Transport. I ask: What progress has been made by the Australian Coastal Shipping Commission towards reaching a decision on duplication of the Bass Strait shipping service now provided by the “Princess of Tasmania “?
– No final decision has been made inthis matter. The Australian Coastal Shipping Commission is examining plans and looking at possible designs and the like, but it has not yet reached any finality. As soon as a final decision is made I shall certainly notify this House and the Tasmanian Government.
– I wish to direct a question to the Treasurer. Has the right honorable gentleman seen a letter to the Editor of the “ Australian Financial Review “ which appeared in yesterday’s issue and which directed attention to the publicity among businesses and persons overseas that the South African authorities gave to their changeover to decimal currency? The letter also claimed that with the approach of C Day in Australia the Decimal Currency Board could have prepared a pamphlet to be sent to our overseas customers and suppliers so that they would understand the significance of invoices, prices and orders expressed in terms of Australian dollars without believing that Australia had become the 51st State of the United States of America. I ask: What steps have been taken by the Board to publicise the Australian changeover to decimal currency among interested parties overseas?
– I can assure the House that a good deal has been done not only by the Decimal Currency Board but also by other government instrumentalities, including in particular the Department of Trade and Industry, and the banks which have been notifying their clients overseas of the change. The Department of Trade and Industry has included in its publications, which go all round the world, considerable detail about the changeover. Bulk supplies of the publications issued by the Decimal Currency Board have been sent overseas and the film “ Dollar Bill “ will be screened in Europe and other parts of the world. I am assured that the banking system is making extensive contacts in this matter and I understand that the Export Development Council is working on the preparation and distribution of a pamphlet to disseminate information on the subject. I believe that by the time the changeover occurs circulation of information about it in other parts of the world will have been widespread.
– I ask the Acting Minister for Primary Industry a question supplementary to that asked by the honorable member for Riverina. Is the calculation of the cost of production of wheat based on the estimated average yield of 17 bushels per acre? Has the actual yield per acre increased in recent years until in 1964-65 it reached 20.9 bushels per acre? If the yield per acre has increased, was this fact taken into consideration when it was decided to increase the price under the stabilisation scheme by 7d. per bushel? As more than £40 million has been paid in subsidies to the wheat producers since 1960, will the Minister give consideration to the payment of a subsidy to flour millers with a view to preventing the suggested increase of 2d. per loaf in the price of bread, an increase which will impose a very great hardship on bread winners whose basic wage is pegged by industrial tribunals?
– In answer to the second part of the question, I think the Minister for Trade and Industry fully covered the point that any subsidy that might now be given to the industry is more than compensated by the concessions which were given in earlier years to the consumers on the home market. He mentioned also that today the home consumption price is lower than that in any other country. The other point raised by the honorable member relates to yield. The wheat index committee does take into consideration movements in costs and yields. The reason why the price was reduced by ls. 5d. per bushel in 1962-63 was that the yield had been taken into consideration. As a result of the reduction of ls, 5d. per bushel, the price of bread decreased by a id. per 21b. loaf.
– I ask the Prime Minister a question in his capacity as Acting Minister for External Affairs. It has been reported to me that certain schools throughout Victoria have been circulating to their pupils a pamphlet “Vietnam - Is it Truth we Want?” produced by the honorable member for Yarra and endorsed by the Australian Communist Party. The reason given for the circulation of this pamphlet is that it is the only material available on this question. Will the Prime Minister discuss this matter with the State Ministers for Education and see that official information and booklets are made available to schools for distribution to children so that their minds will not be subverted at an early age?
– A substantial pamphlet on the matter of Vietnam and our involvement has been issued by the Department of External Affairs and is being given as wide a circulation as possible. I suggested recently, and the suggestion has been adopted, that the pamphlet should go to all secondary schools for a start. If there are other avenues to which it might find its way I would be very glad to hear of them and very willing at all times to get in touch with the State Ministers about it.
– I address a question to the Attorney-General. As matrimonial causes legislation is now uniform throughout Australia, is he satisfied that State Evidence Acts satisfy all Commonwealth requirements as to the admissibility of evidence, especially where litigants are foreigners and the documents submitted as evidence are not original documents? What protection have Australian citizens against blackmail, perjury and conspiracy when sued by persons who are unable to read or write their own language, especially when documentary evidence which comes before a court is written in languages using iliacs such as Syriac or Arabic and is interpreted by foreigners whose qualifications as interpreters or as experts in the role in which they appear have not been corroborated?
Will the Minister look at this very important aspect of matrimonial causes to ensure that no loophole exists whereby Australian citizens can become the victims of avaricious foreigners as appears to be the case at present?
– The way in which the question is phrased would indicate to me that the honorable gentleman has some particular set of circumstances in mind. If he will be kind enough to make the particulars available to me I shall most certainly look at both the particular issue and the general issue and give him an answer. I must say, however, on the general issue, that I am not aware that there is any danger of the kind raised by the honorable gentleman. I shall be glad to look at the specific facts if he will refer them to me.
– I ask the Prime Minister whether he is in a position to say whether the Government has accepted the proposals for the provision of drought relief which have been put forward by the States of New South Wales and Queensland. Has the Government given consideration to the question of providing term loans to graziers who are affected by the drought?
– Inside the next few hours I shall be in communication with both the Government of New South Wales and the Government of Queensland in reply to proposals put forward by . them. I think it will be found that the reply of the Commonwealth will be extremely satisfactory to both Governments. I am not at liberty to state the terms of the reply at the moment. Following my usual practice, I want both Governments to see the terms before I announce them.
– I address a question to the Minister for Shipping and Transport. Is the Christmas-New Year period the most dangerous time for road fatalities and injuries? Has any Commonwealth-wide publicity campaign been planned to reduce the number of road accidents during the coming festive season? Will the Commonwealth Government’s part in this campaign be confined to the goodwill appeal by the Minis ter appearing in the December issue of the Australian Road Safety Council’s journal?
– It is true that the ChristmasNew Year period is one of the worst periods on the roads so far as human injuries are concerned. The Australian Road Safety Council, which conducts nation-wide campaigns from time to time, always sets up a campaign at that time of the year. I have no doubt it is doing so this year.
The honorable gentleman should be aware that the Commonwealth Government is represented on the Australian Road Safety Council and makes funds available. The use of those funds is directed by the Australian Road Safety Council, on which the States, as well as other bodies with a special interest in road transport, are represented.
– The question which I address to the Minister for Health is related to the same subject as that raised by the honorable member for Wannon. Would it not be desirable, without any breach of the very necessary quarantine regulations, to have some positive system of encouraging the importation into Australia of new strains of both plants and animals? Would it not be possible to use some small island as a staging point in a system such as this? Since this is a matter which affects very greatly the prosperity and development of the Australian rural economy, will the Minister consider the appointment of a select committee to inquire into the whole question of quarantine both to increase its effectiveness and to provide positive measures to ensure that desirable strains of both plants and animals will be introduced as freely as possible into Australia, consonant with quarantine safety?
– This matter is under continuous examination by the Commonwealth Government and the State Governments. The risks are too great to lift the existing quarantine regulations. I for one would not make any recommendation to that effect. A problem of great importance concerns the improvement of breeding stock. That matter does receive very careful consideration. At present arrangements can be make for the importation of semen from the United Kingdom and from New Zealand whereby, under properly controlled conditions, improvements in stock can be effected. However, the mab points that have been raised by the honorable member are well and truly under consideration now and on a continuing basis.
– I direct a question to the Minister for Health. Are claims for physiotherapy treatment allowable under the pensioner medical service and the national health scheme? Is there any evidence the Minister can submit indicating that a considerable number of doctors in this country carry out this form of treatment in their surgeries with unqualified staff and charge this treatment against the scheme as a consultation? If so, would not this illegal practice deprive many qualified physiotherapists of remunerative employment? Would it be correct to say that there are only 50 doctors in Melbourne qualified to give physiotherapy treatment? Would the Minister consider making claims for physiotherapy treatment allowable under the medical benefits scheme?
– Several problems have been raised by the honorable member. The first point is that in no circumstances would I interfere with medical treatment which is the responsibility of a doctor. Whatever treatment a doctor provides is his responsibility and is part of a contractual arrangement between him and his patient. If the Australian Physiotherapy Association feels that there is some breach of ethics in relation to medical treatment the way is open to the Association to discuss the matter with the Australian Medical Association. It is not a matter in which the Government can interfere. If there is some individual case that directly concerns the Government - for example, the treatment of a pensioner under the pensioner medical service - which the honorable member can bring forward, I will certainly see that it is examined. The question of the inclusion of physiotherapy and other paramedical services under the national health scheme is a matter of policy that can be considered only at the appropriate time.
– I address a question to the Minister for Trade and Industry. Will he set in train inquiries to confirm that when the Import Licensing Advisory Review Board was in existence an emphatic protest was received in a letter dated 9th May 1960 from a member of this House concerning the constitution of the Board, it being claimed that a member of the Board had an interest in a matter reviewed by it? With a view to assisting the deliberations of this House could the Minister say whether it is recorded that the then Attorney-General explicitly stated that the claim, if well founded, would represent a thorough breach of natural justice?
– I must confess that 1 have absolutely no memory whatever of any such incident. I will make inquiries.
– I ask the Prime Minister a question. When he replied to a question by the honorable member for Latrobe I found it difficult to hear exactly what he said, but I gathered that he indicated that the pamphlet on the Vietnam situation prepared by the Department of External Affairs will be made available for official distribution among the school children of this country. I do not hear the Prime Minister dissenting.
– I will answer the honorable member’s question when he puts it.
– I ask whether that impression is correct. In view of the widely held differences of opinion in Australia on the Vietnamese situation will the Prime Minister accord facilities to have the case against the Government’s attitude likewise circulated among school children?
– I am afraid the honorable member is quite right in saying that he did not hear me correctly. I said that the document prepared by the Department of External Affairs had been distributed, or was in course of being distributed, to a variety of bodies, including secondary schools. This means that the headmasters will get the documents. What they do with them or whether they ask for more will be up to them. This no doubt is what has happened in the case of the other pamphlet about which we heard a little earlier.
– One document has the official imprimatur of the Government.
– Of course the document issued by the Department of External Affairs has the official imprimatur of the Government and, as it happens, there is only one Government here.
– Did the Minister for Trade and Industry, in the course of his recent trade talks overseas, obtain an indication as to whether any of the Conference lines plan to operate modern general cargo container ships on the Australian run?
– I am aware that several of the United Kingdom and Continent Conference lines are currently investigating the possibilities of establishing a container service between Australia and Europe. In this regard the Department of Trade and Industry has offered every assistance.
– I ask the Minister for Labour and National Service a question. Is the container service referred to a few moments ago by the honorable member for Canning and the Minister for Trade and Industry an Australian invention? Is it expected that if the service is adopted it will save millions of pounds in wharf charges of various kinds? Will the adoption of the service mean that about 80 per cent, of waterside workers on the Australian coast will be displaced? If so, what steps does the Department of Labour and National Service propose taking to protect the interests of the workers who will be displaced by this latest advance in automation or will it be just a case of waiting to see what happens and leaving the waterside workers to fend for themselves?
– The answer to the first part of the question is that the container service is not peculiarly an Australian invention. It has been introduced on a large scale on the west coast of the United States. The service works effectively in the west coast system and in the Honolulu system and has led to a substantial reduction in costs and a large increase in the pay of longshoremen. As to the second part of the question, I do not think the use of containers and what is called off-wharf marshalling of cargoes will lead to a reduction of 80 per cent, in the work force on the Australian waterfront. I regard that figure as a gross exaggeration and one that could not be sustained by logical argument. As to the third part of the question, I have made it clear that the Government has agreed to an all-in conference on waterfront problems. One of those problems relates to the possible impact of automation and off-wharf loading on waterside labour. Two matters arise which have been placed on the agenda at the all-in conference. The first is consideration of a retirement pensions scheme. The second is what is termed redundancy, which includes consideration of a mechanisation fund. This will be receiving active consideration by the all-in conference on which the Government is represented.
– I ask a question of the Minister for Health. It is supplementary to the one asked by the honorable member for Mackellar. When can we expect an announcement of the results of the review of the quarantine regulations for plants and stock which the Minister told the honorable member for Mackellar was being undertaken at present?
– I did not say that a special review was being undertaken. What I said was that the matter was kept continually under review by the State and Commonwealth Governments. In other words it is a matter that we are looking at weekly or when some special reference is made. It is continually under review in that sense.
– I ask the Prime Minister a question. Since the Government has taken the novel step of sending to schools a pamphlet issued by the Department of External Affairs containing about a score of extracts from speeches made by the Minister for External Affairs and also extracts from three or four speeches made by the Prime Minister himself and by Senator
Gorton, will the Government extend the service by providing schools with a similar summary of speeches made in the Parliament on the subject of Vietnam by leaders of all the parties represented in the House? Will it also make as readily available copies of the two issues of the “Current Affairs Bulletin “ on this subject published in the last couple of months with the aid of Commonwealth Government subsidies?
– It is a most fascinating thought that we should pick out statements made by the Opposition on this matter. I would find it very difficult to discover one that had the slightest ring of conviction about it. We are frequently told that the Government’s views and the reasons for Australia’s participation in the conflict in Vietnam are not sufficiently well known. After all, we are the Government of the country and we have our responsibilities to the country. It is because of decisions of the Government that our troops are participating in Vietnam. We have, therefore, not only a right but also a duty to make known to the public the reasons for such participation, and these reasons are set out with considerable detail in the pamphlet referred to. The most effective way to have these matters made known to the people is not just to make a Press statement, which would be a considerably abbreviated account, but to arrange for the distribution of a complete document, as we have done, to such leading people as educationists, clergymen and the heads of various bodies, and also to various libraries. This is a discharge of what I regard as a clear duty on the part of the Government.
– My question is directed to the Treasurer. I refer to the recent arrangement whereby a charge is made by all banks on the unused amounts of overdrafts over a certain amount. I understand that this arrangement does not affect Government instrumentalities. Can the Treasurer tell me whether terminating and permanent building societies are liable to this extra charge? The Treasurer will appreciate, I am sure, that although building societies are not under Government control, they are co-operative societies operating under strict Government regulations.
– The decisions as to the categories of borrowers to be exempted from this charge were made by the trading banks themselves. The honorable gentleman has correctly said that Government authorities are being exempted from the charge. It is my understanding that terminating building societies - co-operative bodies - are also exempt. I would need to check, however, whether permanent building societies are similarly exempt. 1 shall see whether I can secure that information for the honorable member.
– With some trepidation I direct a question to the Minister for Trade and Industry. Has his attention been directed to a report calling for an end to the ridiculous situation in which Australia is only too pleased to trade with mainland China but still makes the empty gesture of withholding recognition? Does this indicate that future trade with mainland China is dependent upon diplomatic recognition? If not, why does a report to that effect appear in the publication “Muster”, the official organ of the Graziers Association of New South Wales?
– This is the first I have heard of any such report. I do not know its author or its authenticity. The position, as I have said quite clearly, is that the trade that Australia does with mainland China is in accordance with an agreement among all the Western powers. There are certain items of trade which the Western powers are prepared to sell to mainland China and there are certain items that Australia along with the other Western powers, is not prepared to sell to mainland China.
– The United States is not a party to the agreement to sell certain items.
– The United States is the only country, to my knowledge, that is not conducting any trade with mainland China. The other Western countries are acting as Australia is acting.
– by leave - Early in September a Mr. Gordon Burcher returned from
America bringing with him a vacuum flask containing 58 ampoules of cattle semen. On arrival at Sydney Airport he declared the vacuum flask to Customs Officers but not its contents. He took this semen to his farm at Mount Crosby, about 25 miles south west of Brisbane and over the last three weeks he has inseminated four cows with it. On 25 rh November he took three ampoules to the veterinary school at the University of Queensland where he asked a technician to tell him if the semen was still viable. On 26th November the Chief Quarantine Officer (Animals) at Brisbane was informed of this. He immediately confiscated all unused ampoules and quarantined the farm. After consultation with my Department he ordered destruction of all ruminants on Burcher’s farm, namely 21 cows and 13 calves.
The semen was obtained from a Government artificial insemination centre in British Columbia, Canada, which borders the United States of America. As blue tongue is widespread in the United States of America there is a possibility that the virus may have crossed into the neighbouring provinces of Canada. Blue tongue is a serious disease of sheep which is transmitted by midges of the genus Culicoides, hence it cannot be contained by isolation of infected animals. Cattle can be inapparent carriers of the virus and it is transmitted from them to sheep and other cattle by midges. There is no suspicion whatsoever that this semen contains foot and mouth disease virus as it is many years since foot and mouth disease has been present in North America.
I must point out that the Animal Quarantine Service is responsible for keeping blue tongue and other diseases of animals out of Australia but in the event of the entry of a disease, it is the responsibility of the State to deal with it. On Tuesday last the Director of Veterinary Hygiene of my Department convened a consultative committee of senior veterinary officials in Brisbane which recommended the slaughter of all ruminants within H miles of Burcher’s farm, the insecticide fogging of all midges in this area and the sealing off of the area for ruminant animals for two months after slaughter operations have been completed. This will involve the slaughter at abattoirs of approximately 600 or more animals. Any form of compensation will be considered by the Queensland Government. The Queensland Government and particularly the Queensland Minister for Primary Industries is to be commended on his prompt acceptance of these recommendations by the consultative committee and there is every reason to hope that any possible outbreak of disease will be averted.
This is a regrettable incident which demonstrates how the action of an individual can frustrate the efforts of the best quarantine precautions. The question of any legal action against Mr. Gordon Burcher is under consideration by the Commonwealth Government.
I present the following paper -
Animal Quarantine - Illegal importation of cattle semen - Ministerial Statement, 2nd December, 1965.
– by leave- My statement will be very brief. It would appear that a most serious breach of Customs regulations, if not quarantine regulations, has been committed in regard to the importation of this particular semen product. The precautions taken by the Queensland Government appear to have been admirable, but it does appear to be strange that there should have been, apparently, some defect in the Commonwealth Customs regulations which allowed a man to bring a product into the country in an ampoule by declaring only the ampoule and not its contents. That is how it appears to me from the way the Minister for Health (Mr. Swartz) explained the situation.
– It was in a vacuum flask.
– It would be a good thing if the honorable member were shrunk into a vacuum; he would be much more comfortable. If what the Minister has said is correct - if anybody can bring a product into this country in an ampoule, or anything at all in an ampoule, without declaring what the contents of the ampoule are - there appears to be a distinct weakness in the regulations and there is an urgent necessity to correct it. I think the Minister said that the ampoule was declared and not its contents.
– The vacuum flask.
– Well, the vacuum flask. I suppose a vacuum flask is an enlarged ampoule. If the honorable member is going to quibble about terminology and as to what a container should be called, that is quite irrelevant. The thing that is important is: Why were not the contents of the container declared? It is to be hoped that after this unfortunate incident the Minister will take - and I have no doubt that he will - precautions to see that this sort of thing does not happen again.
Motion (by Mr. Hulme) proposed -
That the House take note of the paper.
Debate (on motion by Mr. Wentworth) adjourned.
Motion (by Mr. Hulme) agreed to - - That the House, at its rising, adjourn until tomorrow at 9.30 a.m.
.- I move -
That, in respect of the Commonwealth Public Service, this House is of opinion that -
Female employees holding permanent appointment should be able to retain their appointment after marriage, if they so wish;
Married females should be eligible for appointment to permanent positions; and
Confinement leave should be available for female employees.
It was Emerson who wrote that one of the measures of a civilization was the status it accorded women. I am afraid that if this measure were to be applied to Australian society it would be found wanting. It is fairly obvious that the discrimination that we practise in Australia is something which should be deplored. I refer to the discrimination against women, particularly married women. There is a history in advanced countries of the western world that they quickly resort to the service of women, particularly married women, in times of peril in the economy, but when times return to normal they revert to their traditional discriminatory attitudes. Recently I came across a statement made by the late President Kennedy in 1961 when he appointed the Commission on the Status of Women in the
United States, which sums up the position pretty well. He said -
In every period of national emergency, women have served with distinction in widely varied capacities, but thereafter have been subject to treatment as a marginal group whose skills have been inadequately utilized.
It is because of an appreciation of this fact and the fact that in Australia discrimination is much more pronounced than in the United States - I will quote details to substantiate this view later - that this motion has been introduced into the House. The motion expresses the opinion, of course, that females in the permanent employ of the Commonwealth Public Service should, upon marriage, be eligible to continue in their employment if they wish. Secondly, the motion proposes that married women should be eligible for appointment to permanent positions in the Commonwealth Public Service - that is, that their applications should be considered. Any discrimination certainly should not occur on the basis of their sex. Thirdly, the proposal is that confinement leave should be available for female employees of the Commonwealth Public Service.
Honorable members will note that in the first and second part of the motion married women are specifically referred to and that in the third part the reference is to females. The reason for this is that in the enlightened age in which we live we should not discriminate unfairly or harshly against single girls who have the misfortune of having a confinement during their single status. There is precedent for this view. I will quote this precedent if I have time. In the United Kingdom the Public Service Act specifically provides that single girls will be entitled to confinement leave. But a rider is added that this leave will be available only on one occasion. Certainly, I feel that the morals of our society, stringent as they are against people who flout them, are more than sufficient punishment for a young girl who faces this misfortune without inflicting any harsher impediment.
I want to make four points as reference points before going further into this motion. The first of these relates to the policy of the Australian Labour Party as defined at the Federal Conference of the Party in Sydney this year, at which I had the great fortune to be a delegate. At page 33 of the official publication of the Federal Platform Constitution and Rules, as recently decided, the conference resolution in respect of this matter was stated as - 4: Employment of Women.
This is a pioneer, trail blazing approach by any political party to the rights of women in our community.
The motion before the House does not make any reference to equal pay for women in the Commonwealth Public Service. This was not an oversight. The Standing Orders of this House will not permit this, as a motion on equal pay for women in the Service has already been put forward once in this session. Standing Orders will not permit the Opposition to move a motion concerning equal pay although we subscribe wholeheartedly to the view that there should be equal pay for women. Indeed, I am intensely critical of the Commonwealth Government for the way it perpetuates what is virtually the sweated labour of women and discrimination against women on the basis of their sex. We need go no further than this Parliament to see an example of this. If one goes to the Commonwealth Parliamentary Library one obtains excellent service from the staff members there. But the raw thing for me, which I always experience on going to the library, is that the young ladies who work and serve there do just as good a job as the men - and it is a high standard performance all round - but receive less pay. The same thing applies to school teachers, social service workers and all women in the Commonwealth Public Service. There is a definite discrimination against women.
– It is a cheap labour government.
– As the honorable member for Newcastle says, this is a cheap labour government. References in the Public Service Act which are appropriate to this case are found in section 49 which states -
This bar was the subject of an investigation by the Committee of Inquiry into Public Service Recruitment, the Boyer Committee, seven years ago. Let me emphasise that this was seven years ago and no action has been taken by the Government. I do not intend to go into this matter fully. I think one of my colleagues will go into it. The recommendation of the Boyer Committee was that section 49 (1.) and section 49 (2.) should be repealed and replaced. The Committee stated in its report that this part should be -
We need married women in the work force in Australia. We certainly need women, and married women too. We have a small work force of 4 million people, in round figures. We can supplement this if we want to increase productivity, increase output per head of population and obtain better living standards. Immigration is one way by which we can do this but that involves costly services for people who come to Australia as migrants. These services must be set up as basic requirements in order to support these people with the bare minimum of convenience and comfort. We can improve technology by way of better educational facilities and so on in the community. But in that field the Government shows some reluctance to burst forth with progressive initiative. We can allocate resources but in this field the Government is reluctant. We saw what happened to the report of the Vernon Committee. But the best and readiest and cheapest pool of labour available in Australia is married women. There are no service costs involved in obtaining married women who are already in the community and are using established services.
I want to emphasise that I am not promoting an argument that married women should be pressured into coming into the work force; certainly not in relation to the Public Service or any other section of business in the community. What I am arguing is that it is necessary that we remove bars and impediments against these women which are discriminatory on the basis of sex and are against the progress of emancipation. At the same time, the Opposition also emphasises that the rights of women to work are those which are chosen freely and those which give them happiness and not those which force them to work against their will because of socio economic circumstances. The Minister at the table, the Minister for Labour and National Service (Mr. McMahon), in his heart supports, I believe, the view I am putting forward, although he might not be prepared to admit it because of Cabinet control. He has made a most important address entitled “ Tapping New Resources “ which is, I think, one of the best and most progressive addresses I have heard for some time from a member on the other side of the House. In that address he promoted the argument that we needed to encourage women into the work force. He also gave figures indicating how low the proportion of married women is in the work force compared to other countries. But there is discrimination in Australia connected with the employment of women and for the benefit of this exercise I will define some terminology. Discrimination is described in the “International Labour Review” of March 1962 in an article titled “ Discrimination in Employment or Occupation on the Basis of Marital Status.” The definition comes from the 1958 Convention of the I.L.O. “Discrimination (Employment and Occupations) Article”. The article states -
Article 1 of this Convention defines “ discrimination “ as “ any distinction, exclusion or preference . . which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation “;
It goes on to state -
The following interpretation of that definition appeared in the International Labour Office report of 1963 entitled “Women Workers in a Changing World “ -
Discrimination includes any distinction made on the basis of sex.
In Australia we do discriminate. That is undeniable. The “International Labour Review “ of April 1962 stated at page 369 -
It was reported with respect to Australia, Greece* and Korea that there were frequent indications in employment advertisements that married women were not sought.
The “International Labour Review” of March 1962 made this rather damaging statement about Australia at page 273 -
While legislation discriminating in general terms’ against the employment of married women is apparently very rare, there are a number of formal regulations barring or restricting the employment of married women in the public sector. These range from regulations with a very narrow scope (e.g. those in Portugal governing the employment of married women as nurses in civic hospitals and those in Italy relating to the employment of married women in psychiatric hospitals) to regulations of rather sweeping national scope (e.g. in Australia and in Ireland, barring or restricting the employment of married women throughout the regular established civil service).
Let us contrast that with the position in the Federal Republic of Germany, as set out at page 278 of the same publication. It states -
In a decision by the Federal Labour Court, dated 12 February 1960, it was held that married women are entitled to household and rent allowances where the husband’s earnings do not already include such elements in respect of the same household, by virtue of the fact that under tha Constitution a married woman has the same duty of support to her husband as her husband has to her. In a further decision of 2 June 1961 the Court held that the provision of a collective agreement restricting the payment of a household allowance to male employees was unconstitutional, and hence null and void, irrespective of the fact that the purpose of the restriction was to avoid double payment to the spouses. Finally, in a decision of IS December 1960 the provincial labour court of Bremen held that a woman who left her employment on marriage in order to join her husband in a different town did so for an “ important reason” within the meaning of the unemployment insurance law, and benefit could accordingly not be suspended on the ground that she voluntarily left employment.
So the Federal Republic of Germany is much more progressive than this country. After carrying out some research on this subject, I believe that we are in a socioeconomic backwater. The Government makes only a small contribution to the solution of socio-economic problems, but maintains that Australia is well up in the scio-economic scale of reform and is one of the most advanced countries in the world. Analysis clearly shows that the Government should be censured for its lack of initiative in this field. In fact, the Federal Government is not giving the lead in the Australian situation, as it should be given in the public sector. What has been done in this field seems to have been done in the private sector. The June 1965 issue of “ Personnel Practice Bulletin “ stated -
Change of Employment Status upon Marriage. In only six undertakings -
This was out of 40 undertakings - . . all either finance companies or semigovernment bodies, did the employment status of a woman change upon marriage.
Under the heading “ Vacation Leave “ it referred to special arrangements made by some sections of private enterprise to suit working mothers. It referred to special leave being provided in some cases to help working mothers to solve their domestic problems. Under the heading “Pregnancy and Employment” it stated that two of the 40 undertakings granted six months’ leave of absence without pay if it was requested. This is more than the Federal Government is prepared to do. It also stated -
In 13 of 23 undertakings known to have reemployed women shortly after the birth of their children, some preference had been given to individual workers. . , .
Now let me deal with the Commonwealth Public Service. I have obtained my information in this respect from the 41st report on the Public Service of the Commonwealth for the year 1964-65. The number of permanent female officers in the First to Fourth Divisions as at 30th June 1965 was 21,416, or 18 per cent, of the total number of permanent officers. There was not one female officer in the First Division and there was only one female officer in the Second Division. This state of affairs has persisted for some time. It is discrimination.
During the calendar year 1964 there were 1,613 female separations from the permanent staff of the Commonwealth Public Service because of the marriage bar, in a total of 5,154 female separations. So the separations because of the marriage bar represented 31 per cent, of the total number of female separations. That total number includes separations because of transfers or movements from one division to another. If we take into account the people who were actually pushed out of permanent employment in the Public Service because of their age and for other reasons, the percentage of female separations because of the marriage bar would be much higher. Admittedly, some of these women are re-employed on a temporary basis. But that is what we are arguing about. That is not good enough because, if a single woman occupies a position today, she is married tomorrow and returns next week to a temporary position, she may have to work under someone who was junior to her and is inferior to her in respect of capacity to perform duties.
I also discovered that the number of females who were separated from the permanent Public Service in 1964 because of the marriage bar represented 27 per cent, of the number of female appointments to the Third and Fourth Divisions of the Public Service. Of course, the Government does not appoint women to the First or Second Division. About one-quarter of the females that the Government appoints each year to permanent positions in the Third and Fourth Divisions make up for women who have been forced out of the permanent Public Service because of the marriage bar.
Let me refer now to what is being done in some other countries. In the United States there is a specific prohibition against discrimination against married women in respect of employment in the federal civil service. That prohibition was adopted by legislation in 1937. I quote the following from page 270 of the March 1962 “International Labour Review”, from which I have quoted already -
In the United States, for instance, the Classification Act of 1949, which establishes a comprehensive plan for the classification of positions and rates of compensation of civilian employees in the classified civil service, expressly provides that “ In the administration of this chapter, there shall be no discrimination with respect to any person, or with respect to the position held by any person, on account of sex, marital status, race, creed or colour “.
Australia is somewhat behind other countries in this progressive movement. In Canada the marriage bar in the federal civil service ceased in 1955. In the Netherlands it was removed in 1957. In the United Kingdom it was removed in 1946. In Israel the Employment Service Law of 1946 expressly prohibited discrimination on the basis of sex.
I quote once again from the “ International Labour Review “ in order to show that Australia not only is lagging behind other countries in the forward march of enlightened thinking in the world today but also is one of the few countries that retain the marriage bar. Yet the Government would have people believe that Australia is in the vanguard of the movement for socio-economic reform. The March 1962 issue stated at page 268 -
In a number of other countries, it was reported that dismissal of women workers on marriage was the common practice in the past - “the official rule” as one country put it - but that now this is the exception rather than the rule.
So Australia is an exception in this field of socio-economic reform. It is about time we did something on this matter.
Let me make some specific references to the United Kingdom. In 1919 the United Kingdom Parliament passed the Sex Disqualification (Removal) Act, which laid down that a person shall not be disqualified by sex or marriage from the exercise of any public function or from being appointed to or holding any civil or judicial office or post. Unfortunately, there were quite a number of gateways in that Act, which did not remove discrimination as it should have. Nevertheless, something was done in the United Kingdom in 1919. Here we are in 1965 and we are still discriminating against people. We have not even made a token effort in this field. I quote the following from the Estacode covering the British civil service -
Maternity leave. A temporary or unestablished woman civil servant may be allowed leave for a confinement (normally not less than two months nor more than three months) within her normal sick leave entitlement, if she produces a medical certificate. Leave beyond her normal entitlement or not covered by a medical certificate must be taken either as annual leave or as special leave without pay. She may also be advised by her department to take maternity leave as soon as either medical’ advice or other considerations suggest.
These things have been going on for a long time in the United Kingdom and they have been going on in other countries for some time. Yet this Government - I asked the Prime Minister (Sir Robert Menzies) a question on this matter - behaves as though this is something that presents problems of such magnitude as to be insurmountable. Its attitude is: We just cannot move except at the slowest possible pace. However, we must move quickly. I know that the Minister for Labour and National Service knows this in his own heart. That he believes this is indicated by a speech that he made on the tapping of labour resources. Concerning maternity leave, this code also provides -
An established woman civil servant may bo allowed two months’ leave on full pay for a confinement, reckoning against her normal sick leave entitlement. She may have further sick leave within her normal entitlement for as long as may be necessary, if she produces a medical certificate. Leave beyond two months which is not covered by a medical certificate must be taken either as annual leave or as special leave without pay.
A Department may advise an established woman civil servant to take maternity leave as soon as either medical advice or other considerations suggest. Sick leave in the early months of pregnancy, for any cause, should be treated as ordinary sick leave.
This is the point that I was making before. Concerning unmarried women who have a confinement impending, the code states -
In the case of unmarried women these rules do not interfere with a department’s discretion in disciplinary matters (especially if the woman concerned is on probation). Paid leave for confinement should not as a rule be allowed to an unmarried woman more than once.
The next provision is important. There is, under the heading “ Seniority “, reference to common seniority lists for men and women. Here the code provides -
Subject to any departmental Whitley Council agreement to the contrary, there should be common seniority lists for men and women who are employed side by side on similar duties and are considered together for leave and promition.
I am reading only some of the relevant provisions, because there are so many other things that I want to discuss in the limited time available to me. I come finally to continuity of privileges, in respect of which the code states -
A break in service of not more than six months immediately folllowing resignation on marriage will not involve forfeiture of established conditions of service as regards pay, provided that the break was not caused by the dismissal of the officer for misconduct or inefficiency and whether or not service is resumed in the same Department. On any subsequent break, or where the initial break exceeds six months, continuity privileges will not be retained.
– Where is this provided?
– In the United Kingdom. I now quote from the Code of Federal Regulations of the United States of America as at 1st January 1964, relating to the Civil Service in that country. Section 21.98 makes provision for maternity leave in these terms -
An officer, when pregnant, shall be relieved from her assigned duties at such time as may be determined to be in the interest of her health, and shall at that time be placed on annual leave. Upon the expiration of all annual leave with which she is credited she shall be granted such sick leave (not to exceed 90 days) as is determined to be necessary under the circumstances.
Then the section deals with a number of machinery matters. For the information of the House, I point out that in the Federal Civil Service in the United States equal pay was established in 1923. In 1963 legislation for equal pay for equal work in fields outside the Civil Service was put through the Congress. There are some exceptions in the breadth of coverage but, nevertheless, the basic concept has been legislated for. No such action has been taken by this Federal Parliament.
The United Nations Treaty Series of 1955 refers to the International Labour Organisation Convention Concerning Maternity Protection, 1952. Article 3 of the Convention states -
The Convention goes on to deal with the extension of this leave in case of illness and with some associated matters. The International Labour Organisation sought to get from countries ratifying this Convention a guarantee that women absent on maternity leave would not be dismissed. Provision concerning this is made in Article 6 of the Convention. The I.L.O. first dealt with a convention on maternity protection in 1919. We in this country have been remarkably reluctant to ratify conventions of this Organisation, particularly in fields that con cern women. Let me mention some conventions that we have not ratified. We have not ratified the Maternity Protection Convention, 1919, the Night Work (Women) Convention, 1919, or the Night Work (Women) Convention (Revised), 1934. But happy days: We managed to ratify the Underground Work (Women) Convention, 1935. We have not ratified the Night Work (Women) Convention (Revised), 1948, the Equal Remuneration Convention, 1951, the Social Security (Minimum Standards) Convention, 1952, the Maternity Protection Convention (Revised), 1952, the Plantations Convention, 1958, or the Discrimination (Employment and Occupation) Convention, 1958. All these are I.L.O. conventions of special concern to women. It seems, however, that we in Australia are not concerned about them.
The “International Labour Review” of March 1962, at page 270, deals with the subject of maternity leave. Here we are given examples of action taken in other countries. The following statement appears -
In Argentina, under the provisions of Law No. 12383 of August 1938, dismissal of staff by reason of marriage is prohibited in public and private undertakings. The same is true in Brazil under article 391 of the Consolidated Labour Laws which provide that marriage or pregnancy do not constitute valid reasons for termination of employment. In Sweden an Act was promulgated on 21 December 1945 (No. 844) to prohibit the dismissal of employees on the ground of marriage or pregnancy.
The publication goes on to mention the Union of Soviet Socialist Republics where refusal to accept pregnant women or nursing mothers for employment is prohibited and where violators of this prohibition are prosecuted under the appropriate provision of the relevant criminal code. That is a Socialist country. The passage in the journal concludes -
In a number of other countries there is a prohibition of dismissal during pregnancy and for a certain period thereafter going beyond the normally protected period of maternity leave.
We again are the odd ones out, as honorable members can see.
I have made some extracts from other articles that I have managed to discover in my researches on this subject. However, my time is running out and I shall be able to refer to them only briefly. There has been a radical change of attitude towards the encouragement of married women to work. Before the war in the United Kingdom married women were not encouraged to work as teachers. The situation has completely changed since the war. A parallel development has taken place in the United States. International Labour Organisation reports and social study surveys on the subject that I have read emphasise this point. There are a number of things that must be done to make work desirable for women so that they shall be happy to work and contented in their work. There must be arrangements for special time off for the feeding of infants and for shopping. There must be provision - the Minister will see this stated in the I.L.O. report “ Women Workers in a Changing World “ among others - for the retraining of married women to enable them to come back into the work force after they have raised their families. A woman who leaves the work force early in her 20’s and who comes back to it in her 40’s after she has raised her family has still about 20 years or one third of her working life to contribute her talents to a worthwhile job and to attain some sense of fulfilment at this stage in her life when emotionally she is delicately balanced. It is most important that we review our attitude to child care. We must provide more kindergartens and child minding centres so that mothers will know that their children are in the care and custody of safe hands.
We have heard repeated complaints about the falling birth rate in this country. We have been told that this is something to be concerned about. We have some people running a campaign against the oral contraceptive pill. But we have to face the fact that people are refusing to have families because of the pressures of their economic and social conditions. We have to make it desirable for people to have families. Kindergartens and child minding centres for working mothers will help to achieve this aim. We need a special committee to investigate the whole problem and to make recommendations. Very soon there ought to be employment of married women in the Public Service with the retention of their rights and a ceasing of discrimination against them. This is what we need. We need the kind of approach that President Kennedy proposed in his report on the Commission on the Status of Women in the
United States. We need a commission on the status of women in the Commonwealth of Australia so that there will be guide lines for the elimination of the traditional discrimination against women which is based solely on sex and not on commonsense.
– Is the motion seconded?
– I second the motion and reserve my right to speak.
– The honorable member for Oxley (Mr. Hayden) has given a comprehensive and, I think, intelligent review of the problems associated with the permanent employment of women in the Public Service. I compliment him for the contribution he has made. I think the House will realise that for at least the last 18 months, or perhaps even for two years, since we have had what can be described as a condition of over full employment in Australia, the Commonwealth Government has been attempting to persuade employers in manufacturing and other fields to attract women into their factories and establishments. The Commonwealth Government felt that the potential work force in the female sector of the economy was a valuable resource that could be tapped in the circumstances in which we found ourselves. I do not give the Commonwealth Government all the credit for what has been achieved, but at least we can say that due to economic factors, which would be the predominant ones, and the necessity to find additional avenues or means of employment, more than 57,000 married and single women were attracted into employment during the financial year 1964-65. That was a most valuable addition to our work force and if it had not taken place our growth in national product could not have proceeded at the rate at which it did.
I am very pleased to be able to state tli.it employers continually tell me that they find that women are not only a satisfactory source of employment but also are a stable source of employment in the kinds of activities in which they have been able to engage. We have been anxious to open up opportunities for women to go into new jobs in the Commonwealth Public Service.
The House will know from what has been said here recently that in the PostmasterGeneral’s Department, for example, as new electronic sorting equipment is being introduced, a decision has been made to enable women to move into this field and to release men for occupations which they would otherwise fill to go perhaps to more important or more difficult occupations and for women to move into the jobs which are more suited to them. This provides opportunities for employment. So it can be seen, both from the facts and from the statements that have been made on behalf of the Government by myself and my Department, that we are anxious to attract women into the work force.
The Government is anxious to give women an opportunity to get into jobs of many types that can become available, whether the job is manual, skilled, semiskilled, a prestige job or a profession - wherever it may be. I have been anxious, whenever it has been practicable to open up opportunities and to give the necessary inducements for women to become a permanent addition to the work force. Although we have been successful in attracting women into the work force in this way, I point out to the House that we have not been so successful as other countries. Hie percentage of women in our work force, particularly married women, is not comparable with the percentages that exist in other highly developed countries such as the United States of America, the United Kingdom, Canada and France.
I now come to what is the heart and substance of the motion that has been put before the House by the honorable member for Oxley. The honorable member touched briefly on the question of equal pay. I have nothing more to add on that subject than I have already put to the House. The honorable gentleman dealt with that subject briefly. As he said, it was not appropriate for him to raise it and I can add nothing more to the contribution which the Government has already made and which is recorded in “ Hansard “. As to this question of the employment of married women and the removal of the marriage bar, I should like the House to know that my Department and the Public Service Board have been carefully considering this problem for some time. The honorable gentleman should know that.
– I did not know that.
– In the statements that I have made to the House I have said that it has been done.
– The Minister is now trying to catch up.
– I am not trying to catch up. These questions have been considered by us on many occasions. Recently the Cabinet considered the problem of the employment of married women in the work force and it was decided that this whole problem, together with the implications involved in the permanent employment of married women, should be considered by a committee and referred back to the Government for decision. I refer there to implications not only so far as the Public Service is concerned and so far as repercussions in the Postmaster-General’s Department are involved but also the implications for private employment. So I can say to the honorable gentleman that this problem has recently been considered by the Cabinet and that it is under further active consideration. In fact Cabinet considered the problem on Tuesday morning.
– The Minister did not think about it until last night.
Order! The honorable member for Oxley will cease interjecting. I remind him that he is out of his place.
– I hope it will not be too long before the Government is able to give a decision.
– Last night was the first time that it was considered.
– When did Cabinet really consider it?
Order! The honorable member for Oxley has made his speech.
– As soon as the Government has made a decision it will be announced to the House, if it is sitting, and if the House is not sitting I will make the announcement as soon as I can. I want to assure the honorable member for Oxley-
– Is this committee in the Minister’s Department?
– I am encountering many interruptions when I am half way through a sentence. If honorable members opposite want to ask me questions at the end of my sentences I shall be only too happy to supply answers. In this case rudeness gets one nowhere. I ask the House to consider the three sub-headings raised by the honorable member for Oxley. The first was that female employees holding permanent appointment should be able to retain their employment after marriage, if they so wish. This is one of the problems that will be considered by the committee for final report to the Cabinet. His second heading was that married females should be eligible for employment in permanent positions. That also is implicit in what I have said and is a problem which already has been considered by the Government and will be further considered by the Government. It will be referred to the Government again for consideration when the report of the committee is available. His third main point was that confinement leave should be available for female employees. That is another important problem of an administrative nature that must be considered not only by the Public Service Board but also by the employing sectors of the Commonwealth Public Service, particularly the Postmaster-General’s Department, the Department of Supply and the Department of the Navy in their various establishments throughout Australia.
Having said that, I can make no further contribution at the moment. The facts as they have been outlined by the honorable gentleman are well known to us and have been presented to Cabinet. I do not say this in any sense of criticism. I assure him that all the facts that he has mentioned are well known to us.
– Why have not these matters been acted on before now? Why was nothing done about them?
Order! I warn the honorable member for Oxley that he will be dealt with if he does not cease interjecting. I remind him again that he is out of his place.
– There is no further contribution that I can make to the sensible discussion of this problem. Whilst I understand the difficulties of honorable members opposite who have gone to great trouble in order to prepare their speeches, I do not think a continuation of this debate could add anything useful to the discussion. I doubt whether it could add anything useful to the knowledge which is at present available to the Government and which is at present being considered.
.- At least I will say for the Minister for Labour and National Service (Mr. McMahon) that, for the first time in the ten years for which I have been here, he has made a clear statement of his position. He said he had no further contribution to make. This, of course, is the position in which we find his party and his Government today. Honorable members on this side would be interested to know when there was this deathbed repentance on the part of the Government. We would like to know when Cabinet decided to appoint a committee to look into this question.
I congratulate the honorable member for Oxley (Mr. Hayden) for having brought this issue before the Parliament. It is one that should be continuously before us. We are engaging in a debate that touches not only upon the status of women but also upon the status of the Commonwealth Parliament, its functions of leadership in the community and Australia’s role in the world at large. Let us take for a moment the promise by the Minister that the Government intends to appoint a committee to look into this matter. This is a Government of what one might call pragmatic procrastination - a government which adopts a policy of getting away with doing as little as possible for as long as possible. To support this I mention first the Committee of Inquiry into Public Service Recruitment, which was chaired by Sir Richard Boyer. Its report was presented by command on 19th February 1959 - six years ago - ‘and ordered to be printed on 26th November 1959. This Boyer report, which all honorable members ought to read and which the Minister ought to take to bed with him at night so that he may study it and decide whether it is time-
– Not in the next couple of weeks?
– He might well give some study to it in the near future. Instead of leaving the House the Minister should stay here and listen to the debate, which concerns his Department in particular. I suggest that he should read carefully pages 58 and 59 of the report, which relate to the employment of married women in the Commonwealth Public Service. For example, I remind him that paragraph 244 of that report reads -
We recommend, therefore, that sub-sections 1 and 2 of section 49 be repealed and replaced by a sub-section providing that married women shall be eligible for permanent or temporary employment in the Service on such terms and under such conditions as are prescribed.
I emphasise that this recommendation was made six years ago. The Committee was appointed some time before that. It addressed its letter to the Prime Minister (Sir Robert Menzies) in 1958. Twelve months later the report reached this Parliament. Since then there has been six years of no action. Now the Minister for Labour and National Service has the hide and brass to step into this Parliament and say that the Government intends to appoint a committee. Then he walks out of the House. I regard that as a personal insult.
Let us examine this question of committees appointed by the Government. I sat on one committee a couple of years ago. It was appointed to inquire into the conditions of the Aborigines at Arnhem Land. That committee submitted a unanimous recommendation. It was signed by the honorable member who now sits in this House as Minister for Territories (Mr. Barnes). I emphasise that this was a committee of the Parliament, yet its report was never implemented. In the other place a committee was appointed to inquire into the use of Australian productions in television programmes. It submitted a first’ class report which stimulated discussion and obtained the support of great numbers of the community. But there has been no action taken on it. Again, the Constitutional Review Committee which was appointed some eight or nine years ago, and which included the best brains - with certain exceptions, of course - that the Parliament had at its disposal, submitted a report which was in fact a blueprint for constitutional change. Now very slowly and reluctantly, several of the more minor recommendations contained in that Committee’s report are being implemented. This is the whole pattern of this Government’s record. I am a member of the Council of the National Library of Australia. In 1953, the Government said it proposed to appoint a committee to examine the structure of the National Library and the Parliamentary Library. Three years later, it actually appointed a committee. Twelve months after that, the committee submitted its report. Three years after that, a bill was submitted to this House. In that case, a simple administrative question was involved, yet it took seven years, from the time of making the public statement before any Parliamentary action was taken. In the face of all that evidence, I see in the Government’s promise to appoint another committee no possible hope for women in the Public Service of Australia.
The question before us is the simple one of the status of women. The Minister has said that he has no further contribution to make. I remind the House that he is part of the power of decision of this Government. He is one of the 12 members of the Cabinet. He represents 8i per cent, of the power of decision in Australia. He say3 he has nothing further to say.
We are not asking private employers to do anything; we are asking the Government to do something in its own field where there is no constitutional restriction whatsoever - a field in which the Commonwealth has absolute and unlimited authority to take the steps which were recommended to it six or seven years ago and which recent social attitudes make desirable.
I remind the House that this question has been the subject of discussion for a long, long while. I remind the House, too, that John Stuart Mill had this to say about the subjection of women 100 years ago, and that much of what he said then still applies even though a large measure of the legislative restriction on women has been removed -
The injudiciousness of parents, a youth’s own inexperience, or the absence of external opportunities for the congenial vocation, and their presence for an uncongenial, condemn numbers of men to pass their lives in doing one thing reluctantly and ill, when there are other things which they could have done well and happily. But on women this sentence is imposed by actual law, and by customs equivalent to law. What, in unelightened societies, colour, race, religion, or in the case of a conquered country, nationality, are to some men, sex is to all women; a peremptory exclusion from almost all honourable occupations, but either such as cannot bc fulfilled by others, or such as those others do not think worthy of their acceptance.
The following is a fitting conclusion to the quotation -
When we consider the positive evil caused to the disqualified half of the human race by their disqualification - first in the loss of the most inspiriting and elevating kind of personal enjoyment, and next in the weariness, disappointment, and profound dissatisfaction with life, which are so often the substitute for it; one feels that among all the lessons which mcn require for carrying on the struggle against the inevitable imperfections of their lot on earth, there is no lesson which they more need, than not to add to the evils which nature inflicts, by their jealous and prejudiced restrictions on one another.
The restrictions which the Public Service Act imposes upon the women who serve in the Commonwealth Public Service represent nothing less than the infliction of injustice. I submit that this debate is related to reveal important issues. The first is the wastage of human talent. The second is the question of national justice to one-half of the community - the denial of full employment opportunities for that half of the community, particularly in the Commonwealth Public Service. I believe that there has to be a more enlightened attitude towards people’s happiness; a greater realisation of the part that work plays in promoting the ordinary individual’s happiness.
Another issue involved is the general economic question of the number of people who may be more gainfully employed than they are at present. One of the great difficulties we face here is that Australia, which very early in its career as a nation, established that it was one of the more democratic communities on earth and one of the leaders in social attitudes and social legislation, is now seriously dragging its feet. The honorable member for Oxley has pointed this out. The Minister for Labour and National Service has left the House, but he must know that every commentator supports this view. For example, in the book “ Australian Wives Today “, published by Blackburn and Jackson, this summing up by Myrdal and Klein is quoted -
As a group, housewives today suffer from more social isolation and loss of purpose than any other social group, except, perhaps, the old.
Again, in the book “ Women in Australia “, by Norman MacKenzie the following statement by this Government to the International Labour Organisation in 1957 is published -
Questions or discussion on the needs of women workers with family responsibilities frequently provoke hostility, the view being that the provision of these services would only encourage mothers to work unnecessarily and neglect their home and children.
An officer of one Government Department said -
Politically, this is a hot potato and we do not usually wish to say anything about it.
Another official of a State department had this to say when referring to one of the social services -
Working mothers would come very low on the list of priorities.
If we turn to the international statements made by this Government we find that in every instance procrastination has been the order of the day. This Government has continually engaged in passing the buck on to private employers or seeking to have the matter put on the agenda for some further meeting. For example, when dealing with the question of part time employment, which I think is very important so far as married women are concerned, we find this statement in the publication “Women Workers in a Changing World “ published by the International Labour Office in 1964, after the question had been referred to various governments of the world -
Two Governments (Australia and Belgium) in their general observations to this section of the questionnaire, point out that part-time employment is not of concern only to women workers with family responsibilities. The Government of Australia does not think, therefore, that this question can be dealt with satisfactorily in this limited context.
In other words, if there is a way of fobbing it off in the Parliament by appointing a committee or of fobbing it off at an international conference by saying that it is the subject for another session, then this Government will sieze upon it. Australia is not, as it ought to be, one of the world’s social leaders in this and in many other fields. As the honorable member for Oxley pointed out, we administer a very large Public Service. The most recent report of the Commonwealth Public Service Board indicates that there are 118,351 permanent employees in the Public Service, 15,538 temporary employees and 48,800 exempt employees. Let us consider the permanent employees - and we are interested in permanent careers for people. There are 96,935 male and 21,416 female permanent employees. I think it is worth reminding this all-male audience how significantly small is the contribution that women are able to make in the Commonwealth Public Service. Of course, they suffer from one simple disability - they will go and marry men. In the First Division of the Public Service there are 25 permanent males and no women; in the Second Division, 554 males and 1 woman; in the Third Division, 37,976 males and 3,341 females. In some of the other Divisions where we need temporary employees or cheap labour, it is the women who are called to the colours. I believe this is a serious matter for the Commonwealth.
This Parliament should be setting standards for others to follow. We ought not to be pleading with private employers, writing letters to the editors of newspapers or sending circulars to schools; we ought to be establishing policies and principles and carrying them out in the Public Service field, which is solely our domain. I was stimulated in my thinking by a statement the Minister made not long ago. He said - lt seems ridiculous that we should be short of labour in many fields of traditionally male effort while females, if permitted and encouraged to do so, could fill some of the gaps quite adequately.
I should have thought that he would have used the 81 per cent, of power that he possesses as a Cabinet Minister so as to pui himself in the forefront of this battle and to see that the necessary measures are carried out. There are two features in this matter. First, the Commonwealth has the function of leadership in the social role that a government can play in Australia. In the political treatment of Australia’s resources it has an important social dynamic at its disposal. unfortunately, this lies latent most of the time, and we have the archaic and almost reactionary attitudes expressed by the Minister for Labour and National Service, who is at the helm in this matte:. The second feature is, of course, the sheer size of the number of people for whom we have administrative responsibility. I urge honorable members to think of the general disabilities that prevail with women. Consider the membership of this House. It contains 124 male members - not one woman. I wonder, too, why there is no woman officer of the House.
– Women will not vote for women. This has been proved.
– The honorable member for Mallee claims that women will not vote for women.
– He takes the Old Testament attitude that a woman’s function is to stand breast high amid the corn.
– That is so. I represent an electorate that under another name, before a redistribution occurred, was represented by Mrs. Doris Blackburn for three years. She was elected by the constituents as an Independent - a woman - against all practice at that time. I do not think there is anything in the claim of the honorable member for Mallee. People will accept equality of the sexes. I remind honorable members of the serious disabilities that prevail. If the honorable member for Mallee would examine statistics relating to examinations at matriculation level in his own State he would see that girls frequently perform better than boys. For instance, in agricultural science 66.66 per cent, of the girls passed but only 52.63 per cent, of the boys. Obviously the people in the Mallee electorate might do better if they turned their farms over to women. In arts, 77.48 per cent, of the girls passed but only 60.85 per cent, of the boys. All of these statistics are available and I am quite sure the honorable member for Mallee is familiar with them, because he has indicated on occasions that he studies such tables.
Consider the position in Australian universities. In 1964 there were 56,424 male students and 19,764 female students in our universities. What happened to the other 36,600 girls who did not get the opportunity to attend university, principally because of their sex? I confess that I think much of this lack of opportunities in specific fields for girls comes from the fact that they have fewer opportunities all along the line. The general attitude is: What is the use of sending girls to university? First of all, they will get married. If they do get married, they will be excluded from the advantages of permanent employment in the Commonwealth Public Service.
It is unlikely that a woman will become Clerk of the House. It is unlikely that a woman will become head of a Commonwealth department. On the other hand, it is quite all right for a woman to become monarch and have adulation bestowed upon her. It is possible to have a woman elected to this House. She would enjoy all the benefits that we are seeking for other women today. She could marry and remain in her job, and she could have confinement leave. These conditions, of course, would apply to the distinguished South Australian female who was recently appointed a judge of the South Australian Supreme Court. In some areas we do apply the general principle of equality, but the extent of application is small, and few women attain equality. There is a tremendous wastage of female talent in Australia. Statistics show that women are just as competent as men in most fields. I should say that in over 90 per cent, of the fields of human endeavour they would do as well as males. We are exhibiting great folly in excluding them from those fields.
I admit that a social disability applies as a result of domestic and social attitudes in the community. I represent an industrial area. I have referred to this matter before, but I think it is wise to remind members how social attitudes prevent girls from reaching the top in even our secondary school system. For instance, at the Coburg High School this year there are 318 boys and 292 girls, but there are only 24 girls in the matriculation class compared with 48 boys. Although there is virtually equality of numbers in the community, high school boys get twice as much chance as girls of reaching the top. At university, boys have three times the opportunity. In the Commonwealth Public Service marriage altogether excludes females from permanent employment. The debate this morning is a challenge to the people of Australia and to this Government. The discrimination against females is continually commented upon by people who think, read and study. In the “Australian Quarterly” published in September appears an article by Messrs. R. L.
Smyth and A. Petridis in which, after talking about the very objectives that the Opposition has placed before the Parliament this morning, the authors say -
These are all perfectly reasonable social and economic objectives. Other countries have already achieved what Australia must attempt. Let us hope that Australia will accept the challenge and make good use of the opportunities offered by an indigenous and unexploited labour supply.
I remind the House that in the world at large we have an important role to play. The subjection of women, as mentioned by John Stuart Mill, is a real factor to our near north. Although Indonesia has shown some substantial advances in appointing women to high offices, and although this has also happened in some parts of India and elsewhere, in the Moslem areas of the world generally a tremendous body of humanity is excluded on religious and social grounds from equality with men and from enjoying the opportunities that are available to men. We in this Parliament should be establishing principles and policies that are an example to the rest of the world and an example to the Australian employer. We should encourage the women of this country to play the kind of role we know they can play. For too long have we exploited the capacity of females to perform certain tasks. We do not exclude them from high positions in honorary and voluntary organisations. What we ask is that in the most important functional unit of Australian administration - the Commonwealth Public Service - women will get an equal go with men. We hope that eventually even the honorable member for Mallee will step into this field as a democrat, thinker and good Australian in his attitudes.
– I think the Parliament this morning witnessed an attitude at the level of the Government, as transmitted to this chamber by the Minister for Labour and National Service (Mr. McMahon), that must cause everybody to think deeply about how much longer this Parliament will tolerate this Government setting up committees to examine most of the matters on which it does not intend to take any action. I congratulate the honorable member for Oxley (Mr. Hayden) on bringing this matter before the Parliament. We are not considering the issue referred to by the Minister for Labour and National Service, who this morning made a statement to the Parliament; we are not considering the general matter of the employment of women in industry in Australia. If I understood the Minister correctly, he stated that Cabinet had decided to appoint a committee to inquire into the employment of women generally. This will serve only to cloud the issue which is whether women should be employed in the Commonwealth Public Service on a permanent basis and whether they should be retained in employment after marriage. The Minister clouded this issue from the start. He spoke about employment generally of women in outside industry. He referred to other matters. He said that employers had not indicated to him that women are more suitable in industry than are men. He said that the Government had decided to go ahead and employ women on the new electronic sorting systems being used in the Postmaster-General’s Department.
I do not want to raise at this stage the matter of the employment of women on this work, but in my view the Minister should have made the position clear as regards the Government’s policy on the employment of women in the Public Service. This is what we are discussing. I would have thought that the Minister, or even the Prime Minister (Sir Robert Menzies), would have had more to say on this matter instead of being content to say that the Government will set up one more committee. I will have more to say later about the recommendations of a former committee which inquired into the Public Service. If the Minister and the Government are sincere they should see that the Commonwealth Public Service sets an example to industry in the employment of women. The Government should follow the example set by older countries where women take their real place in society and industry alongside men and where they enjoy equal rights with men at every level.
The latest annual report of the Public Service Board shows that at 30th June 1965 there were 118,351 permanent officers. The Board reports -
A very high level of employment existed in the economy as a whole and this caused difficulties, particularly for those with skills, in the recruitment and retention of staff.
The report then deals with the matter of staff leaving the Service. It shows that in 1964 the separation rate was 10.7 per cent., compared with 9.1 per cent, in the preceding year. The Board reports -
The increase is largely accounted for by an increase in resignations from the Fourth Division.
There is not one word in the report about resignations from the Fourth Division being due to girls getting married. Six years ago the Government had a recommendation from a committee relating to the employment of married women in the Public Service. The Minister’s speech this morning was an insult to this chamber and to the intelligence of honorable members. Women in the Public Service should know that at no stage in the course of this debate today have more than six Government supporters been in the chamber. The women of the Public Service should be aware of the attitude of the Government, whose supporters are sitting pretty, caring nothing for a career industry which falls directly within the responsibility of this Parliament.
I turn now to the report of the Superannuation Board. Even the honorable member for Mallee (Mr. Turnbull) must be impressed by this report.
– Order! As it is now two hours after the time fixed for the meeting of the House, the debate on the motion is interrupted.
Motion (by Mr. Barnes) agreed to -
That the time for the discussion of notices be extended to 12.45 p.m.
– 1 thank the Minister and the House. I wonder how many members opposite have perused the latest report of the Superannuation Board. The report shows that at present 666 retired female employees of the Public Service are in receipt of pensions because they reached maximum age. In addition 557 women have been retired through invalidity and are living in isolation. Surely those figures are something for the Government to ponder over. We call ourselves a democratic free country, but we condemn 666 women to live a life of isolation due to the operations of a section of an act which a committee has recommended should be removed. The 557 women who have been invalided out of the Service have been condemned to a life of isolation. We are not dealing with an outside industry; we are dealing with a career industry. Surely we should consider the value of a woman who has served in the Public Service from age 18 to age 24 or age 25. Just when she reaches a stage of efficiency she is forced to make the vital decision whether to spend the rest of her life in isolation and remain in the Service or whether to marry and resign. The provision that married women must resign is the most inhuman provision that I have seen in any legislation in this or any other country.
The report of the committee set up in 1958 by the Prime Minister was presented to the Parliament on 19th February 1959. In its report the committee stated -
Section 49 was inserted in the Act in 1922, replacing a similar section in the 1902 Act. The Committee considers that sub-sections (1) and (2) are now anachronistic and that limitation upon the employment of married women, rather than such employment itself, should be exceptional. However, we recognize that the regular employment of married women would entail the extension of certain special privileges, such as confinement leave. The latter is already in force in the case of temporary employees. We also concede that special circumstances and possible changes in economic conditions might make it desirable, as a matter of policy, to limit the employment of married women at certain times and under certain circumstances.
Section 49 of the Public Service Act is a cold-blooded section. It reads -
No married woman shall be eligible for employment, either permanently or temporarily, in the Commonwealth Service unless the Board certifies
The effect of this section is to make every woman in the Public Service decide at age 24 or age 25 whether she will live her life as a single woman and remain in the Service or marry and resign from the Service. All that the Government proposes to do in the matter is set up another committee to inquire not merely into employment of women in the Public Service but into their employment in private enterprise outside the framework of the Government.
I do not know whether the Cabinet gave consideration to a question asked by the Deputy Leader of the Opposition (Mr. Whitlam) of the Prime Minister the answer to which appeared in “ Hansard “ of 22nd September 1965. The Deputy Leader of the Opposition asked what the Prime Minister proposed to do about the recommendations of the Boyer Committee. The Prime Minister said that as to the recommendations in paragraphs 244 and 247 of the Boyer Committee’s report, which had to do with section 49 of the Act which I have just read, it was “ not proposed at present to vary existing arrangements.” Although a committee set up by the Prime Minister himself had recommended that something be done about the very matter that has been raised by the honorable member for Oxley, we found the Prime Minister telling not just the Deputy Leader of the Opposition but the Parliament itself, as late as September 1965, that he did not propose to do anything about the recommendation at that stage. If the Minister for Labour and National Service thinks that he can hoodwink the female members of the Commonwealth Public Service, who represent 25 per cent, of the total number of persons in the Public Service, I suggest that after this morning he will have another think coming. I can assure him that great bitterness is felt by female members of the Commonwealth Public Service who are debarred from continuing their careers if they marry, not necessarily when they are young but at any time of their lives at all. If the Government is concerned about employing married women permanently one would think that it might consider lifting the bar to marriage at the age of, say, 50, so that at least women who had attained that age would have a chance of marrying and still remaining in the Public Service. But this Government will not go even that far. It tells its female employees that they must remain single all their lives if they wish to continue their careers in the Public Service. If the Government had not had this report six years ago the argument of the honorable member for Oxley may not have been so strong.
I have been surprised not only to find no more than six Government supporters in the House during this debate, but also to discover how uninterested are honorable members opposite in the question of permanent female employment in the Commonwealth Public Service. Honorable members opposite are just not interested. They do not want to speak on the subject. The Minister himself said that there is nothing to be said about it. For this reason we propose to find out how genuine are the Minister and other members of the Government, and we propose to discover how sincere are honorable members opposite. We will divide the House and see whether they will, by their votes, direct the Cabinet to do something about this matter. I move, therefore -
That the question be now put.
Question put. The House divided. (Mr. Speaker- Hon. Sir John McLeay.)
Majority . . . . 15
Question so resolved in the negative.
.- Mr. Speaker–
– Order! As it is now 12.45 p.m., the time allotted for precedence of general business has expired. The honorable member for Mallee will have leave to continue his speech when this debate is resumed. The resumption of the debate will be made an order of the day under “ General Business “ for the next day of sitting.
Sitting suspended from 12.45 to 2.15 p.m.
Assent to the following Bills reported -
Customs Tariff Bill (No. 2) 1965.
Customs Bill (No. 2) 1965.
Excise Tariff Bill 1965.
Bill presented by Mr. Barnes, and read a first time.
– I move -
That the Bill be now read a second time.
This Bill makes new provision for the government of the island of Nauru, pursuant to an agreement reached between the three administering governments and the representatives of the Nauruan people. It proposes the establishment of a Legislative Council, with a majority of Nauruan members, and an Executive Council, to include Nauruan members. This Parliament has not previously provided a detailed scheme of government for Nauru. The Territory is administered jointly by Australia, Great Britain and New Zealand, which in 1947 entered into an agreement with the United Nations to place the Territory under the international trusteeship system.
The administration of the Territory is at present vested in an Administrator who is appointed in accordance with agreements made between the three partner governments in 1919 and 1932. Those agreements authorise the Administrator to make ordinances for the peace, order and good government of the island, subject to confirmation or disallowance by the Governor-General. There has been a progressive increase in participation by the Nauruan people in the activities of the Administration of the Territory which affect them. In 1951 an elected Nauru Local Government Council replaced the former Council of Chiefs. The Nauru
Local Government Council has steadily expanded its activities and its influence in Nauruan affairs. It manages and operates a housing scheme, sells and distributes electricity, conducts a general store through the Nauru Co-operative Society and administers a social services scheme. As well as these and other activities of an executive nature, the Council has wide rule-making powers, is consulted by the Administrator before ordinances are made and has a meeting with the Administrator at least once each month at which matters of interest and concern to the Nauruan community are raised and discussed.
The members of the Nauru Local Government Council have felt for some time that the next step in constitutional development for the Territory should be the establishment of a Legislative Council through which their present consultative role in the legislative process would be exchanged for one of direct participation. The governments have accepted this view and have agreed that the appropriate way of establishing the new constitutional arrangements would be for the Australian Parliament to pass an act which would provide the whole scheme of government for the Territory. The agreement reached by the three governments is set out in the Second Schedule to the Bill. It does not, however, represent the views of the governments only.
In June last it was agreed between the governments and the Nauru Local Government Council that a Legislative Council for Nauru should be established by January 1966. An advisory committee of Nauruan representatives and Australian officials subsequently made a detailed examination of the changes that should be made. The agreement set out in the Second Schedule to the Bill, and the Bill itself are in accordance with the recommendations of that committee. Parliament is being asked, at this late stage of the present sittings, to pass the Bill so that the Legislative Council can be inaugurated on 31st January 1966 to meet the strong wishes of the Nauruan people. As I have indicated, the Bill provides for a complete scheme of government. Provisions for the appointment of an Administrator by the Governor-General are similar to those for other Territories.
It is proposed that the Legislative Council will consist of the Administrator, nine members elected from amongst the Nauruan community and five official members, who will normally be officers of the Administration. Detailed provisions for the election of members will be made by ordinance. The Bill provides for customary disqualifications for membership of a legislative body, except that not all employees of the Public Service are disqualified - only heads of departments. In the circumstances of Nauru, disqualification of all public servants would mean disqualifying a relatively high proportion of the electorate. The Legislative Council is to have a general legislative power except with respect to defence, external affairs and matters associated with the phosphate industry. At this stage the responsibility for the defence of the Territory and for conduct of its external affairs remains with the administering authority. Matters associated with the phosphate industry have been excluded from the powers of the Legislative Council with the agreement of the Nauruan representatives. The elected members of the Legislative Council are being drawn from and elected by the Nauruan community only. The Nauruan community numbers approximately 2,814. In addition, approximately 2,827 other people live at Nauru, most of whom are associated with the phosphate industry. Nauruan representatives consult regularly with the British Phosphate Commissioners on matters of concern to them; but the division of legislative powers provided for in the Bill recognises the present arrangements for the industry.
Ordinances passed by the Legislative Council are subject to assent and disallowance under provisions generally similar to those which apply in respect of the Northern Territory and Papua and New Guinea. The Administrator has power to assent or withhold assent or to reserve ordinances for the Governor-General’s consideration except that he must reserve ordinances on several subjects. If an ordinance is assented to by the Administrator the Governor-General has power to disallow it within six months. The Governor-General may recommend amendments arising out of his consideration of ordinances passed by the Legislative Council.
In respect of defence, internal security and the maintenance of peace and order, external affairs and matters associated with the phosphate industry the GovernorGeneral is to have power to pass ordinances. If an ordinance made by the GovernorGeneral is inconsistent with an ordinance made by the Legislative Council the ordinance made by the Governor-General prevails. Ordinances made by the GovernorGeneral are to be tabled in each House of the Parliament and will be subject to disallowance by resolution of either House. In the event that assent to an ordinance made by the Legislative Council is withheld, or such an ordinance is disallowed, the Minister is required to lay before each House of the Parliament a statement of reasons for that action. Participation by Nauruan representatives in the executive government is provided for by the establishment of an Executive Council to consist of the Administrator, two elected members of the Legislative Council and two official members of Legislative Council. Functions may be conferred on the Executive Council by ordinance, and in addition, it is to advise the Administrator On any matter referred to it by him.
The provisions of the Bill relating to the judicial system contained in Part VII of the Bill do not introduce any major changes in the courts structure at present established for the Territory by ordinance. That structure consists of a Court of Appeal constituted by a judge, a Central Court which can be constituted by either a judge or by three magistrates and a District Court constituted by magistrates. The provision made in the Bill for an appeal to the High Court of Australia on decisions of the Court of Appeal is a new provision as is also the provision that the Central Court must be constituted by a judge if it is hearing a question relating to the qualification of a member of the Legislative Council or a matter involving interpretation of the Act. Part VIII of the Bill contains a number of miscellaneous provisions. Existing laws are continued. It is made clear that Commonwealth acts apply to Nauru only if they contain express provision to that effect or are applied to Nauru by proclamation made by the Governor-General.
There is provision for the GovernorGeneral to exercise powers of pardon, remission or commutation in the case of death sentences and for the Administrator to exercise these powers in other cases. Usual provisions are made for the control of expenditure of public moneys, including a requirement that appropriation ordinances must be recommended by message of the Administrator to the Legislative Council, and for audit of the accounts of the Territory. The Administrator’s salary will be a direct charge on the revenue. I might mention that there is no direct taxation in Nauru. Most of the public revenue of the Territory is derived by a charge on the phosphate industry for the costs of administration.
The establishment of a legislature for Nauru and an Executive Council will be a notable step forward. We in this Parliament will wish the new legislative body well. You, Mr. Speaker, and Mr. President in another place, have kindly put arrangements in train for the occasion to be marked by the presentation to the new legislature of a President’s Chair. I am sure that this expression of goodwill will be greatly appreciated. It is satisfying to be able to place before the House proposals which have been agreed to by the representatives of the Nauruan people. This does not represent the end of constitutional development. Experience of the Legislative Council and of the Executive Council will be watched with great interest and with sympathy and at the appropriate time further discussions will take place regarding the possibility of further movement towards greater Nauruan responsibility in the affairs of the island. I commend the Bill to the House.
Debate (on motion by Mr. Daly) adjourned.
Bill presented by Mr. Opperman, and read a first time.
– I move -
That the Bill be now read a second time.
Honorable members will recall that the Temple Society Trust Fund Act 1949 was introduced in this Parliament by the present Leader of the Opposition (Mr. Calwell). I pay tribute to him for his initiative in providing a legal basis for the establishment and administration of a Fund, which has made it possible for the Commonwealth Government to receive and disburse certain moneys on behalf of a group of non-Jewish settlers from Palestine usually referred to as Templars, or members of the Temple Society. The history and background of these people, who are making their own distinctive contribution as members of the Australian community, are to be found in the second reading speech which the honorable member for Melbourne made when the original Bill was presented.
The purpose of the present Bill is to revise the Temple Society Trust Fund Act of 1949, so that, without any change of principle or policy, the Fund may be administered in the light of experience and developments. Following representations by Australia and through the good offices successively of the Palestinian, United Kingdom, German and Israeli Governments, which I am pleased indeed to acknowledge here, over three million pounds have already been received in the Fund and distributed to members of the Temple Society and others who migrated to Australia; and, under agreements concluded, or to be concluded, claimants here may, without long delay, receive with interest a total of between five and six million pounds for their former assets in Palestine or Israel. In addition, claimants overseas for whom Germany is responsible are to receive over two million pounds. Approximately 1,500 former German residents of Palestine or Israel have migrated to Australia without cost to the Commonwealth for their passages or for the administration of their funds, and most are now naturalised Australian citizens. About 500 others still remain overseas in Germany or elsewhere.
The principal Act confers no legal rights upon claimants, and moneys in the Fund are paid out in accordance with just rather than legal entitlement. However, practical administration of the Fund over the years since 1949 has revealed the need for amendments to the principal Act. Clause 1 of the Bill refers to the titles of the principal and amending Acts and is self-explanatory. Clause 2 provides that the amendments now proposed shall be deemed to have come into operation as from the commencement of the principal Act. This provision is necessary so that there shall be no doubt as to the validity of action taken, in accordance with earlier legal opinions, in the past. Clause 3 of the Bill widens the description, of moneys payable to the Fund. Under section 4 (2) of the principal Act, moneys are payable to the Fund which represent “ proceeds of the realisation “ of the assets of these migrants, a description which applies to certain moneys received from the United Kingdom and Palestine. This clause of the Bill removes any doubt there may be that moneys are also payable to the Fund which represent compensation - and interest earned on compensation - paid by Israel for other relevant assets.
Clause 4 of the Bill provides that section (6) (1.) of the principal Act shall be omitted and replaced. Under section 6 (1.) (a) of the principal Act, the Minister for Immigration is empowered to apply moneys standing to the credit of the Fund in making payments, on such terms and conditions as he thinks fit, to the Temple Society, members of the Temple Society and other persons who owned property in Palestine or Israel. Clause (6) (1.) (a) and (b) of this Bill provides that the Minister may also make payments to the following classes of persons who are not eligible or not clearly eligible to receive payments under the principal act. They are as follows: Persons who themselves owned no property in Palestine or Israel, for example, certain legal personal representatives or beneficiaries of claimants who have died; persons who are not entitled to such payments in their own right, but who may reasonably and justly be paid on behalf of others, for example, nominees authorised to receive moneys on behalf of communal bodies; and persons who are outside Australia, for example, persons abroad for study or medical treatment. It is also necessary for the Minister, when authorising payments from the Fund, to have regard to conditions relating to such payments in agreements between Australia and the countries from which the moneys have been received; that is, the German-Australian Agreement dealing with compensation received from Israel. As there is no provision of this nature in the original Act, the necessary authority is proposed under proposed new section 6 (1.) (b) (iii).
Clause 4 of the Bill also provides that section (6) (1.) (b) of the principal Act is to be replaced by new clause (6) (1.) (c). The original Act empowered the Minister to apply moneys standing to the credit of the Fund “ in meeting expenses incurred by the Commonwealth in connection with the administration of the Fund or in connection with the immigration to Australia of persons “ concerned. Moneys standing to the credit of the Fund have been used to meet such expenses. However, particular expenses incurred in connection with negotiations for the payment of relevant moneys, the rehabilitation of migrants concerned and incidental purposes have been charged, under advice, to so-called “ administrative moneys “.
These “ administrative moneys “ were originally appropriated by the Palestinian Government for the evacuation and rehabilitation of German nationals and for similar and incidental purposes, and were sent by the United Kingdom to Australia to cover appropriate expenditure here when Australia assumed responsibility for the settlement of these migrants. According to more recent legal advice, “ administrative moneys “ a3 a matter of law form part of the Fund established under the Act. It is therefore necessary to ensure that there is clear authority for the particular class of expenditure mentioned to be charged to the Fund.
Hence section (6)(l.)(c) provided for by this Bill is proposed so that the Minister may clearly apply moneys standing to the credit of the Fund in meeting expenses incurred by the Commonwealth in connection with or as incidental to the administration of the Fund, negotiations regarding relevant moneys and the immigration and rehabilitation of the migrants in question. I emphasise that the purpose of this Bill is to do no more than revise the Act so that moneys in the Fund may continue to be administered efficiently, justly and securely. I commend this measure to the House in the interests of all concerned.
Debate (on motion by Mr. Daly) adjourned.
Consideration resumed from 1st December (vide page 3471).
Clause 25. (I.) The Commissioner shall give written notice to the Attorney-General of all direct and indirect pecuniary interests that he has or acquires in any business carried on in Australia, or in any corporation carrying on any such business.
Upon which Mr. Wentworth had moved by way of amendment -
At the end of the clause add the following subclause: - “ (4.) No member of a Tribunal shall sit in any matter on which he has a direct or indirect pecuniary interest unless he has first publicly disclosed that interest, and either the Attorney-General or any party to the matter may object to the sitting of any member who has so disclosed an interest in that particular matter.”.
– The Committee will recall that the honorable member for Mackellar (Mr. Wentworth) moved this amendment following quite a lengthy discussion on whether certain words should be inserted in sub-clause (3.), under which the Commissioner is required to give written notice of all direct and indirect pecuniary interests that he has in any business anywhere in Australia. As a result of a division, an amendment to the effect that that provision should apply also to the members of the Trade Practices Tribunal was not accepted. However, I believe that there was a clear indication by many honorable members of their view that it is desirable that something be known of the pecuniary interests of the members of the Tribunal who are chosen to sit on any particular matter. It was for that reason that the honorable member for Mackellar moved his amendment. I am very pleased to support it. I believe that it is right.
In the earlier discussion the AttorneyGeneral (Mr. Snedden) tried to assure us that this provision was unnecessary because an old understanding in the legal profession which is part of a substantial body of ethics of court behaviour is that no legal man - judge, barrister or solicitor - would take any part in a matter in which he had a pecuniary interest, lt was deduced from that fact that the people who will be appointed to this Tribunal will have the same code of ethics and will not take any part in any matter in which they have a pecuniary interest. That is a very nice theory. But due regard must be had to the fact that this Tribunal is not a legal body. It is not a court. It is not a body whose members have a long background of ethical standards with which they will comply. It seems to me that there should be written into this Bill somewhere a requirement for the disclosure of the fact that a man appointed to the Tribunal has a pecuniary interest in a matter that comes before it for examination.
It has been suggested that the situation for which the Bill provides might be an advantage to the parties who were being examined. It has been suggested that the parties might like to have on the Tribunal somebody who has a pecuniary interest in the matter. But I submit that that is not the matter that is now under discussion. Whether something is good or bad for the Commissioner or the parties who are being examined does not come into this matter. We have to do the just and fair thing. If it is good enough to assume that in a court a judge would not sit on a case in which he had a pecuniary interest, that position should apply to a tribunal that is examining business practices. I do not think we can assume that the businessmen concerned would have the same scruples about whether they should disclose any pecuniary interest that they have.
I do not think it is necessary for us to go as far as to say that a member of the Tribunal should be required to disclose the full nature of the interest that he has in every business or in other businesses. But if he indicates before the proceedings start that he has a pecuniary interest in the matter, the people concerned can then find out about his interest or examine him about it, if they wish. He might even be willing to tell them about it. If a member of the Tribunal has any direct or indirect pecuniary interest in the matter before the Tribunal, he should indicate before the commencement of the proceedings that he has such an interest, and then it should be decided whether or not he should sit on that matter. If the parties believe that it is to their advantage to have on the Tribunal a man with a pecuniary interest in the matter, well and good.
If the matter before the Tribunal was, say, containers and the glass industry was being examined, and if a member of the Tribunal had an interest in the canning industry, that may or may not affect his judgment on what to do about glass containers. Of course, we always have the difficulty of defining the matter under dis cussion before the Tribunal. I highly commend the amendment, Sir. I believe that interests of the kind about which we are talking must be known before a person who holds them proceeds to sit on a matter. If the parties to a matter want to object to that person’s sitting they should be able to do so. The choice should be in their hands.
.- -Mr. Chairman, the history of the amendment has, I think, been recalled to some degree by the honorable member for McMillan (Mr. Buchanan). It goes back to an amendment to this clause proposed by the honorable member for Moreton (Mr. Killen) and an amendment to that amendment proposed by the Deputy Leader of the Opposition (Mr. Whitlam) which would have provided, in effect, that no-one having shares in public companies would be eligible to sit on the Trade Practices Tribunal. I judge that in the Committee’s opinion this proposal went too far.
– If that was what was intended, my amendment would have so stated. All it intended was that interests should be disclosed. It would not have disqualified persons holding interests in corporations or businesses.
– I am sorry if I misunderstood the proposal. The amendment proposed by the honorable member for Moreton was designed to ensure that such interests held by members of the Tribunal would be disclosed to the Attorney-General. That proposal was in my view thoroughly acceptable and honorable members will recall that I voted for it and against the Government. This was not something that I did lightly. I did it because I had a deep conviction that it was essential that if a pecuniary interest was held by a person sitting as a member of the Tribunal that interest be disclosed. This body as much as any tribunal in the land should be subject to scrutiny if ordinary members of the community are to repose in it the same degree of confidence as other legal tribunals enjoy.
The amendment that we are now considering was proposed by the honorable member for Mackellar (Mr. Wentworth) and has been supported by the honorable member for McMillan. It goes much further than anything to which I could subscribe. It goes to the point of proposing that there be a public disclosure of any pecuniary interest but, as the honorable member for McMillan said, the full extent of that interest need not be stated. I believe that this is dangerous phraseology. It is not contained in the amendment itself. This just represents a rider added by one who supports the amendment. In my view the interesting words used by the honorable member for McMillan were those in which he stated that disclosure should be made so that the member of the Tribunal making the disclosure may be examined by the parties interested in the matter being heard. In other words, the parties interested in the matter could examine a member of the Tribunal as to his interests and financial investments or, as the honorable member for McMillan added, the member may be prepared to disclose these. I believe that here we have the beginnings of something that I should like to avoid. So I give notice, Mr. Chairman, that when the Committee has disposed of this clause I shall seek leave to move for the insertion of a new clause 19a. My purpose is to make provision for the disclosure of financial interests by members of the Tribunal in a way that I consider will be acceptable to the Committee.
– Will the honorable member read his proposed new clause?
– Would honorable members like me to read it?
– Please do so.
– I shall seek leave to propose a new clause in these terms - 19a. When a member, other than a presidential member, is informed by the President that the President proposes that the member shall be 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 corporation carrying on any such business, being an interest that could be in conflict with his duties as a member of the Tribunal in those proceedings.
In my view, Mr. Chairman, that provision will be thoroughly acceptable. I cannot support the amendment now before the Committee because I believe that it has undesirable features that would focus the attention of people wanting merely to make mischief or some public display on proceedings before the Tribunal. Provisions such as those embodied in this amendment could prevent the best men in the country - men of the calibre that’ we want to attract to the Tribunal - from laying themselves open to what the honorable member for McMillan has already described as a public examination of their private investments and business interests. I believe that this would go much too far. I have a great deal of confidence that the President of the Tribunal, having, as he does, judicial authority, standing and status as has been admitted by previous speakers - this integrity of the bench attaching to him - will keep secure the information disclosed and in this way the public interest will best be served.
.- Mr. Chairman, when we were discussing clause 17, which was negatived by the Committee, I considered that lay members of the Trade Practices Tribunal should disclose their pecuniary interests to the Attorney-General so that he in turn could disclose them to the President of the Tribunal. I believed at the time that this would ensure that there would be no embarrassment and no feeling of lack of confidence. I do not want to repeat the arguments that I advanced then. Subsequently, however, the honorable member for Mackellar (Mr. Wentworth) proposed the amendment that we are now considering. On reflection, I consider that the words “ publicly disclosed “ in the new sub-clause that he has proposed go a little too far. I do not believe it is necessary that pecuniary interests of members of the Tribunal be publicly disclosed. I think it is quite sufficient if such interests are disclosed to the President. This would be satisfactory to me. I am sure that it would give the community confidence, too, if lay members of the Tribunal were required to disclose their pecuniary interests to the President so that he in turn could pass the information on to the parties in any matter if necessary.
– He might not do so.
– It is not provided that he must do so, but he may. There will be no compulsion about it. I am sure that he would first of all consider whether there was a conflict of interests and that if he came to the conclusion that such a conflict of interests existed he would decide that the member involved should not constitute a member of the Division of the Tribunal hearing the matter concerned. I believe that the key word that distinguishes between the amendment foreshadowed by the honorable member for Evans (Dr. Mackay) and that proposed by the honorable member for Mackellar-
Order! I do not want the Committee to embark now on a discussion relating to the amendment foreshadowed by the honorable member for Evans (Dr. Mackay). He was allowed to intimate its terms so that the Committee would have information about what he had in mind. But I do not want the Committee at this juncture to debate the subject matter of the proposal.
– I appreciate that point, Mr. Chairman, and I shall not debate the matter. However, the honorable member for Evans has discussed it with me outside the chamber and I know what he is thinking. I believe that the key word is the expression “ publicly “ contained in the amendment that we are now considering. I consider that the honorable member for Mackellars proposed amendment, by the use of this word, will go too far. I do not believe that a member of the Tribunal should have to make public disclosure of his pecuniary interests. It will be sufficient if disclosure is made to the President. I conclude by stating that I shall support the amendment foreshadowed by the honorable member for Evans.
– I think that my friends, the honorable members for Isaacs (Mr. Haworth) and Evans (Dr. Mackay), have missed one of the salient points in this regard. Both honorable members would put the presidential member of the Tribunal in a false and embarrassing position. There is a difference between this kind of tribunal and a court of law. In a court of law it is the usual legal convention that a judge who has a strong personal interest in a matter endeavours to avoid sitting on that matter. If he has a trivial interest he may disclose it. But the position of the legal profession is that a judge, having such interest, avoids sitting. In the kind of tribunal that we are considering we want to provide for something else. We feel that in this kind of tribunal a man who has a interest may often be the best man to sit.
– This is agreed. So we cannot have the situation where the presidential member, although he may be a judge, may apply the rules which he would have applied as a judge. He must come to another kind of decision altogether. It may well be that the right person to sit is one who has an interest, but it is altogether wrong that such a person who has an interest should sit unless the parties to the case concur.
– Or know.
– How can they concur if they do not know? So they must be told. If they are not told a quite intolerable burden is placed on the presidential member. He is asked to make an embarrassing decision without any principle on which to make it. If I may follow on from the remarks of the honorable member for Isaacs, he said that there may be another embarrassing position: Shall I tell or shall I not? In accordance with the present provision in the Bill and the foreshadowed amendment he would not be directed as to whether it was his duty to tell or whether it was his duty not to tell.
– It could be told in confidence.
– If it is told in confidence, perhaps he should not tell. We cannot put the presidential member in this embarrassing kind of situation. I think that my friend from Evans has not understood the consequence of the admission he made a moment ago that in this matter, unlike a strictly legal matter, sometimes we may desire a person who has an interest to sit, but we would only desire this if the presence of that person on the Tribunal was concurred in by the parties to the case, knowing that the member had an interest. Otherwise, not only would justice not be done but also justice would not seem to be done. The honorable member for Moreton (Mr. Killen) only today was telling me of a case in which he was concerned before an import advisory board. I believe that this matter was mentioned at question time today. In that case a member who had an interest sat on the board and the parties to the case did not know. I do not know whether the member who had an interest disclosed that to the president - he may well have disclosed it - and I do not know whether his interest in any way invalidated or swayed the judgment that he gave; but the point I make is that since the parties to the case did not know of the interest until after the case, they felt that wrong had been done to them. As my friend from Moreton has said, they felt right because they were entitled to know before the case started that one of the people sitting in judgment on them had a personal interest.
But in regard to the Trade Practices Tribunal my friend from Evans has said very rightly - I agree with him - that sometimes we would want a person who has an interest to sit; but we do not want him to sit unless the parties to the case know of this interest and raise no objection. How can they know when the disclosure is made in confidence to the President of the Tribunal only? How can we put on the President the discretion to tell or not to tell something which has been told to him in confidence? At least we have a duty to the President to make clear to him in the statute what his course of conduct should be. It may be, as I said last night, that the Government could improve the drafting of the amendment that I have put forward. As I said last night, I am perfectly willing to accept another draft, but I am determined to push to a vote the principle that where a member having an interest sits on the Tribunal, the parties to the matter must be informed, not of the details of that interest but that the interest exists. They should, if they feel so disposed, be able to object to the sitting of that member who has an interest. They do not have to object, but this is their elementary right. This does not prejudice the kind of person or the character of a person whom we could call up for or enrol in this Tribunal because no member of the Tribunal need disclose his affairs. All he has to do is to say: “ I will not sit on this case.” There can be no inquisition by anybody. If he does decide to sit on the case he is not called upon to make a personal disclosure of all his affairs; he is called upon only to declare that he has an interest.
Then we come to the next point. The parties to the case either accept this, as in most cases they would, in which case it is finished, or they object. At this stage the member of the Tribunal would have the free choice either to bow to the objection and leave the Tribunal or perhaps to explain, if he wishes to do so. It is on his own election that he would explain to the parties to the case that his interest was such that they should allow him to continue to sit - in other words, to explain to them something entirely proper. I suggest to my honorable friend from Evans that these are unanswerable arguments. I am not, of course, at variance with the principles that he has put forward; I suggest only that we should carry them out. This Tribunal will be of such a nature that sometimes - not always, but sometimes - it will be highly desirable that a person who has an interest should sit, but he should not sit unless the parties know that he has that interest and concur in his sitting. They should have a chance to object.
The Attorney-General (Mr. Snedden) perhaps may not have realised that I am not suggesting that anybody should be compelled to disclose his private affairs. If a member does not want to sit on a case in which he has no interest, he says nothing. He is not prejudiced. He just does not appear in that case. This is a matter between the member and the President. It never goes beyond the President. I am suggesting that we must not put on the President the twin embarrassments of deciding, on his own account, first, whether the interests disclosed are in conflict. That is an embarrassing decision that a judge does not have to make. If a judge has a substantial interest he merely says he will not sit. Secondly, the President should not be called upon to make the embarrassing decision, where we give him no direction by statute, as to whether he should or should not break a confidence. I say that it is important not only that justice be done but that justice seem to be done and that the parties to the case should know of the interest in the people who sit on the Tribunal, if indeed the people on the Tribunal have, as sometimes they should have, such an interest. This is only fair. I am very much moved by the circumstances recited to me today by the honorable member for Moreton.
– Order! The honorable member’s time has expired.
.- I support any move that tends in the direction of disclosure. What formula is eventually settled for does not greatly trouble me. The Committee will recall that I sought to attach the means of disclosure to the Commissioner and through him to the AttorneyGeneral. I do not believe for one moment that any Attorney-General of this country who had been given that information would not immediately say to the member concerned: “You have a pecuniary interest in this matter. Therefore, for you to sit on this case could be regarded as running contrary to the rules of natural justice.” I could not for one moment believe that any judicial person, having been given this information, would not instinctively say to the person concerned on the tribunal: “ Look, you have a pecuniary interest in this. You have to disclose it to the parties concerned.” How this is done does not greatly trouble me, but I do stand completely firm on the sheer necessity for disclosure to be made. This is done every day in the week. In my own limited experience, I have seen it done frequently. I do hope that the Attorney-General and the Government will settle upon some formula that will meet the outstanding objections on this matter.
I shall support any move towards disclosure. I repeat that the formula that is eventually settled for does not greatly trouble me. I am singularly concerned with the fact of disclosure so that no party can say later: “Look, I just do not feel that I have had a fair deal”. That seems to me to be the significant principle involved.
.- I feel most humble appearing in such distinguished company as has entered this debate. There is only one question that I should like to ask. The amendment moved by the honorable member for Mackellar reads -
No member of the Tribunal shall sit on any matter in which he has a direct or indirect pecuniary interest . . .
The points which have been made so far may be quite powerful, but does this pro posal go far enough? Or is it an amendment which simply blocks up a few holes and leaves others wide open? Let us take by way of example a well known emporium in the city from which I come. It may have associations with other emporiums throughout Australia. It may be concerned with something into which the Tribunal is inquiring. A member selected for the Tribunal could be from another emporium that was not included in the association of emporiums to which I have referred. He would not have a pecuniary interest in the sense of holding shares in the association about which the Tribunal is inquiring but he would be associated with a competing organisation. He might adopt the attitude that although he was a competitor he did not have to reveal that fact because, strictly speaking, he had no pecuniary interest in the emporium concerned with the inquiry. He could therefore sit throughout the hearing. I should like the Minister’s comments on whether such a case would be covered by the amendment under consideration.
.- The honorable member for Mackellar (Mr. Wentworth) has made some points which, of course, have been in my mind, and I am sure that other members of the Committee also share his concern. He made the point that the presidential member would be put in a false situation by the adoption of the course I am proposing. He asked: “How can the parties concur if they do not know of the interest of a lay member? “ I agree that in this particular regard a great responsibility devolves upon the presidential member. ,
– Which amendment are you speaking of?
– I am speaking of the suggestion made by the honorable member for Mackellar with regard to the necessity for public disclosure on the ground that this would be the only means of enabling the parties before the Tribunal to obtain natural justice. It is agreed that there could be on this Tribunal a place for a person with expert knowledge and, indeed, interest in the field. This is agreed because the Tribunal will be concerned with commercial or industrial matters of great detail and therefore its deliberations might be enhanced by the inclusion among its members of someone with a personal interest in the field. As has been pointed out, and as is agreed, the procedure here is different from that of the normal courts of law.
I believe that there are only two considerations involved. The first is whether the interest of the member of the Tribunal is of such a nature that it could disadvantage the parties appearing before the Tribunal. If it is of such a nature, the presidential member, being aware of it, can take the step that is envisaged and not appoint that person to the Tribunal. But if that person’s expert knowledge and interest are such that his presence on the Tribunal will not disadvantage the parties concerned but rather will contribute something useful to the proceedings, there is no worry; the President would be in order in appointing him to the Tribunal. If the President, in his judicial capacity, and with all the integrity with which we can shroud him, decides to appoint that man to the Tribunal, then, in his own conscience and in the normal course of events, he is answerable for the decision of the Tribunal.
This legislation, as we envisage it, may not be perfect but it is tentatively feeling its way forward into a vitally important field for Australia. Indeed, the number of amendments submitted is indicative of the way in which every effort is being made to evolve this complicated legislation in a form which will be in the best interests of all concerned.
I submit that it would be of far greater disadvantage in many instances to have a public disclosure of the interests of a member of the Tribunal and perhaps even crossexamination of him by the parties. Such a procedure might prevent this country from obtaining the services of some of its best and most able business men. I cannot agree with the honorable member for Mackellar.
.- I wish to comment on the point made by the honorable member for Evans (Dr. Mackay) that the President would make the decision as to whether a member should sit on the Tribunal. He strongly stressed the fact that it might be desirable for a member who has an interest in a matter to sit. But the point of the amendment proposed by the honorable member for Mackellar (Mr. Went- worth) is that the interest of the member should be made public so that the parties may decide whether they want him to sit. If the member had to disclose his interest to the president, then the president, because of his legal background and because of the atmosphere in which he has been trained, has to say that the member cannot sit.
– The debate on this issue has thrown up a number of points. I cannot agree with the desire of the honorable member for Mackellar (Mr. Wentworth) or the honorable member for McMillan (Mr. Buchanan) for publication. Therefore, the Government will not accept the amendment proposed by the honorable member for Mackellar.
On the other hand, I have had the opportunity of discussing the matter with a number of members and of listening to what they have had to say during the debate. The amendment which has been foreshadowed by the honorable member for Evans (Dr. Mackay) is one which I think the Government should accept. The point raised by the honorable member for La Trobe (Mr. Jess) is, of course, a valid point and one that has been in the mind of the Government. This is a reason why the President has the responsibility of constituting a particular Division of the Tribunal.
Clause agreed to.
Proposed new clause 19a.
– Mr. Chairman, I seek leave to insert a new clause 1 9a.
– There being no objection, leave is granted.
.- As has been indicated by the Attorney-General (Mr. Snedden), this question has exercised the minds of all parties in the House. One of the points that has come from the debate and about which we can all be gratified is the recognition of the integrity and high sense of responsibility which attaches to the judiciary in this country and the delight that the presidential member of the Tribunal shall have the rank and dignity of a judge. Nevertheless there has been disquiet about the role of the lay members, if I may use that term. These men may have spent a lifetime in the cut and thrust of business with its interlocking interests. The public press today affords many opportunities for us to see examples of the way in which large business concerns and very prominent public names have been associated with events in the business world that have come to an unhappy conclusion. Yesterday in the New South Wales State Parliament the AttorneyGeneral was subjected to what I feel were revolting innuendoes in an Opposition question. The uniform company law of New South Wales contains many sections directing scrutiny of the interests of directors. For instance, section 123 forces disclosure of any interests related to deals or contracts made by a company. In sub-section (5.) it states -
Every director of a company who holds any office or possesses any property whereby directly or indirectly duties or interests’ might be created in conflict with his duties or interests as a director shall declare at a meeting of directors of the company the fact and the nature, character and extent of the conflict.
This is exactly the kind of requirement that we introduce in this new clause. We have agreed that having part time members may be a good thing in some regards. I have already expressed reservations, for a variety of reasons, about the wisdom of all lay members being part time members. One of the chief reasons is that not only should justice be done but it should be seen to be done. There should be no grounds provided for vicious criticism such as has been seen in the last few hours in the New South Wales Parliament, nor for suggestions of collusion between business executives, even on matters of principle, before the Tribunal.
I have appealed to the Government to consider making provision whereby a member shall, on being approached to sit on any matter, make known to the President in a confidential statement any interest he may have which bears directly or indirectly on matters that are likely to affect the issues before the tribunal. This would lease to the judgment and discretion of a presidential member the decision whether any individual ought to be appointed at all. I concede that there are times when it might well be in the public interest to have a member of the Tribunal with close personal experience of and interest in a matter being decided, but at least the
President of the Tribunal should be aware of that interest. This does not require a blanket disclosure of all a member’s interests large and small, because that could be tedious and repetitious and could interfere unnecessarily with private and personal liberties. It means that a panel member is free to decline a particular appointment without giving further reasons or disclosing his private interests. It means, moreover, that the great mantle of integrity that we all agree is possessed, most happily, by the judiciary will be thrown over the whole Tribunal, because knowing the facts the President of the Tribunal will be able to guarantee that integrity. This provision would be queried and challenged, I believe, by only the ignorant or the vicious. I have appealed to the Government to give some thought to this proposal and I now move -
That the following new clause be inserted in the Bill- “ 19a. When a member, other than a presidential member, is informed by the President that the President proposes that the member shall be 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 corporation carrying on any such business, being an interest that could be in conflict with his duties as a member of the Tribunal in those proceedings.”
Mr. WENTWORTH (Mackellar) [3.21J. - I am glad that this new clause, which the Government is prepared to accept, goes at least halfway and removes some of the defects in the Bill. I am glad, too, that it arose out of a debate initiated last night. Nevertheless I do not think the proposal goes quite far enough and I am therefore going to move as an amendment to the amendment, as follows -
At the end of the clause add the following words: - “ and if the President decides that such member shall nevertheless be invited to sit, he shall disclose to all parties to the matter that such an interest exists and thereupon any party to the matter may require that such member shall not sit in t:;at matter.”
This seems to me to be an answer to the hypothetical objections raised by the honorable member for Evans (Dr. Mackay) and by the Attorney-General (Mr. Snedden). It will cure possible abuses or suspicion of abuses that might arise under the proposal now before the Committee. It is essential that the parties should know that one of the members of the Tribunal has an interest. It is not essential that they should know the full extent of that interest if they concur in his sitting. The honorable member for Evans pointed quite rightly to something with which this Committee has already agreed - that sometimes in this kind of tribunal, as opposed to a court, a member having an interest should nevertheless be invited to sit. However, it is contrary to natural justice that he should sit unless the parties to the matter know that he has an interest, though not necessarily the extent of it, and concur in his sitting. I believe that in almost every case they will so concur, but by force of natural justice these decisions should not be made in secret. However great the integrity of the presidential member might be, he should not be called upon to carry the responsibility of making in secret a decision of this kind, because this would lay him open in the future to the most vehement criticism. I recall again to the Committee the example of an import licensing tribunal given by the honorable member for Moreton (Mr. Killen). In that case a member who had interests unknown to the parties sat. There is no evidence that that interest corruptly or improperly influenced him. There is no evidence before us that he did not tell the president of the tribunal in advance. He may have done so. The whole thing may have been quite proper, but it did not appear to be proper and the party to the case had a very justifiable grudge against the justice of what he had been called upon to suffer.
In natural justice, the party to the case is entitled to know whether one of the persons sitting on the Tribunal has an interest in the case. It is wrong to put on to the presidential member the responsibility of making this decision for the parties. The parties have a right, themselves, to make this decision. There is a conflict as to the understanding of the Government’s proposals in the mind, on the one hand, of the honorable member for Evans and in the mind, on the other hand, of the honorable member for Moreton. I understand that the honorable member for Moreton believes that the President being of a judicial background, he will make this disclosure. The honorable member for Evans believes that having received the matter in conference, the President will not make the disclosure.
– The honorable member did not say that.
– I understood that to be the implication of what the honorable member was saying. We have no right to put this kind of responsibility on to the presidential member. If we are to put a duty on him the statute must say what that duty is. My amendment to the new clause proposed by the honorable member for Evans is open to none of the objections that he raised, because it does not require a man to disclose his private affairs at any stage. If he does not want to do so, he does not sit. That is the end of it. If he wants to sit and an objection is made, he still is not under any obligation to disclose his own private affairs. I ask the Committee, as the guardian of natural justice, to try to get away from this hole in corner practice; to try to get away from putting on to the presidential member the responsibility for making a decision without giving him any guide as to the principles that he should follow in making it. I hope that the amendment will be acceptable to the honorable member for Evans and to the Government. I will be interested to hear what the AttorneyGeneral has to say about it.
– The Government will not accept the amendment proposed by the honorable member for Mackellar (Mr. Wentworth). The Government cannot accept the amendment because it seeks to do what was sought by the earlier amendment which was negatived. The amendment still requires the publication of the interest-
– No. It does not.
– The honorable gentleman says that it requires only publication to the parties. If publication to the parties is not publication, I am unable to understand what publication means. Suppose there are 45 parties to an agreement, or even only 5 parties to an agreement. If you go to the five parties and say: “This person has an interest”, the five parties will say: “ What is his interest? “. There is no point in only telling the parties that he has an interest. To do so is meaningless unless you state the interest. If anything is to be achieved you must state the whole of the interest. At that point 5 or 45 people are in possession of the details of the interest. There is no way by which those parties can be required to observe any confidence about the matter. The consequence is that the Government cannot accept the honorable member’s amendment. There is no logic in it.
Additionally, I do not think the Committee could accept the amendment because the Committee has already negatived an amendment which sought to do exactly what this amendment seeks to do. The earlier amendment sought to provide that a member other than a presidential member of the Tribunal could disclose his interest to the parties - publicly, as it was put. That amendment was negatived. Now what is proposed is that a member other than a presidential member should disclose his interest to the President, who in turn should disclose it to the parties. As I have pointed out, disclosure to the parties is the same as making public. This amendment seeks exactly what was sought in the other amendment because if it is carried there will be a public disclosure of interests of the member of the Tribunal. Mr. Chairman, I ask you to rule whether the honorable member’s amendment is in order in that it seeks to do the same thing as was sought by the earlier amendment which was negatived.
– In my view the amendment that has been moved by the honorable member for Mackellar seeks to do substantially what was sought by the earlier amendment which was negatived by the Committee. Accordingly I rule that the amendment moved by the honorable member is out of order.
Motion (by Mr. Wentworth) proposed -
That the Chairman’s ruling be dissented from. (Mr. Wentworth having submitted his objection to the ruling in writing) -
Question put. The committee divided. (The Chairman - Mr. P. E. Lucock.)
Majority .. ..98
Question so resolved in the negative.
.- Members of the Opposition cannot help but feel bewildered by the attitude of Government supporters to the legislation, and particularly to the amendment moved by the honorable member for Evans (Dr. Mackay). We would have thought that after a good night’s rest and efficient use of the steam roller and all the other Liberal Party tactics that are so well known in this Parliament, there might have been some support for the Attorney-General (Mr. Snedden) on the proposals connected with clauses 19 and 25. But the contrary is the fact. We have witnessed the spectacle of a Bill that is a pathetic apology for what was originally intended being attacked by Government supporters. Government supporters will not let even this pathetic apology for a bill pass freely through the Parliament. It is significant that many members of the Liberal Party do not support this clause or the amendment that has been moved, and they have given expression to their lack of support. Apart from the Attorney-General, members of the Cabinet have been significantly lacking in support for the clause under discussion and against the attacks of back benchers on the Government side.
The Country Party has no views whatever on the subject, so how the legislation - and particularly clause 19 - ever got into the Parliament is a puzzle. In New South Wales the Liberal Party will not say whether or not it supports the legislation. In Victoria the Liberal Party has said that it is not only against the amendment to the clause we have been discussing but it is also against the whole legislation. If the Liberal Party in this Parliament is behind the Minister on the clause under discussion it has the strangest method of giving support that I have ever seen.
– Order! 1 suggest that the honorable member come back to the clause itself.
– I shall, Mr. Chairman. The new clause moved by the honorable member for Evans does not satisfy the honorable member for Mackellar (Mr. Wentworth), and the decision of the Committee to uphold your ruling, Mr. Chairman, does not justify the honorable member for Mackellar. The only thing I can say about the amendment moved by the honorable member for Mackellar to the amendment moved by the honorable member for Evans is that this is the first ‘time that the honorable member for Mackellar and his supporters have been prepared, on issues which they have said are vital to the nation, to call for a division. As I look at their display of militancy in an endeavour to defeat ‘this clause my mind goes back to 1961 when they could have defeated this Government and prevented this legislation from being introduced; but they were not prepared to vote against the Government on ‘this and other vital issues. Therefore, Mr. Chairman, more in sorrow than anger, I regret the disunity in the Government ranks. I do not think the Minister is entitled to much consideration. He evidently did not explain the Bill properly in the party room.
– Order! I remind the honorable member of his assurance that he would address his remarks to the clause under discussion.
– I will come back to the clause. By the vote just recorded you have the confidence of this Committee, Mr. Chairman, and I recognise your wisdom. I do not doubt that you noticed me among the hundred members who upheld your ruling. I just make these few remarks in passing. I am very sorry that the Liberal Party is split on this matter. I should love to know what the honorable member for Mallee (Mr. Turnbull) thinks of the Bill, if he can think about it at all, and particularly what he thinks about the clause we are discussing.
.- By adopting the addendum proposed by the honorable member for Evans (Dr. Mackay) this Committee would ‘agree to the institution of one of the worst Star Chamber methods that I have known. The President of the Tribunal will be acquainted with the fact that one of the members of the Tribunal has a pecuniary interest in a matter before the Tribunal. We are not fools. We can imagine the attitude that would be adopted by a party to proceedings before the Tribunal. Surely none of us here is silly enough to believe that this information will not leak out to the parties. What will be the attitude of an aggrieved party when he, or it, knows what the position is?
This legislation as it stands is a mass of legal barbed wire entanglements, and an attempt is being made to add another entanglement to it. I do not know of any action this Committee could take to damn this legislation more completely. I am surprised that the Labour Opposition has not supported the motion before the Committee because after all the further addendum sought to be added by the the honorable member for Mackellar (Mr. Wentworth) is democratic. It removes a heavy responsibility from the President of the Tribunal and gives to the parties concerned the knowledge that a member of the Tribunal has a pecuniary interest in the type of business being discussed. It would mean that a member would have to disclose whether he had a pecuniary interest. Why do not the members of the Labour Opposition support this addendum? They are peculiarly silent. Anybody who wants to damn this legislation entirely should agree to this amendment.
.- It seems to me to be completely fatuous to describe as a Star Chamber method something that is provided for in the uniform company laws in Australia.
– That has nothing to do with it. The honorable member does not know what the clause means.
– Order! I suggest that private debates cease. We have a number of amendments and clauses still to be dealt with. It would be of assistance to the Committee if speakers were allowed to address the Committee without constant interjections and private debates.
– What does it have to do with a star chamber to require members, whom we have agreed to be businessmen of substance, when sitting on a Tribunal, to make to the President of that Tribunal precisely the same disclosure which they make to the secretary of the board of every public company on which they sit? That information is no more likely, indeed far less likely, to leak - to use the euphemistic term of my honorable friend - when disclosed to the President of a Tribunal than when disclosed to the secretary of a company. I maintain that this is a completely fatuous proposition and naturally I support the amendment.
– I have indicated to the Committee that I am not entirely happy with this amendment. I am sorry that you, Mr. Chairman, in your discretion, did not allow an addendum to it because it seems to me that this clause is a denial of natural justice. I put this to the Attorney-General because I hope that the amendment that has been ruled out of order here will be pressed and carried in another place and that the Bill will come back to this House, as indeed it should.
There is no reason why the members of the Tribunal who are interested in a matter should not be known by the parties to be interested. Anything else is a denial of natural justice. I think the phrase “ star chamber “ is colourful. It may be that some honorable members think that using it is going a little far but in substance it is correct. You cannot have these relevant facts not known to the parties to the case before the Tribunal. It is quite different from a court. In a court we do not want a judge sitting on matters in which he has a substantial interest. In this case, we may want a member of the Tribunal sitting on matters in which he has a substantial interest. But if he is so sitting, then the parties to the case are entitled to know that he has that interest. They are not entitled to know the extent of the interest but they are entitled to know that the interest exists. If they object to the member so sitting then they are entitled to express that objection. Earlier in this debate the Attorney-General set up a number of straw men and knocked them over with customary legal facility. But they were straw men. Nobody has suggested that a person should be compelled to disclose his private affairs. The Attorney-General misinterpreted what I have said in this regard. I do not say he did so deliberately. I believe he misunderstood me.
Let me explain the matter to him. I would agree with the point he made that disclosure to the parties is no different from public disclosure. But what I was saying was that no member of the Tribunal was compelled to make any disclosure at all because, if he did not wish to disclose his interest, all he had to do was not to sit on the Tribunal. This is a matter which would be perfectly private. It would be between that member and the President. Nobody would know about it at all. It would never come under public scrutiny. This would be done at his election. Under my proposal, if he still wanted to sit on the Tribunal he could do so subject to no objection being made, provided it was known that he was an interested party. What was wrong with that suggestion? Nothing at all. Thus it has not come under any of the strictures put up by the Attorney-General. In this connection, he built up one of the straw men which he knocked down. I hope that honorable members are not impressed over much by these legal and procedural tricks which, of course, are the legal stock-in-trade of lawyers. That is how they make a living.
In this Committee we should be looking at the substance of the matter. The clause before the Committee, although it is an
Important part of the Bill - and I acknowledge it to be important - goes only half way towards accomplishing the objective I raised last night. It is still not sufficient. I hope that when this Bill is dealt with in another place the amendment, which you, Mr. Chairman, have ruled out of order, will be moved in that other place and carried; that the Bill will come back to this chamber; and that the clause will be incorporated in the Bill. Without it the Bill is defective in quite a material particular.
.- Mr. Chairman, I hope I can settle the ruffled feelings of my friends, the honorable members for Mackellar (Mr. Wentworth) and Mitchell (Mr. Irwin). There is no statutory provision of which I am aware requiring any judicial officer to disclose his interest in a case which comes before him. That comes about entirely through the force of convention and long-established tradition. In respect of this matter, I have argued that as long as there is some disclosure to a judicial person - in the first instance to the Attorney-General, because in the time available to me I was not prepared to launch into a more radical form of amendment - no judicial person would preside over a Tribunal and have on that Tribunal with him people who had an interest that they had not disclosed.
The way in which this provision will work out, in my judgment, is this: If Mr. Justice Brown has Mr. Smith and Mr. O’Brien sitting with him on some matter in which they have an interest he will disclose that interest to the parties. If the parties take exception to it he will say that they will be replaced by somebody else. I understand perfectly the views put by the honorable members for Mackellar and Mitchell but I ask them to consider the position. There would be a judicial person as the President of the Tribunal and he would have to flout the whole ethos and his judicial training, the whole of his instinct, and the whole substance, tradition and convention of the law, if he were equipped with some information relating to interest and did not seek to remedy any defect that may have emerged, or did not acquaint the parties concerned with the position.
– Do you think he will disclose the interest?
– I do not think there is the slightest doubt in the world that he will disclose it. Let me give an illustration. There are two lay members on the Tribunal and one of those members says to the judge: “ I hold an interest in so-and-so “. In that case I would imagine that the judge would say, when the party came before the Tribunal: “ Mr. O’Brien has an interest in this matter. Are you prepared to allow him to proceed?” This would not happen through any statutory provision. This would come about through a convention which, according to my understanding, is scrupulously observed by judicial officers. I do not think the fears expressed by my two friends in this connection are well founded. The initial objection which I had to this provision of failure to disclose has been substantially met.
.- This is the very thing that the AttorneyGeneral has been trying to tell us that he does not want to happen - that the interest will be disclosed. The whole wording of this clause is such that the interest cannot be disclosed. The Attorney-General has deliberately accepted this wording knowing that the interest will not be disclosed. I think he made that very clear. The honorable member for Moreton (Mr. Killen) has expressed two opposing ideas. He said that the presidential member, because of his training, will be convinced that the lay member cannot sit on the particular matter, so he will not even ask the lay member to sit on it. That is inherent in the wording of the proposed new clause. The presidential member is the one who will ask the lay members to sit on a particular matter. If a lay member disclosed to the presidential member a pecuniary interest in a matter, surely the presidential member would not permit him to sit on that matter.
I really rose to repeat what I said before the last division was taken. I believe that it ought to be repeated at this stage. The whole effect of the insertion of this proposed new clause would be to defeat any desire to have on a Division of the Tribunal somebody with a pecuniary interest in the matter before the Division. In my view, this proposed new clause is completely unnecessary and will not achieve anything.
Proposed new clause agreed to.
Clauses 26 to 33 - by leave - taken together.
.- Speaking on clause 32, I ask the Attorney-General whether he will consider including in the exceptions to the power of delegation the powers that the Commissioner will have under clauses 103 and 104. Those powers relate to the requirement to furnish information and to produce documents and to the copying and impounding of documents. I submit that these are two singularly powerful functions which should not be delegated to a member of the Commissioner’s staff. I put it to the AttorneyGeneral that those powers rightly should be exercised only by the Commissioner himself and should not be delegated.
– I see the point that the honorable member for Moreton (Mr. Killen) makes in relation to clause 103 but not in relation to clause 104. Did he say clauses 103 and 104?
– Yes, I did; but I see that clause 104 contains the words “ authorised by him “. So my point relates to clause 103.
– It relates only to clause 103. This is an instance in which there may very well be somebody to whom powers could be delegated - he may be an Assistant Commissioner, a Deputy Commissioner or somebody of that status - because the Commissioner is engaged in conducting consultations or something of that kind. There would be a limit to what such a person could do. I see the point that the honorable gentleman makes. No doubt, this is a matter to which the Commissioner may refer in his reports. He may say whether or not he has had an opportunity to do these things. I repeat that I see the point that the honorable gentleman makes.
Clauses agreed to.
Clause 34 (Secrecy).
– The Deputy Leader of the Opposition (Mr. Whitlam) has circulated an amendment to this clause. But he has asked me to agree to his speaking onit later, when the matter to which it is relevant is before the Committee. I agree to that
– The amendments that I have circulated include amendments to this clause and to clause 40 which bear on the same matter. The Attorney-General agrees that they could be argued and voted on at the same time most conveniently when clause 40 is before the Committee. I suggest that clause 34 be postponed.
Clause - by leave - postponed.
Proposed new Part IIIa and new clauses 34a and 34b.
.- I move -
That the following heading and new clauses be inserted in the Bill - “ Part 111 a - Predatory Pricing and Monopolisation. “ 34a. - (1.) A person who engages in persistent price cutting at a loss with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition is guilty of an offence. “ (2.) The penalty for an offence against this section is -
in the case of an offence committed by a corporation - a fine not exceeding Ten thousand dollars; or
in any other case - a fine not exceeding Four thousand dollars or imprisonment for a term not exceeding six months. “ 34b. - (1.) A person who engages in monopolisation is guilty of an offence. “ (2.) In this section - monopolisation ‘ means 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; monopoly power ‘ 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. “ (3.) The penalty for an offence against this section is -
in the case of an offence committed by a corporation - a fine not exceeding Ten thousand dollars; or
in any other case - a fine not exceeding Four thousand dollars or imprisonment for a term not exceeding six months.”.
The objective of this amendment to the Bill is to restore two essential features of the proposals which were made by Sir Garfield Barwick, the former Attorney-General and present Chief Justice of Australia, for legislation on restrictive trade practices and monopolies and which were put to the
House on his behalf by the present Minister for Shipping and Transport (Mr. Freeth) on 6th December 1962. We members of the Labour Party believe that the importance of the proposals which were made three years ago is that they were the result of debates in the House and many discussions outside it, throughout 1960, 1961 and 1962, concerning restrictive trade practices and monopolies.
They were put to the House in a deliberate form three years ago. They were put to the people by the Government a year later. We did not oppose them. It was not until May of this year that the present Bill revealed that substantial divergences from the scheme put to the House and approved by the people had occurred. In particular, I quote-
– “ Not objected to by the people” would be a better phrase than “ approved by the people “, would it not?
– They were mentioned in the policy speech of the Prime Minister (Sir Robert Menzies) and the Labour Party made no criticism of them. This was not a matter of contention in the election campaign.
Incorporated in the speech that was made by the present Minister for Shipping and Transport on behalf of the then AttorneyGeneral was a document entitled “ Elements of the Scheme”. The concluding section of that document was headed “ Inexcusably unlawful practices “. It reads -
The following practices are inexcusable, and therefore unregisterable -
persistent price cutting at a loss to drive a competitor out of business;
collusive bidding; and
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 purpose, 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.
Near the conclusion of the statement made on behalf of the former Attorney-General this passage appears -
So far I have been dealing with practices which can be conceived to be justifiable in particular cir cumstances, but ‘there are other practices which are felt to be inexcusable in all circumstances. The scheme deals with these by describing them, as in the document which has been incorporated, in a list which I shall call list B, and by prohibiting them absolutely.
The Minister then repeated the four practices which I have already enumerated from the document which was incorporated in “ Hansard “. He went on -
In connection with these practices, there is no question of registering a document or of the application to them by the tribunal of the criterion to which I have referred. They are forbidden in all circumstances. To carry on one of them will inevitably attract process in the ordinary courts, civil or criminal, or both. Here, usual rules will apply, and the elements of the offence will have to be made out by the Crown.
As to monopolisation, the scheme will spell out our existing legislation, removing known deficiencies and accommodating it to the decisions of the courts including the courts of the United States. Monopolisation will be defined . . .
The statement then repeated the words which I have already quoted from the incorporated document. Honorable members will notice, Sir, that only collusive tendering and collusive bidding are made offences under the terms of the Bill now before us and that predatory pricing and monopolisation are not. The former Attorney-General, who is now Chief Justice, made it explicit. In this statement made on his behalf three years ago the present Minister for Shipping and Transport reiterated that predatory pricing and monopolisation would be offences under the terms of the legisation then proposed to control restrictive trade practices and monopolisation. There was scarcely a mention in the present Attorney-General’s second reading speech of the reasons for departing from the proposal put to us in this chamber three years ago and to the people two years ago. The Committee is entitled to an explanation of the reasons for the departure and to justification of the changes if such justification is possible.
It will be noted that the amendments circulated in my name repeat every word of the definition of monopolisation and spell out the practice of predatory pricing. This is not the first occasion during the consideration of this Bill at the Committee stage on which I have mentioned departures from the scheme proposed three years ago by the present Chief Justice. Why have these departures been made? We have not been given an explanation. The two practices in respect of which I am moving to have included in this Bill provisions in the originally proposed and endorsed form ought to be dealt with if the original scheme is to be carried out. Even though on earlier occasions the departures from the earlier proposals of the Chief Justice have remained unexplained and, despite our requests, unjustified, surely it is impossible on this occasion to overlook the basic departures from the original scheme. The occasion of the statement made by the present Minister for Shipping and Transport on behalf of the former Attorney-General was not the first occasion on which we were told that monopolisation and predatory pricing would be made offences. I quote in particular from a speech made by the present Attorney-General on 27th October 1960 in the discussion on an urgency proposal submitted by the honorable member for Newcastle (Mr. Jones) concerning tyres, batteries and motor accessories. The Minister at that time stated - the Pattman-Robinson Act of 1936, in the United States of America, which was part of the New Deal legislation in that country, was specifically directed towards making it a criminal offence to undersell a competitor in order to drive him out of business. The policy behind that Act has been actively pursued in the United States since 1936.
The present Attorney-General certainly led honorable members to believe that he was of the opinion in October 1960 that predatory pricing should be an offence iri this country as it has now been for 29 years in the United States. The former AttorneyGeneral was certainly of the opinion that predatory pricing and monopolisation also should be made offences under the terms of legislation designed to deal with restrictive trade practices. Why are these practices not being made offences under the terms of this Bill? Why has the scheme proposed by the former Attorney-General been diluted to this extent? Why has the present AttorneyGeneral departed from his previous view?
– Order! The honorable member’s time has expired.
.- Mr. Chairman, I shall endeavour to answer what my honorable and learned friend, the Deputy Leader of the Opposition (Mr. Whitlam), has just put to the Committee.
This is a matter on which we joined issue in our respective speeches at the second reading stage. I think it will be apparent from what I have said earlier in the consideration of this measure that I am most anxious to see that it is passed in a form best calculated to enable the Commissioner of Trade Practices and the Trade Practices Tribunal in proper cases to stamp out what I may describe generically as malpractices - practices that on investigation are found to infringe the public interest. The issue that seems to arise between the Government and the Opposition on this point is a fairly narrow one. The issue is: In the light of the full consideration that has been given to this measure over a long period what is the best way to achieve the objective that I have stated? Would it be best achieved by providing for criminal prosecution of offences - by providing that the carrying on of certain practices shall constitute offences and by rendering those taking part in such practices liable to criminal prosecution? Would that be the best way to stamp out malpractices or would it be better on the other hand to rely on the system of investigation by the Commissioner and full inquiry before the Tribunal? For my part I have no hesitation in opting for the latter alternative.
I believe, firstly, that if we erect a system of criminal offences which are to be subject to prosecution we make the task of the prosecutor by no means easy of performance, for he will have to prove beyond reasonable doubt a case against a defendant or an accused, who may be a person or a company. Speaking from some experience in these matters, I have no hesitation in saying that it is no easy task to do this. The sheeting home of an offence by bringing proof that will satisfy the onus imposed in criminal proceedings is always or nearly always attended with considerable difficulty. This applies particularly when one has to embark on proof of matters such as object or intent. The amendment proposed by my honorable and learned friend - I am reading proposed clause 34a. - would create an offence, one of the ingredients of which would be proof of the object of the accused person. It is important to notice that it is the object. I would prefer to see clause 37 as proposed by the Attorney-General (Mr. Snedden) remain in the Bill so that this practice of price cutting with the object of driving a competitor out of business, which is part of the practice of monopolisation, can be investigated fully by the Tribunal. If this sort of thing is to be investigated by the Tribunal, I believe that one is more likely to achieve a situation through the action of the Tribunal in which these malpractices will be the more effectively stopped than if one relied on criminal sanctions.
It is solely with the view of seeing this part of the legislation - I refer to clause 37 in the amended form proposed by the Attorney-General - made as effective as possible for this entirely laudable object that I would oppose any proposal as now comes from the Opposition to make this activity of persistent price cutting with the object of driving competitors out of business a criminal offence. I do not think we will get very far if we do that, and certainly we will not get so far as we would if the matter were left to be resolved by the Commissioner, in the first place, and then by the Tribunal according to the less stringent civil onus of proof, which is the onus of proof which will apply before the Trade Practices Tribunal. For these reasons I oppose the amendment sought by the Deputy Leader of the Opposition.
– I listened very attentively to the address just given by the honorable and learned member for Parkes (Mr. Hughes), but it left me unimpressed. He sought to explain to the Committee why the Government has, without any valid explanation, omitted from the legislation the two important provisions of the Barwick proposals. I refer to proposals 1 and 4 - persistent price cutting at a loss to drive a competitor out of business, and monopolisation. I think I have a more valid explanation of the Government’s action than the one just given. I propose to quote from a book just published called “ Power in the Liberal Party “ by Katherine West. This a well documented book and it can be taken as an authentic publication. The author is the daughter of the Commonwealth Parliamentary Librarian. One can assume that everything that is contained in the book would be well authenticated and could not be fobbed off as material published by somebody who is politically partisan or who wanted to score off the Liberal Party for any party political reason.
I ask the Committee to listen to what the author has to say about the finances of the Liberal Party. Here we can get right to the kernel of what makes the Liberal Party tick, what makes the Liberal Party think and what makes the Liberal Party act. I shall refer to the people who finance the Liberal Party and enable it to continue in existence - it could never live on its politics and it has to rely on those who support it. I want to read this because I am sure that you, Mr. Chairman, will be as interested as I am in the matter I want to deal with. At page 52 of the publication we see -
Members of the Finance Committee have included: Sir Ian Potter, Principal of Ian Potter & Co., Stockbrokers, Melbourne, since 1938;-
– To which clause is this directed?
– Honorable members opposite may interject “ Chair ‘*, but the Chair is quite capable of looking after itself without any help. The Chair, like all honorable members, is looking for a motive to explain why this strange situation has occurred. We are as entitled as a court of law to search for a motive. The motive appears when one reads this book; it is to placate the wealthy financiers behind the Liberal Party. When honorable members hear a little more of the list of names in the book they will begin to understand more readily why the interests mentioned in this book had so much to lose by the earlier legislation which was proposed and so much to gain by the omission of the two important provisions that I have mentioned. If I may say so in passing, one also begins to learn why Sir Garfield Barwick was elevated to the High Court. To continue, Sir Ian Potter is not only principal of the firm of stockbrokers; he is a director of Commercial Union Assurance Co. of Australia Ltd., North British and Mercantile Insurance Co. of Australia Ltd., Email Ltd., Mcllwraith McEacharn Ltd., Bulkships Ltd., Petrochemical Holdings Ltd., Austraiian Petrochemicals Pty. Ltd., and Coco-Cola Bottlers Melbourne Pty. Ltd. Lel me pause there, if I may.
– Order! I think the honorable member might pause considerably. The honorable member for Hindmarsh should remember that when he makes his remarks or comments in regard to an amendment under discussion, the remarks and comments should be relevant to the amendment. The honorable member has been sufficiently long a member in this place to realise exactly what I mean by that.
– That is a very good point, Sir. The reason that 1 paused was because I was about to make the very point that you, Sir, have made. You want me to say how my remarks now are relevant to the omission of monopolisation. Coca-Cola Bottlers Ltd. is a monopoly. There is no question about that. Everybody knows that. But this monopoly will no longer be affected by the proposed legislation because the prohibition on monopolisation which was included in the Barwick proposals has been left out. Who is the person who directs Coca-Cola Bottlers Ltd. - this monopoly? It is none other than Sir Ian Potter, one of the members of the Liberal Party Finance Committee. In view of your ruling, Sir, if I may move quickly across the many other companies that Sir Ian Potter directs to another member of the Finance Committee, I come to Sir Maurice Nathan who, incidentally, happens to have been Lord Mayor of Melbourne from .1961 to 1963. He is also Chairman and Managing Director of Patersons (Aust.) Ltd., an organisation which, if it is not a monopoly, is veering very close towards the monopoly class. He is also President of the Australian Retail Furnishers Association. The retail furnishing trade is another clear case of monopolisation.
– And predatory pricing.
– And predatory pricer, which is going to be relieved from any obligation under this legislation to comply with requirements which would have been imposed upon it under the earlier proposals. I move now to another gentleman mentioned in the book as being a member of the Finance Committee of the Liberal
Party, lt is none other than Sir George Coles, a director of another giant monopoly which will no longer have to worry about the provisions previously announced because they have been carefully omitted from this Bill. I can well imagine our Prime Minister sitting with Mr. George Coles, Mr. Maurice Nathan and Mr. Potter at the Melbourne Club or the Atheneum Club, or wherever it is these people gather together. They are no longer “ misters “ of course, because as part of their reward for giving money to the Liberal Party they have become Knights of the Realm. I can imagine Sir Ian Potter, Sir Maurice Nathan and Sir George Coles gathering with the Prime Minister round a little glass of Scotch and the right honorable gentleman saying: “How are things going Maurice? “ Sir Maurice would answer: “ Oh, not too bad; but we are a bit worried about Barwick’s bill to beat monopolies because we are in this right up to our back teeth.” The Prime Minister would then say: “ That is all right. Leave it to us. I will bring it up at the next meeting of Cabinet. We will see that the monopolies provisions are taken out, so there is no need for you to worry; but keep the money rolling into the Liberal Party’s coffers.”
I see that you are about to pull me up, Mr. Chairman, but I think I have said enough to make the point that the real issue here is not any airy-fairy argument put forward in clever legalistic form by our honorable and learned friend from Parkes. Let us face it; the real fundamental political reason for cutting these things out is to placate these gentlemen of whom I have mentioned only three.
.- I support the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam). The omission from this legislation of provision for effective control over monopolies is a disaster which will be regretted by the mass of the people of this country. When this legislation was first promised, the people felt that at long last positive, definite and clear-cut action would be taken by the National Government to deal with this matter. There is a need to deal with monopolies because the effect upon all sections of our community of price cutting to drive competitors out of business is well known and feared by many small traders and by the mass of the people.
I have been looking back over the promises made by the former AttorneyGeneral, Sir Garfield Barwick. He dealt with these matters in the Robert Garran Memorial Oration in 1964. He emphasised clearly the urgent need to bring about effective control of monopolies in the interests of the people of this country. He drew attention to the fact that monopolies do exist. During the course of his address, he said -
The very thought of any such system of controls is enough to cause many businessmen to express opposition towards the proposed legislation. In truth, of course, the proposed legislation is intended to ensure that our economy is freed from controls - that businessmen are freed from those privately imposed restraints, whether arising from contracts, combinations or informal agreements, which Lord Macnaghten characterised as long ago as 1894 as “interference with individual liberty of action in trading “.
This was the sort of control which Sir Garfield Barwick had in mind. He envisaged controlling the domination of the strong over the weak and preventing the elimination of the weak from the field of competition in private enterprise. He wanted to protect the small man, the little man in those fields. Because of that, he proposed introducing the legislation which he had described. He emphasised how important it was to do these things. Sir Garfield circulated throughout Australia numerous copies of speeches made by himself, as well as copies of reports and other documents to inform the public mind of the value of the Government’s proposed legislation and of the need to curb monopolies effectively in order to protect our people. Further, in the course of his Garran Memorial Oration, he said that he had spoken to numerous people, that he had invited the expression of views and that the legislation that he had prepared and presented was supported by the people. Let me quote further from his statement. I do so because it is important to emphasise that the Barwick proposals were supported by the community and that their omission from this Bill is a betrayal by the Government of a principle pledged to the people of this country by the then Attorney-General, by the Prime Minister (Sir Robert Menzies), and by the Liberal and Country Party machines. Sir Garfield said -
Let me, however, assure you, Mr. Chairman, that I do not propose to use this forum for electioneering purposes; and, in particular, I do not propose to make this address a supplement to what was said by the Prime Minister last night as to the Government’s policy in regard to legislation in this field. My aims will be to draw attention to some of the administrative problems that inevitably call for consideration in connection with any legislation to deal with restrictive trade practices, to indicate how these problems have been met in the legislation of other countries and to offer some suggestions as to how they might be met in legislation to be enacted in this country.
Since the Government proposals for legislation to deal with restrictive trade practices were offered, on 6th December, 1962, for public examination, comment and suggestion, I have addressed a large number of groups expounding the fundamental concepts of the proposals, met numerous deputations, mainly representative of various industries, and received many written representations ranging in length from a few sentences to more than one hundred foolscap pages. These written and oral representations have contained a very large measure of commendatory material, sometimes from sources whence one might have expected opposition rather than support; but a certain percentage - small I may say in relation to the total - has been critical. . . .
Legisation of the kind proposed by Sir Garfield Barwick to curb and control monopolies is being sought by the Australian people today. No matter in what field we may move, the effect of monopolies upon small people engaged in merchandising, industry and commerce, and upon the economy of this nation is to be seen. And what does the Prime Minister say about the omission from this legislation of the provisions relating to monopolies? On 8th October 1963 the Leader of the Opposition (Mr. Calwell) asked the following question -
I desire to ask the Prime Minister a question. I refer to the fact that in the G. L. Wood Memorial Lecture at the University of Melbourne last August, the Attorney-General, referring to the restrictive trade practices proposals, said -
Out of the controversy will emerge new Australian legislation that will make a significant contribution to the needs of Australia. I ask: Was the Attorney-General expressing the Government’s view that Australia needs legislation to control monopolies and protect the people?
The Prime Minister replied -
As to the first part of the honorable member’s question, in which he asked whether the AttorneyGeneral was expressing the Government’s view, the answer is, “ Yes “.
Of course Sir Garfield Barwick was expressing the Government’s policy. He was supporting the elimination of monopolies. Yet we have this betrayal, this retreat from a fundamental principle affecting the economic life of every man, woman and child in this country. It is a deplorable and terrible state of affairs that there should now be a change in the policy of a Government which had pledged itself to a certain positive course with relation to monopolies. I can only hope that there will be on the Government side some honorable members who will support the proposals made by the Deputy Leader of the Opposition - who will support the true principles of free enterprise in this country, and give to the small people their opportunity for survival. Irrespective of what field we turn to - from shipping, transport, metals and fertilisers to the food the people eat - it is dominated and controlled today by monopoly interests. I hope that the Committee accepts the amendment moved by the Deputy Leader of the Opposition.
.- The proposals of Sir Garfield Barwick in 1962 opened with the following statement -
We are united in thinking that monopolies and their ill effects should be dealt with and that small businesses should be protected; but it is a complete misrepresentation to suggest that the Bill does not deal with monopolies. It deals with monopolies in clause 37. 1 suggest to the honorable member for Hindmarsh that he read the Bill. Of course it deals with monopolies. The question is: How should it be done? There are two methods of dealing with monopolies. We know that the American method is to make it a criminal offence to create a monopoly. We also know that that method has proved unsatisfactory. Then there is the method adopted in the United Kingdom where there is an inquiry by a monopolies commission on an economic basis to see whether there is a monopoly and if its effects are contrary to the public interest. If the monopolies commission in the United Kingdom finds that there is a monopoly and that it has ill effects, it makes a report and it rests with the Board of Trade, which is under the control of the Government to decide whether action should be taken.
In deciding between these types of system for dealing with monopolies, ultimately, and after the fullest discussion which Sir Garfield Barwick foreshadowed, the Government has chosen to have the method of inquiry and not to adopt the method of making it a criminal offence, which has proved so unsatisfactory. I suggest that this was a wise decision by the Government. Indeed, the provisions of this Bill are much stronger than those in force in the United Kingdom, because the Tribunal, after making an inquiry into a monopoly, has the power to decide what consequences should flow therefrom. It has the power to make the necessary orders to ensure that what is done is in the public interest. Therefore, I oppose the amendment moved by the Deputy Leader of the Opposition.
.- There has been quite a lack of speakers from the Government side in opposition to the amendment proposed by the Deputy Leader of the Opposition (Mr. Whitlam), but quite a spate of speakers from the freedom fighters group opposite on other important clauses of the Bill. The amendment raises fundamental principles. In particular, as the Deputy Leader of the Opposition has pointed out, two offences as adumbrated by Sir Garfield Barwick have been abandoned, and there has been some intense speculation as to the reasons for this. I would suggest an alternative reason to those already advanced - a very simple and elementary one. I suggest it is for no better or no worse reason than to protect public revenues. It is obvious that two offences - collusive tendering and collusive bidding - have been retained because the Government itself would suffer financially from them. The pattern has been repeated in the sovereign State of Victoria, where the Bolte Government has taken advantage of precisely the same two offences to make them illegal, by State legislation and in relation to intra-State practices. As for the rest, of course, this Government is intending to interpose as many possible obstacles as it can between restrictive practices and the need for their suppression and control.
When we consider this measure we must consider the degree of concentration of industry and commerce in Australia. We are lagging 70 years behind the rest of the world in control legislation. That being so we have the need to catch up. Monopolisation and predatory price cutting are offences which, in themselves, come within the category of per se offences.
– Does the honorable member suggest that clause 37 will not be effective?
– It creates an examinable practice and nothing more. I would refer my honorable friend to the comment of Professor Brunt - I think a very reasonable comment - that there are certain practices which in themselves are so obnoxious, so wrong and so utterly contrary to the public interest that it would be a stark waste of time to go through the brolga dancing procedures of this legislation before coming to the final decision which was obvious from the mere initial examination of them.
– Does the honorable member believe in judgment without trial?
– There are certain offences - and all crimes are in this category - that are so obviously offences against the person of the State that they ought to be and, in fact, are suppressed. The same applies to both of these offences. The honorable member for Parramatta (Mr. Bowen), of all men in this chamber, from his knowledge of criminal law should be well aware of that. There is not the slightest doubt that this kind of practice ought to be made an offence and no satisfactory reason for a contrary view can be advanced apart from nambypamby and shilly-shallying suggestions that we ought to examine them in more detail. What can be more obnoxious than predatory price cutting? What is the purpose of it? Its purpose is to destroy a competitor, and destroy him in the worst possible way - to use economic strength and the mobilisation of resources at the disposal of a major concern to destroy a rival and then to take full advantage of the rival’s elimination by adding his business to the business of the major concern. The process can continue indefinitely. No satisfactory reason has been advanced, and none can be advanced, and there is not the slightest doubt that there has been a process of attrition ever since the Barwick proposals were first outlined in this House. Sir Garfield Barwick is to be given credit for his sincerity, but in terms of political astuteness he made the mistake of his life because, ever since his original proposals, the best brains in Australia have been busy on this Bill cutting, hacking, pruning, adding to and subtracting from it to the point where what is left is merely a caricature of the original legislation. Throughout the world there have been two schools of thought on the way to approach restrictive practices. The approach that has been most effective is the one based on the American pattern, and that is precisely the one which this Government seeks to avoid. It seeks to avoid it for the best of reasons. Last year, for the first time, it was discovered that contrary to the prevailing views of legal interpretation, the Australian Industries Preservation Act was found to be effective - to have teeth. Immediately legislation had to be introduced to destroy that Act and to remove the offences dealt with under the Act.
Under that Act, in respect of monopolisation there were offences which could lead to a criminal charge. In its current proposals the Government refuses to admit that certain practices and agreements obviously could be the subject of a criminal prosecution. I would be the first to admit that there are certain other practices which may or may not be restrictive in themselves and which should be subject to the examination of the Tribunal. But no-one can tell me that in an economy such as we have in Australia - I am now again quoting the words of Professor Hunter of the University of New South Wales - where we have a degree of concentration of control of industry twice that of the United Kingdom and three times of the United States, we should be shying at shadows. We have in this country no fewer than 1,200 trade associations, two-thirds of which are in some form or other actively engaged in organising restrictive trade practices. In some way they are seeking to control for their own benefit and to the public detriment the principle of open competition to which this Government rigidly adheres. This is ridiculous. It is an insult to the collective intelligence of this Committee that we should be asked to forego these two offences. I should like to quote the remarks of Mr. Walker, Lecturer in Law at the University of Sydney. His remarks were published in the “Australian Law Journal” of 30th August 1965. Referring to the Trade Practices Bill and the need for more per se rules, he said -
Yet its success or failure as an instrument of economic and social policy will depend as much upon the legal methods used to regulate the practices which fall within its compass as upon the range of matters dealt with, and on the former point the caution of the Bill is striking;-
That is the keynote of the comment - from its diffident appearance one might almost think that no other country had ever enacted an antitrust law, that there was no empirical evidence which the legislator could have used in order to pick more of the serious varieties of practices for prohibition. As the Bill stands, every instance of an examinable restrictive agreement must be registered and may be tested in comprehensive proceedings before the Restrictive Practices Tribunal.
There are, of course, two exceptions. Mr. Walker continued -
Two main reasons have been put forward for choosing the registration and ad hoc investigation method, and both are convincing when applied to the more ambivalent practices such as exclusive (not exclusionary) dealing which need not be harmful in a substantial percentage of cases. But they cannot justify insisting on detailed individual inquiries into the cruder and more plainly detrimental practices of the kind mentioned above.
.- If I were a member of the Labour Party I would not put forward this amendment, because in my submission the provisions of clause 37 dealing with monopolisation are infinitely more stringent in their potential effect than are the amendments proposed by the Opposition. Let me illustrate what I mean. The Opposition proposes that monopolisation should be made a criminal offence. It proposes in the case of a corporation that it should be fined. But the Opposition has nothing to offer by way of restraining a person from continuing the offence other than by fining him. Under clause 52 (2.) the Tribunal has power to make such orders in respect of an offence under clause 37 as it considers appropriate. The words of the clause are - the Tribunal may make such orders as it thinks proper …
As I construe the clause, it means that the Tribunal may issue a restraining order where there is persistent price cutting. The actual enforcement of the order is carried out by the court. The Opposition’s amendment seeks to have monopolisation in terms of persistent price cutting with the object of substantially damaging a business deemed a criminal offence and to fine the offenders. I submit that to a large, wealthy corporation a fine of 10,000 dollars would be peanuts but a restraining order under clause 52 (2.) would completely prohibit the company from doing anything and that order, in my view, would not be subject to any review by a court. The Opposition either fails to understand the powers resident in clause 37 and clause 52, or it misconceives them.
.- I have here the annual report and balance sheet of Rothmans of Pall Mall (Australia) Ltd., the tobacco manufacturers. I think it must be conceded that Rothmans is a near monopoly in the tobacco business. There are, of course, three other manufacturers in Australia. The directors of Rothmans are well known public identities. They include Mr. Irish, O.B.E.; Sir Kenneth F. Coles, who is a director of a vast wholesale and retail distributing concern in Australia; Mr. Engela, and Sir William A. Gunn, who is Chairman of the Australian Wool Board, in which capacity he endeavours, I believe, to get the highest price for the wool growers. But as a director of Rothmans, Sir William Gunn must see his duty as being to obtain tobacco at the lowest possible price. A number of other distinguished gentlemen are on the board of directors.
The. activities of Rothmans show conclusively that price cutting takes place in Australia. It should not be necessary for members of the Opposition to prove conclusively that price cutting is prevalent in Australia. It should be enough to quote from the last annual report of Rothmans which reads -
The incidence of price-cutting has been the subject of some controversy, in which one manufacturer-
At present that manufacturer is a competitor of Rothmans. But who can say that, as a result of price cutting and mergers in the tobacco business, Rothmans will not, within five years, become so strong as to be virtually the only tobacco manufacturer in
Australia? Unjustifiable price cutting and other unjustifiable practices could very rapidly build this group of manufacturers into a monopoly.
– What about clause 37?
– It does not deal adequately with the problem. I want to stress that this directors’ report is based upon Sir Garfield Barwick’s proposed legislation. At the time this report was issued nobody had any knowledge of the Snedden legislation. Let me quote from the report -
The incidence of price-cutting has been the subject of some controversy, in which one manufacturer
Not the Opposition - has tried to infer that the blame rests with other manufacturers. It is desirable that the facts should be made clear.
It is traditional in the tobacco industry in Australia and overseas that the range of discounts or rebates on the basic wholesale price depends on whether the buyer is a wholesaler, semi-wholesaler or retailer, and on the quantity purchased. So far as- Rothmans is concerned-
That firm is protesting its innocence - the difference between the minimum discount or rebate (on a purchase of 5,000 cigarettes) and the maximum (on a single delivery of 1,000,00!) cigarettes or more) is no more than one cent per packet -
That may be a justifiable discount or it may not, I do not know - whatever type of buyer may be involved. However, the buyer of 1,000,000 cigarettes-
He could be G. J. Coles, who is a director of Rothmans - has to pay handling charges, freight and delivery to individual stores, and in some cases meet other costs, such as financing excise duty, which would otherwise fall on the Company.
Quite obviously, this difference in discount or rebate (which covers every form of benefit from Rothmans to any buyer) allows no possibility of price-cutting because of discriminatory prices.
The plain fact is that some retailers are prepared to sell below the standard margin of profit, and there are some who have sold at a price below cost, but never as a result of any action or special concession by this Company.
The Company has examined its position under the Commonwealth Trade Practices Bill -
That was the Barwick Bill - and is satisfied it does not infringe any of its requirements. If the Company stopped supplies to a price-cutter, or gave discriminatory prices, it could be in breach of the proposed law.
My point is this: If under the Barwick Bill, which was a more rigid Bill than the Sned den Bill, a manufacturer could, in the opinion of Rothmans be guilty of discriminatory trading-
– No, a retailer.
– Wholesaler and retailer. Allow me to quote portion of that passage again for the information of the honorable member for McMillan -
The incidence of price-cutting has been the subject of some controversy, in which one manufacturer -
Surely that is clear enough - has tried to infer that the blame rests with other manufacturers.
There are only four of them in the game and one says that one manufacturer has tried to suggest that some other manufacturer is guilty of price-cutting. The point is that Rothmans considers that these manufacturers - not Rothmans itself, although that firm could be examined loo- would, under the Barwick Bill, be free- and that Bill was a much more rigid Bill than this one. But the point is that we have only Rothmans’ say-so, and if that Bill was satisfactory from the point of view of Rothmans and the other manufacturers and Rothmans is free, how much more important it is - on the say-so of these manufacturers that this kind of thing does take place - that the Bill should retain, as the Opposition’s amendment suggests, the strength of the Barwick provision instead of replacing it, as the Government proposes to do, with a much weaker proposition.
.- There is one further matter to which I should like to direct the attention of the Committee. Section 7 (1.) of the Australian Industries Preservation Act provided as long ago as 1906 -
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.
The new clause 34b proposed by the Deputy Leader of the Opposition (Mr. Whitlam) is very much narrower than that provision. It represents a significant weakening of section 71 (1.) of the Australian Industries Preservation Act. It provides that a person who engages in monopolisation is guilty of an offence, but it defines “ monopolisation “ in such a way as to cover a very much narrower field than was covered by the Australian Industries Preservation Act. Sub-clause (2.) of proposed new clause 34b provides -
In this section - “monopolisation” means acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business-
– Those were Sir Garfield Barwick’s words.
– I know, and the honorable member realises that the Government is departing from them. The sub-clause continues - or using monopoly power in a manner that is unreasonable and detrimental to consumers of goods or services; “monopoly power” 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.
That is a much narrower provision than is contained in the Australian Industries Preservation Act. Now let us look at the penalties provided. Section 7 (1.) of the Australian Industries Preservation Act provides -
Penalty: Five hundred pounds for each day during which the offence continues, or one year’s imprisonment, or both; or, in the case of a corporation, One thousand pounds for each day during which the offence continues.
If the offence continued for 30 days the penalty could amount to £30,000 for a corporation. Then let us consider the penalties that the Deputy Leader of the Opposition has proposed. Sub-clause (3.) of his proposed new clause 34b says -
The penalty for an offence against this section is -
in the case of an offence committed by a corporation - a fine not exceeding Ten thousand dollars-
Or £5,000 as it would be now. This is not nearly as severe as the penalty in section 7(1.), which I have just read. The subclause continues - or
So the proposed penalties are much less effective than the penalties in section 7(1.) of the Australian Industries Preser vation Act. What is the explanation of this? We have had this latter Act in force for 50 years or more. We know that it is no good, that it is useless. Why does the Opposition want to go back to it now? The Government has put forward clause 37 of the Bill. I interjected to ask the honorable member opposite whether he thought it would be effective. Obviously it would be much more effective than the provision that is being proposed by the Deputy Leader of the Opposition. We do not want to go back to something that has been proved ineffectual. There are monopoly practices in Australia and we do want to protect the small man, but we will not do it by going back to something which has been ineffectual for many years.
.- I frankly fail to follow the argument of my honorable and learned friend from Parramatta (Mr. Bowen). We would prefer the Australian Industries Preservation Act. Sir Garfield Barwick did not say he would repeal that Act. Yesterday we put to a vote the question of the preservation of that Act. We want it. It is true enough that it was not used for nearly 50 years, but as a result of the decision of the High Court in Redfern’s case in February last year and also the interpretation given by Mr. Justice Taylor to section 7 of the Australian Industries Preservation Act as applied by the Seat of Government (Administration) Act, to the Australian Capital Territory, it is quite clear that the Australian Industries Preservation Act has very much more force than had previously been thought.
– But still very little force.
– Well, the honorable member was saying that it had more force than the amendment I have moved and upon which we will soon be voting. We prefer the Australian Industries Preservation Act, and it is because it has been shown to have so much more force than it was thought to have at any time between 1910 and 1964 that I believe there has been an incentive to proceed with this substitute legislation. That means that there are many fewer penalties for companies and many fewer rights for injured persons and companies. I acknowledge that my amendment is weaker than the provisions of the Australian Industries Preservation Act. I tried yesterday to preserve the Australian Industries Preservation Act, but the honorable member for Parramatta and his colleagues voted to repeal it. Why then should the honorable member charge me with moving an amendment which is weaker than the Act which he and his colleagues helped to repeal? I do not see the force of his argument.
What I have done by moving this amendment is to bring before the House in legislative form the proposal which was put to it by the former Attorney-General three years ago, and which was put to the people two years ago. I admit that my amendment is weaker than the provisions of the Australian Industries Preservation Act, but nevertheless the provisions of my amendment were put before the Parliament and were also endorsed by the people. Accordingly we are entitled to expect that they should be put in legislative form. Many honorable members on the Government side have justified this dilution of the proposals of the Chief Justice, but the present Attorney-General is not among them. I repeat that the Chief Justice was of the opinion that there are some practices which are felt to be inexcusable in all circumstances. He repeated that when he said -
They are forbidden in all cases. To carry on any one of them will inevitably attract process in the ordinary courts, civil or criminal, or both.
The former Attorney-General put four proposals before the House three years ago. The Prime Minister (Sir Robert Menzies) put those four proposals to the people two years ago. The Bill contains only two of those proposals, and in accordance with the draft of the Chief Justice I have moved that the two omitted proposals now be put in. The Opposition believes that these are still inexcusable and unlawful practices. It is not true to say, as I think the honorable gentleman said, that in the United States these provisions have not worked. They have worked in the United States. Anybody who has conversed with lawyers or businessmen in or from the United States will know how acutely sensitive they are to any tendency towards price cutting or monopolisation. The Americans are particularly discreet in all their practices in this regard. I quoted furthermore from what the Attorney-General said in 1960 when he cited with approval the Pattman-Robinson Act of 1936, which had made predatory price cutting a criminal offence. His clear belief in 1960 was that the same practice should be proscribed and made an offence in this country. Why has he not justified his own view of 1960, even if he is not prepared to explain why he, the responsible Minister, has departed from his predecessor’s proposals to the House three years ago and the Prime Minister’s policy speech delivered two years ago?
.- The Deputy Leader of the Opposition (Mr. Whitlam) proposes to insert a clause relating to price cutting. If an industry or a commercial house cuts prices with a view to providing for wage earners lower prices for goods, that has everything to commend it. If a person cuts prices and then somebody comes along and says: “You have cut prices because you want to wipe out a competitor”, the Deputy Leader of the Opposition wants to start a witch hunt. He wants all sorts of inquiries to be made. The amendment proposed by the Deputy Leader of the Opposition- would enable a person brought before the court as a result of these inquiries to be dealt with - sent to gaol, or fined up to 10,000 dollars. This procedure that is in the mind of the Deputy Leader of the Opposition of imposing a penalty after conducting a witch hunt is something which I think is extremely bad.
On the other hand, the scheme proposed by the Attorney-General (Mr. Snedden) to stop trade practices contrary to the public interest is much better. He proposes to set up a Tribunal which will decide whether or not a practice is contrary to the publicinterest. If the Tribunal decides that a practice is contrary to the public interest the person or body concerned will have to stop that practice. Surely what the Bill is trying to do is to stop practices which are contrary to the public interest. It is not trying to create a general interfering body or to provide for criminal processes that could result in a lot of innocent people being dragged before the courts and either acquitted, because their practices were not contrary to the public interest, or put into gaol because the court came to the conclusion that they were. I believe that the purpose of this Parliament should be to try to stop practices which are contrary to the public interest. That is what the Bill proposes to do, as has been explained by the
Attorney-General. I am in favour of the general scheme or process as outlined by the Attorney-General with the exception of a few compulsory procedures which I will deal with later. The general idea of aiming to stop certain practices rather than conducting a general investigation into all sorts of practices is one that should be accepted by this Committee in preference to the frustrating procedures suggested by the Deputy Leader of the Opposition.
.- The remedial procedures available to a person who has been seriously affected by an unlawful practice are extremely limited. In that regard it is worth contrasting the Barwick proposals with those contained in the present legislation. In the Barwick proposals registration of the agreement or practice, when reduced to writing, would in itself allow the affected party to continue the practice. If the party failed to stop the practice in question there would be two distinct offences with which he could be charged. One would be that of carrying on the practice and the other of failing to register the practice. In this legislation precisely the opposite state of affairs prevails. There is one offence only, namely the offence of failing to register an agreement or failing to reveal the facts of an examinable practice.
In ordinary law, if a person is being injuriously affected by the act of a neighbour he can apply to the Equity Court for an interim injunction to get urgent relief, because if the ordinary processes of the law were followed a considerable time could elapse before the case was heard. This Bill is undoubtedly deficient in that regard. There is a provision in clause 54 for an interim restraining order to be made, but that order cannot apply until proceedings have been instituted by the Commissioner under clause 47. Here we have a Government which not only omits two of the offences which were suggested by the former Attorney-General but is also prepared to allow those offences to continue, and the people who are being adversely affected by those offences to be literally eliminated from business or put in a position where they can never completely recover from the adverse effect of the practice concerned - because under clause 54, I repeat, it is not until proceedings are instituted by the
Commissioner that an interim restraining order can. be applied for.
Let us take the procedure that applies under the Act. In a normal case an agreement has to be registered and 30 days are allowed in which to do that. It will be one of hundreds, perhaps thousands, of such agreements. According to the words of the Attroney-General yesterday, there will not be such a lot of work to be done by the Tribunal in the early stages. There will be a lot of preliminary work to be done by the Commissioner of Trade Practices. He has complete discretion as to what he considers is an examinable practice. He can inform himself on that matter in any way he chooses. He can institute inquiries. In the exercise of his unfettered discretion, he has all the time in the world in which to decide whether or not he will act. Even if he does decide to act finally he still cannot do so under the terms of the Bill until there has been a conference with the wrongdoers at which he might be able to persuade them to alter the practice and see the error of their ways. I think the counterpart of that provision in the United States legislation is called a stipulation conference.
The point I want to make is that not only is the Government abandoning certain obvious offences outlined by the former Attorney-General but it is also denying the injured person the right even to get relief under an interim order until an absolutely unreasonable time has elapsed - it could be months or it could be years - in a particular case.
.- Mr. Chairman, I join in support of the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam) which, as he stated, is to give effect to proposals announced by the former Attorney-General, Sir Garfield Barwick, now Chief Justice of the High Court of Australia, in legislation which he outlined some years ago in this Parliament. As a matter of fact, the views expressed by the Deputy Leader of the Opposition today on this amendment were those that were printed by the then Attorney-General at a cost of £2,000 in order to let the people of Australia know the type of legislation that would be introduced. Today we are discussing a watered down version of it in a Bill that is completely lacking in teeth. This clause, as well as others, has been bitterly opposed by members of the Government parties.
I would say that ultimately the decision as to whether or not the Bill is effective will be made by the judges. As we have seen in this debate, we have had a most notable collection of legal talent, with one or two exceptions, speaking on the interpretation of this measure. Ultimately, it will be decided by the judges of the courts. They will decide the interpretation of a monopoly and other such factors. The amusing thing, in passing, if I might say so, is that lawyers can be sitting in this Parliament one day and be termed political careerists and when elevated to the court the next day they are called infallible judges of the matter under discussion. I listened with interest to the Attorney-General (Mr. Snedden), a Queen’s Council, when he spoke. I listened to the honorable member for Parramatta (Mr. Bowen), a very eminent Queen’s Counsel. I listened also to the Deputy Leader of the Opposition, a Queen’s Counsel, and easily the most outstanding of them all. The point I make, Mr. Chairman, is that they were aided, abetted or assisted on these great legal points in this clause by the honorable member for Moreton (Mr. Killen) in the capacity of junior counsel. I do not think he is a very good junior counsel so I put the interpretation of this clause down to the questions which have been posed by the three notable gentlemen that I have mentioned. Just in passing, I say of the honorable member for Moreton that he has a practice at law. I understand that he is an advocate for conscientious objectors against registration for national service training and that most of them are now in the Army. The point I make, Mr. Chairman, is that every day in the courts of Australia, in cases involving the interpretation of clauses like the one we are discussing today, one or other of these legal gentlemen are proved to be completely wrong.
On this side of Parliament we believe the point of view put forward by the honorable Deputy Leader of the Opposition, an eminent Queen’s Counsel, and also the honorable member for Cunningham (Mr. Connor), a man with a sound knowledge of the law. We believe that their opinions will stand the test against those of honorable members opposite, particularly on the question of a monopoly and things of that nature. That is why 1, as a layman, speak in this debate in order to bring it back to the level at which it should be in my opinion. That is the level at which it is understood by people who realise what is happening in the community. Let us look at the Bill itself and, particularly, at this clause. Even the “ Sydney Morning Herald “, which could hardly be called the advocate of the Labour Party, when dealing with this Bill said that it was a compromise Bill. Dealing particularly with the class of monopoly control which has brought so much discussion, it was stated in an article in the “ Sydney Morning Herald “ -
What finally emerges is a reluctant looking piece of legislation, squeezed out of a long tube after pressures on all sides.
That summary of the legislation was prepared by the newspaper which put this Government into office. The article went on -
Even the scrubbing of most of Sir Garfield Barwick’s proposals against resale price maintenance, though regrettable, might be defended for the time being.
The Attorney-General might well ponder the clause we are discussing when I mention the next extract from this newspaper which stated -
Only now is it possible to realise how much the idea of anti-monopolies legislation was Sir Garfield Barwick’s baby in the first place. . . . But with the departure and non-replacement of the pilot in the Cabinet room, the compromises have multiplied.
That applies particularly to the clause under discussion. Sir Garfield Barwick, in his ivory tower in the High Court today, must ponder and shed a silent tear at the demise of the really liberal views he expressed when he introduced this legislation to the Parliament. Will the Attorney-General deny what the honorable member for Lalor (Mr. Pollard) said and say that there is no monopoly control in the tobacco industry? Will companies like Rothman’s of Pall Mall (Aust.) Ltd. and others be controlled under this legislation? I do not think so, if this clause is any criterion. In addition to that, will he say that mergers and takeovers are not the first step towards monopoly control which this Bill is supposed to prevent? Will we find that those practices are not covered in the Bill? Are they expressly excluded from these provisions even though the view expressed in this Parliament by Mr. Freeth, as Acting
Attorney-General in December 1962, on behalf of the Attorney-General was -
The following practices are inexcusable and therefore unregisterable -
persistent price cutting at a loss to drive a competitor out of business;
collusive bidding; and
monopolisation, as to which I shall say something in a moment.
Two of those matters have been eliminated completely from this legislation. The proposition put by the Deputy Leader of the Opposition today seeks to re-insert in this legislation provisions which Sir Garfield Barwick stood by. I turn, for instance, to the “ Sydney Stock Exchange Annual Report 1963 “ and I find that in 1959 there were 21 industries taken over; in 1960 there were 25; in 1961 there were 33; in 1962 there were 22; and in 1963 there were 9. Honorable members can see that gradually, by these processes, industries are being taken over and monopolised. Ultimately there will be a very limited number of distributors distributing all kinds of products, particularly primary products.
That brings me to another point: Since the Minister for Social Services (Mr. Sinclair) spoke on this measure, not one Country Party member has even bothered to stand up in his place and protect the interests of primary producers against monopoly controlled organisations that sell them the capital goods and machinery which are so necessary. I know that you, Mr. Chairman, if you were out there with the Country Party representatives, would be expressing the point of view that they should be expressing. I believe that the amendment that has been moved by the Deputy Leader of the Opposition undoubtedly will put some teeth in the Bill. That is necessary. I quote the following report of a speech by Dr. H. C. Coombs -
In his presidential address on the subject of inflation given to the last meeting of A.N.Z.A.A.S. in Perth, Dr. H. C. Coombs, the Governor of the Reserve Bank of Australia, said there was a common tendency in industry to pass on wagecost increases in the form of higher prices to the public but that it was less common to see prices reduced after productive efficiency was improved; and he suggested that this inelasticity was a symptom of a highly monopolistic condition in Australian industry which was being aggravated by company takeovers.
Dr. Coombs is the man who, in effect, controls the Australian economy through the position that he occupies in banking circles. One can go to a dozen and one sections of the Parliamentary Library and find criticism from all types of people of the monopoly control, takeovers and mergers which are completely excluded from the provisions of this Bill.
No matter what may be said and no matter in what bickering and sham lighting certain members of the Government parties engage, if they believe in this legislation they have a responsibility to see that it is made effective. They can do that by supporting Labour amendments which are designed to see that the people get a fair deal. The honorable member for McMillan (Mr. Buchanan), who is interjecting, has supported every proposal against the Bill and has not voted for one proposal which was opposed to the things against which he was speaking. Not once has he voted against the Government on this Bill. He has spoken on extraneous matters, contrary to the ruling of the Chair. That is the type of opposition that is coming from the other side of the chamber in an endeavour to whittle away the Bill still further. I suggest that one or more of the legal gentlemen, including the Attorney-General, who have been giving us their views on this Bill will be proved wrong when cases on it are finally decided. I believe that the proposition put by the Deputy Leader of the Opposition in his amendment will stand up in the courts of law when this Bill is tested in the courts, as no doubt it will be.
Question put -
That the heading and new clauses proposed to be inserted (Mr. Whitlam’s amendment) be inserted.
The Committee divided. (The Chairman - Mr. P. E. Lucock.)
Majority .. ..12
Question so resolved in the negative.
Clause 35. (1.) Subject to this Part, an agreement is an examinable agreement for the purposes of this Act if (either 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 carrying on businesses that are competitive with each other and each of which is a business of the supply of goods or services, and is an agreement under which restrictions of any of the following kinds are accepted by one or more of those persons in relation to any such business, namely restrictions in respect of -
.- We are now getting on to Part IV of the Bill which deals with examinable agreements and practices. I refer to paragraph (a) of sub-clause (1.). One of the features of this measure that is unnecessarily causing a lot of doubt, confusion and misunderstanding in industry is that industry will not know what is really required of it. A few times we have heard it said: “What has industry to fear? If it does the right thing it will have nothing to worry about.” The trouble is that industry does not know whether it will be doing the right thing. What the right thing is has not been made clear. At the second reading stage I said that I considered that it was necessary for industry to have some assurance of what the provisions of this Bill meant so that there would be some certainty about what was required of industry.
From here on as we get into definitions of various kinds there will be many inferences to be drawn about what ought to be done to comply with the requirements of the Bill. We appear to be using vague, dragnet expressions based on supposition. I propose as we go along to bring these to the attention of the Committee in the hope that some of them will be clarified. The Minister stated in his reply at the end of the second reading debate that he too believes that there should be certainty in this. If industry is to understand what it is supposed to comply with it is essential, I submit that the Bill should state what is expected of it. Industry wants to know what agreements it will have to ferret out and decide as being necessary to notify to the Registrar of the Trade Practices Tribunal for inclusion in his list so that they become registered agreements.
I can understand the words “ the terms or conditions, whether as to prices “ in paragraph (a) of sub-clause (1.). Naturally, one of the first matters that will be looked into is prices. This paragraph concludes with the words - or as to any other matter, upon or subject to which dealings may be engaged in;
These are so vague as to be impossible for anybody to understand. I suggest that the words “ affecting prices “ are required after the word “matter”. The paragraph would then read - the terms or conditions, whether as to prices or as to any other matter affecting prices, upon or subject to which dealings may be engaged in;
Industry would then understand that this provision will require it to gather together and register price agreements. Accordingly, Sir, I move -
In sub-clause (1.), paragraph (a), after “ matter “ insert “ affecting prices “.
Sitting suspended from 5.52 to 8 p.m.
.- Before the sitting was suspended we were dealing with clause 35 of this Bill which is a Bill for an Act to preserve competition in Australian trade and commerce to the extent required by the public interest. Clause 35 relates to agreements between competitors containing certain restrictions. In other words, it deals with agreements between the business tycoons of the community and the O.B.E.’s of the community.
– Whom do you mean by O.B.E.’s?
– I refer to the ordinary blokes, etc., to use a colloquial expression. I think the honorable member knows whom I mean. In the concluding portion of the second reading speech of the Attorney-General (Mr. Snedden), I did see one ray of light. He said that the Bill was so drafted as to remove all questions of uncertainty and to give some clarity of definition to the Tribunal as it would be so different from a court of law.
Clarity, certainty and simplicity are essential to enable those engaged in industry and commerce to know exactly what agreements are registrable or subject to inquiry, particularly in view of the fact that the penalty for not knowing what comes within the definition is a fine of up to £1,000. Unless an expression is clear in its meaning, unless it covers only the matters which it is intended to cover, it should be deleted or qualified.
There are several dragnet expressions used in clause 35 which do not appear to achieve the desired objective. The exact scope of those expressions is most obscure. I think the Committee is entitled to a full explanation from the Attorney-General as to what this dragnet expression means. It is not fair that business people should be compelled to incur the expense of seeking an interpretation from a lawyer.
The honorable member for MacMillan (Mr. Buchanan) referred to one aspect of this matter. He referred to the expression “ as to prices or as to any other matter “. The legal members of the community may very well know what that expression means, but lay people, whom this Bill is designed to cover, should also know what is meant by a phrase such as “ as to any other matter “. Does it refer to prices? Does it refer to services? We do not know and I do not think the lay people of the community know. They are entitled to know.
There is another expression - a similar device - to which I wish to refer. Paragraph (d) refers to “ places “. The Bill contains no definition of “ places “. I think it is a well settled rule of statutory interpretation that when dealing with the meaning of words which are not terms of art, courts shall have recourse to dictionary definitions. In common English usage “ places “ has a very wide meaning. Primarily, it refers to a particular part of space but I would include not only areas but also premises in my interpretation of the meaning of this word. If we include premises then the word has a vastly different meaning. It is apprehended that it is not the intention of this provision to cover individual premises. But who is to know that? Therefore, I think the word “ places “ should be deleted and some other precise term should be used. Perhaps “ market areas “ or “ zones “ would be more applicable. Or perhaps we could use the word “areas”.
This Bill has been drawn up by the Attorney-General who is a barrister at law. I see he is now engaged in conversation at the table. I am suggesting to the Committee that he might let us know precisely what these expressions mean because they apply to the ordinary man who should be able to understand them readily. He should not be put to the expense of having to engage the services of a lawyer to interpret them for him. All through this Bill there are very many definitions that can be interpreted in many different ways. In fact the Bill has been described already as a lawyer’s bill.
If only the Attorney-General would give me a little of his attention for a moment, we might be able to have this matter clarified after I have finished speaking. Apparently he is engaged in conversation with another lawyer. I am merely drawing the attention of the Committee to the fact that although this Bill has been designed to assist lawyers, it is claimed to be specifically designed to help the public also. I should very much like to know what the peculiar expression “ places “ means. Does it mean space, or does it mean market areas, zones, or just areas? I now pass the question over to the Attorney-General as my time has almost expired. I hope he will give us a little of his attention and describe to us the meanings of these various expressions because he did say in his second reading speech that this Bill would be easy for the public to understand; that it would have clarity written right through it.
.- I wish to raise two points in connection with this clause. The first relates to the Government’s proposed amendment to sub-clause (2.) which seeks to delete the words: “ or are likely to become “. What is the reason for this deletion?
– Order! The amendment to which the honorable member for Moreton refers has not yet been moved. Therefore it is not before the Committee for discussion. The only amendment before the Committee at the moment is that which was moved by the honorable member for Mackellar just prior to the suspension of the sitting.
– I am grateful to you for your assistance. I think you will concede that I have not wandered too much so far. I ask the Attorney-General whether he can explain why it is that the objective test is used with respect to clause 35. The Committee will notice in clause 35 that the phrase “ if the Tribunal is satisfied “, “ if the
Tribunal in its opinion “ or “ if the Tribunal considers it appropriate” is not used. In other words a discretionary phrase does not appear in clause 35. The effect of that is that if there is an argument with respect to an examinable agreement dealing with, say, the qualities and extent of goods provided, the argument is put completely within the surveillance of the ordinary courts of law. The superintendence of the High Court is not cut short by the discretion given to the Tribunal in the form of such words as “ if the Tribunal is of opinion “ or “ if the Tribunal is satisfied “. I am particularly interested in getting from the Attorney-General an explanation as to why there is no discretion in clause 35 and, consequently, if there is any argument about what is an examinable agreement that argument can be removed from the Tribunal and taken before the High Court.
– I am afraid that what the honorable member for Moreton (Mr. Killen) thinks is not what I think. In the amendments that have been circulated there is an objection to what he describes as discretion on the part of the Tribunal. We will be considering this later. I think the same discretion exists in this clause, because one must tie it up with other clauses which, in themselves, enable the Tribunal to reach a decision as to whether there is an agreement.
– Not under clause 35.
– I have expressed what I think is the position. As to the matter raised by the honorable member for McMillan (Mr. Buchanan) and supported by the honorable member for Isaacs (Mr. Haworth) I think there is power here.
– But industry does not.
– Out of a multitude of representations that I have received there has been one only in relation to this matter. I have had the advantage of talking to the people who made this representation and they have indicated that they are not vitally concerned with this matter. I think the position is quite clear.
.- I am not satisfied with that explanation. I am concerned specifically with clause 35 (1.) (d).
– 1 am sorry. I overlooked that the honorable member was referring to “ places “.
– I want to know whether “ places “ means spaces or whether it means market areas, zones or areas. I think this is quite important and that we should have some clarity at this time. It might save some people in industry a lawyer’s fee.
– I apologise to the honorable member for not making this point clear. I had made a note of it, but I overlooked it. “ Places “ has its normal meaning. For instance a place could be in Melbourne. Two people talking about it would identify it by saying “ it is that place “. It will be within the capability of the parties to an agreement to identify the place. In legislation one would not attempt to define the sort of places upon which parties could agree. In their agreement the parties will nominate the place, and the agreement will speak for itself. The word “ places “ - in the plural as it appears in the Bill - is therefore ambulatory and in the ambulatory sense it will cover those places agreed upon. There is no escape from the use of the words on which the parties agree.
– I shall not press the Attorney-General now but I hope that some time during the Committee stages he will indicate to me in what way clause 35 - relating to examinable agreements - and clause 36 are exposed to a subjective test by the Tribunal. I put it to him that with respect to an examinable agreement and an examinable practice both are immediately exposed to an objective test and that if the Tribunal should exceed its jurisdiction the matter could be referred, by way of prerogative order, to the High Court. I am particularly interested in this with respect to clause 37. I want to know why it is - and my honorable friends can chew over this question - with respect to clauses 35 and 36 the Tribunal is exposed to making an objective test while with respect to clause 37 the field is high, wide and handsome - it can make its own judgment.
– I move -
After sub-clause (1.) insert the following subclause - “ (1a.) Without prejudice to the application of the last preceding sub-section in relation to the constitution of a trade association, the constitution of a trade association is an examinable agreement if it contains restrictions with respect to the right of persons to become or remain members of the association.”.
This is another attempt to restore to the Bill the features that Sir Garfield Barwick, when Attorney-General - now Chief Justice - promised us in this House on 6th December 1962 that it would contain and which the Prime Minister (Sir Robert Menzies) in his policy speech a year later said that it would contain. Honorable members will remember that in the statement Sir Garfield Barwick prepared for the House three years ago he listed the practices and agreements that would have to be registered under the Bill. There were to be multilateral horizontal arrangements and bilateral and unilateral vertical practices. There were to be six multilateral horizontal arrangements - price fixing, uniform terms of dealing, restrictions of output, restrictions of outlets, boycotts and inducing refusal to deal and limitations on right to membership of trade associations. The first five of the Chief Justice’s proposals have been embodied in paragraphs (a) to (e) of clause 35 (1.). The sixth proposal - limitations on right to membership of trade associations - has been omitted. I propose that the full list which the Chief Justice proposed, and which the Prime Minister undertook to have in the Bill, should be inserted in the Bill.
It might be thought that it is rather a fruitless hope that Sir Garfield Barwick’s proposals and the Prime Minister’s undertaking will be fully implemented. Yesterday and today I have made attempts to restore the full proposals. I have pointed out from the beginning that the Bill deals merely with trade practices, not, as was held out by the Governor-General, the Administrator, the Prime Minister and by Sir Garfield Barwick in many documents and speeches as well as statements in the House, with restrictive practices and monopolies. I have pointed out that the Government has failed to secure the complementary legislation by the States which Sir Garfield Barwick said was certainly desirable, probably necessary and in any event to be expected. It appears that this complementary legislation by the States has not even been sought. I have pointed out that the Australian Industries Preservation Act had been repealed without any mandate to do so; that it is now to have no effect on interstate trade and trade within the Territories; and this after the High Court in a unanimous Full Court judgment in February last year and in several prosecutions undertaken in Canberra in the middle of this year had shown that the Australian Industries Preservation Act was effective.
I have pointed out that all of the Chief Justice’s proposals for mergers and resale price maintenance have been abandoned; that the Chief Justice’s proposals concerning predatory pricing and monopolisation have been diluted. Those practices were to be inexcusably unlawful. They are now merely to be examinable. I have pointed out that the Chief Justice’s proposals as to the qualifications of members of the Trade Practices Tribunal had been watered down; that knowledge of or experience in economics was no longer to be a qualification. I will later point out that the Chief Justice’s proposal concerning the register of agreements is to be amended by making it completely secret.
– 1 rise to order. Are the honorable member’s remarks related to the clause now before the Committee?
– Order! The Committee is dealing with clause 35, to which the Deputy Leader of the Opposition has moved an amendment. The Deputy Leader of the Opposition is in order.
– I am now attempting to restore Sir Garfield Barwick’s proposal that there should be registration and examination of limitations on right of membership to trade associations. I do not think there has been any subject on which so much correspondence has passed between honorable members and the Attorney-General and his predecessor, now the Chief Justice, as the subject of exclusions and expulsions from trade associations. Everybody knows that it has been impossible for many men to enter or pursue various occupations because they were unable to secure the advantages of selling and purchasing which were available to members of trade associations alone.
Among the proposals which the former Attorney-General, now the Chief Justice, made in respect of this legislation and which he set out for us in August 1963 were mentioned a great many practices which had come to his notice or upon which the Tariff Board or other official bodies had reported. Several of these concerned trade associations. Since Sir Garfield Barwick made this report in August 1963 the present Attorney-General has stated in answer to a question I had on the notice paper that the Tariff Board has, since 1963, reported on many other restrictions imposed by trade associations to the detriment of the Australian public. I shall not detail the nature of the restrictions on membership but I shall recall to honorable members what Sir Garfield Barwick said were the possible detriments to the public interest through these trade associations. They included -
Competition from manufacturers outside the agreement, and the opportunity for new manufacturers to commence or to build up businesses, is reduced by the tying up of the principal reseller and user outlets.
In tying up the principal reseller and user outlets so that those outlets cannot buy from overseas manufacturers, the manufacturers within the agreement are giving themselves the benefit, in effect, of a self-assessed customs duty.
Competition from resellers and users outside the agreement, and the opportunity for new resellers and users to commence or to build up businesses, is reduced by the tying up of the principal sources of supply.
The possibility of price competition between resellers of a manufacturer’s product is excluded.
The manufacturer’s fixed retail price may be fixed by reference to the costs of the least efficient reseller.
The exclusion of the possibility of price competition between resellers removes the incentive for a reseller to pass on to the consumer the benefit of economies achieved in the reselling process. Where the consumer, himself, is a manufacturer who requires the product for the manufacture of another product, the costs of production are increased.
I have read to the Committee the possible detriments flowing from trade associations, details of which Sir Garfield Barwick gave us in August 1963 in a document entitled “ Australian Proposals for Legislation for the Control of Restrictive Trade Practices and Monopolies.” I read the possible detriments flowing from one instance which had come directly to his notice. In the same document Sir Garfield Barwick gave equally convincing details of detriments to the public interest flowing from trade associations in another instance which had come directly to his notice and five instances reported by the Tariff Board and by the 1 Industrial Commission of New South Wales and a royal commission in Western Australia. Finally, Sir Garfield Barwick stated in his document -
The possible detriment of particular practices engaged in by trade associations has been mentioned above. The increasing number of these associations is a pointer to the increasing tendency for these practices to be engaged in Australia.
At that time Sir Garfield Barwick thought there were between 500 and 600 trade associations. Since then royal commissions and other parties interested in this legislation have said that there may be twice that number. At a time when the number of associations is known to be increasing, when the nature of the practices is known to be increasing and when the detriments from them are known to be increasing, the former Attorney-General’s proposal in this respect has been abandoned. In nearly every other case which I mentioned of dilution of or divergence from the Chief Justice’s proposals, the present Attorney-General has failed to justify the departure, the dilution or the divergence. Whether in respect of mergers, resale price maintenance, predatory pricing, monopolisation, the repeal of the Australian Industries Preservation Act or failure to secure complementary State legislation, the Attorney-General does not explain his departure or justify his betrayal.
– Order! The honorable member’s time has expired.
.- Initially, I find myself a little in sympathy with the Deputy Leader of the Opposition (Mr. Whitlam). This clause deals with agreements between competitors containing certain restrictions. The Deputy Leader of the Opposition dealt with limitations of rights to membership of associations. This is a problem that has exercised my mind for some time. I am certain that there is some logical explanation to cover the point made by the Deputy Leader of the Opposition. For instance, a type of practice about which I am concerned has to do with new Australians manufacturing furniture in this country. On approaching retailers of high order in this country with a view to selling their wares, these manufacturers have found that unless they are members of a particular furniture builders association they cannot market their product. This is wrong. It is a bad thing and it is my belief that this Bill aims to overcome just this type of problem. Examples of this kind are legion. The overcoming of this problem is paramount in my mind when I give my support to the Bill as a whole.
The second example of a practice about which I am concerned has to do with the manufacture of binder twine and its supply to retailers in major selling centres. This is a matter that vitally affects primary producers. Many honorable members will be aware that when certain retailers seek supplies of binder twine or similar material they come up against a trade ring that refuses them supply. Here restrictions are placed by these trade associations on the normal retailers of supplies necessary for primary producers. This practice leads inevitably to an increased import bill.
In the two cases I have cited retailers, after their normal supplies have been restricted, have applied for permission to import similar materials and have succeeded in obtaining supplies of those materials. This strikes me as being very wrong in many ways. For example, the size of the market available to Australian manufacturers is obviously limited, so that economy of scale cannot apply and the price per article must increase.
I trust that these are two examples of the kinds of cases the Deputy Leader of the Opposition (Mr. Whitlam) was referring to a little while ago. I imagine that because this Bill is the kind of bill it is, and because the philosophy behind it obviously aims to prevent this malpractice, there is quite a simple and easy answer, but I ask the Attorney-General (Mr. Snedden) to let me know the answer because offhand I cannot see it at this stage.
– I want to support the remarks of the honorable member for Angas (Mr. Giles). What has puzzled me throughout this debate is the fact that the AttorneyGeneral has not attempted to explain in a lucid and understandable fashion why the Government has abandoned the original proposals put forward by the Chief Justice, Sir Garfield Barwick. This has had me completely puzzled. I suspect that the AttorneyGeneral (Mr. Snedden) himself is personally very unhappy with the decision of the Cabinet to ride roughshod over the original decisions or Sir Garfield Barwick. I heard the speeches made by the honorable gentleman when he was in the back benches and when he outlined in a most eloquent, lucid and fluent way to the Parliament the terrible injustices, wrongs and evils of the restrictive trade practices that were going on. I used to look at the honorable member when he made those speeches and think to myself: “ If only he could become Attorney-General one day, if only this gentleman could be given power to give effect to his beliefs and opinions on private enterprise and restrictive trade practices, this would be a lot better country in which to live.” Now we find that he has the portfolio but not the power. He is not allowed to sit in the Cabinet. I suspect that the Prime Minister (Sir Robert Menzies) looked at the honorable gentleman when he appointed him to the Ministry and thought: “This man’s ideas are too dangerous for us to have him inside the Cabinet. We will keep him out of the Cabinet while we inside it, with the Ian Potter complex, will make the decisions. He will then carry out the proposals that we agree to. This will guarantee that the dangerous thoughts entertained by the honorable member when he was on the back bench will never be given concrete expression and the public will never get the benefit of them.”
I started off by saying that I agreed with the honorable member for Angas when he said that the Attorney-General had never given a satisfactory explanation of the abandonment of this proposal. Another matter that has puzzled me - and no doubt it has also puzzled the honorable member for Angas because he is an alert gentleman - is that not one single member of the Country Party has so far spoken on this Bill, and not one member of the Cabinet bas so far participated in the debate.
– That is totally wrong.
– Which one participated.
– The Minister for Shipping and Transport.
– He is not in the Cabinet. I said that not one member of the Cabinet has so far spoken on the Bill. But I want to turn at once to the other point made by the honorable member for Angas when he referred to the position of migrants coming here and desiring to enter certain fields of activity. The honorable member mentioned the furniture trade.
– They cannot get trade certificates because the union will not allow it.
– I beg your honour’s pardon?
– They cannot obtain trade certificates because the union prevents them from doing so.
– I want to quote from a document which has the title “ Australian Proposals for the Control of Restrictive Trade Practices and Monopolies “. We no longer have any proposals for the control of restrictive trade practices, but only trade practices, and we have abandoned the proposal of the Chief Justice for the control of monopolies. Let me quote from this document which was published under the authority of the Chief Justice. It contains the G. L. Wood Memorial Lecture for 1963 which was delivered at the University of Melbournt on 16th August 1963. This is what the Chief Justice said about the point raised by the honorable member for Angas. It is germane and rather important at this stage of the debate.
Order! I remind the honorable member that the matters which are being discussed in this Committee at this moment are not under the authority of the Chief Justice and that the Chief Justice has nothing to do with them.
– Very well, Sir. Then I will not quote the first paragraph I had in mind but will go on to deal with the point raised by the honorable member for Angas relating to the furniture trade. The Chief Justice said -
An example of this kind of sociological problem was recently commented upon by Mr. Justice Travers of the South Australian Supreme Court when sentencing a Dutch furniture maker convicted of having unlawfully avid maliciously set fire to his furniture factory with intent to injure or defraud. His Honour stated that the prisoner appeared on the facts before the Court to have suffered treatment by a trade association which was harsh and unfair. His Honour went on to say that if a man was producing a good-quality article and his commercial practices were clean, his right to trade should not depend on whether any particular association was prepared to grant him the privilege of membership. Referring to the fact that the rules of the particular trade association there involved made a migrant to Australia ineligible for membership until 10 years after naturalisation, His Honour said “ A migrant to this country is eligible to become Prime Minister the day after he is naturalised, and can get himself elected. It seems very harsh indeed that a migrant should not be eligible for membership of a trade association, whatever the qualities of his work may be, until 10 years after naturalisation.”
What a shocking thing it is that when a trade association is permitted to impose conditions of this kind upon persons coming to this country we in this Parliament should be asked to abandon the proposals of Sir Garfield Barwick to prevent such practices happening.
– Trade unions exist.
– I am glad to have the interjection from the honorable member for Isaacs, who comes from Melbourne, because the honorable member will remember that similar restrictions are imposed upon people seeking to become members of the Melbourne Stock Exchange. Their religion and their race, as well as other matters, are considered and analysed, and unless they comply completely with all the conditions laid down by the members of the Melbourne Stock Exchange they cannot become members of that organisation. This is another example of the kind of restriction about which we are complaining.
I think the Deputy Leader of the Opposition made a very strong point when he said it was entirely wrong that we should have abandoned the original proposals of
Sir Garfield Barwick to make trade agreement examinable. Of course they should be examinable. Having dealt with the furniture trade I want to refer now to the fibrous plaster industry in South Australia. I am sure that the position would be similar in all other States because the suppliers of gypsum are located in Melbourne and they would supply the trade in the other States as well. The suppliers of gypsum will not make gypsum available to any fibrous plaster manufacturer who cuts the price of the product. Can anybody justify this? Is not this a reprehensible kind of thing? ls not this the sort of thing we ought to be preventing?
Let me mention yet another field of restrictive trade practices - the liquor trade industry. In South Australia for years we were denied the opportunity of having counter lunches because the Licensed Victuallers Association, in cahoots with the brewers - and there is only one brewery in South Australia - decided that any hotel keeper who dared to put on counter lunches would be denied beer supplies. Is this sort of thing going to be allowed to continue without any attempt by the Government to stop it? Can anybody justify it? Of course not. Although Sir Garfield Barwick saw the wickedness of the thing, the Government has now abandoned Sir Garfield’s original proposals to stamp out this evil practice simply because of pressures from sources about which no-one is prepared to speak openly. I hope, Sir, that the people on the Government side who claim to be completely free from party discipline will at least catch up with their consciences on this matter and vote as their consciences dictate. If they do that they will accept the proposal now before the Committee.
– I was most interested in the speech of the honorable member for Hindmarsh (Mr. Clyde Cameron) - this modern Daniel come to judgment. I understand that he has at various times of his notable career been a member of the Australian Workers Union - another trade association.
– We get fined if we go on strike or we get put in gaol.
– I am noi talking about going on strike. I am talking about trade associations. The honorable member was criticising trade associations for certain restrictive practices. Certain of the criticisms he made may be correct; but who is the man who is making the criticisms? He was an important person in the Australian Workers Union. Not so very long ago I visited an abattoir in the north west of Australia. The leading slaughterman was a person not entirely of European blood. He was not allowed to be a member of the Australian Workers Union because he was not a new Australian or a partly new Australian. He was an original Australian.
– That is contrary to law.
– It may be contrary to law, but that was what was done by the Australian Workers Union of which the honorable member was an important member. I hope that his conscience will catch up with him and that this modern Hercules will cleanse his own Augean stables before he starts on other people.
.- I should like to make an appeal to the Attorney-General (Mr. Snedden) on this matter. We have had a number of submissions made in relation to this clause as to why the sixth item which was in the previous Attorney-General’s original catalogue has not been included. I do not know what technique the present Attorney-General adopts with respect to this debate but I am sure that, as the honorable member for Angas (Mr. Giles) suggested, it would save a certain amount of argument if the Attorney-General were to reply immediately to proposals that are made. I do not think the debate is any better because more, rather than fewer, people speak. We still have a long way to go to get to the end of this Bill. I believe that the debate would be improved if, when a genuine question is raised on either side of the Committee, the Attorney-General were to give an answer immediately. He is not in the same position as the rest of us who are able to speak only twice on a clause. He can talk on any clause as often as he likes.
I suggest that the Attorney-General would save a lot of bother if he would indicate immediately what his attitude is. After all, I can understand that some honorable members on this side of the chamber may be in some doubt as to why certain things have been eliminated from the Barwick proposals, but from what the honorable member for Angas has said he also is in doubt - and he is on the Government side - as to why certain changes have been made. I think that the debate could be short circuited and that it would be much more effective if, when genuine queries are raised, the Attorney-General would give his views as soon as they are raised. The diversionary tactic of my friend from Chisholm (Sir Wilfrid Kent Hughes) in raising the matter of trade unions might be very good politically, but I think we are all agreed that trade unions do not come within the ambit of this legislation.
– The union he mentioned - the Australian Workers Union - is applying to the Commonwealth Conciliation and Arbitration Commission for award wages for Aborigines.
– I am not going to enter into any argument on that. All I am saying is that trade unions do not come within the scope of this legislation. I hope that the Attorney-General will accept the suggestion I have made. When a genuine query is raised he should reply to it. He should state whether he is going to accept an amendment or not, and if not he should state why. I think the debate would proceed much more expeditiously if he did that.
.- The Deputy Leader of the Opposition (Mr. Whitlam) and the honorable member for Hindmarsh (Mr. Clyde Cameron) have complained that something which was contained in the proposals made by Sir Garfield Barwick has been omitted from this Bill. A similar complaint was made in connection with another clause. It is no good their saying that, unless they go on to say what is in the Bill. The matter about which they are complaining is dealt with in the Bill and they entirely overlook that fact. They simply say that what was proposed by Sir Garfield Barwick has not been reproduced in the Bill in a particular form. We all know that one of the difficulties about associations is that a person can be refused supply because he is not a member of a certain association. On the other hand, if a person tries to join the association he may be refused membership because the association already has sufficient members covering the area in which the person carries on business. That is a difficulty in relation to associations and it is a difficulty with which this Bill seeks to deal in clause 36(l.)(c). The point is dealt with expressly. It is not the mere existence of an association that is the difficulty. There is no point in prescribing the association, which is what the amendment would do. On reflection the thing to do is to deal with the evil, and that is precisely what this Bill does. It does not help the debate simply to refer to Sir Garfield Barwick’s proposals and, without bothering to look at the Bill, say that something has not been carried out. That is what has been done on several occasions; it is a waste of time.
The only other thing I wish to say has relation to the form of the proposed amendment. It seeks to make an agreement examinable if the constitution of a trade association contains a restriction with respect to the right of persons to become or remain members. Associations are voluntary associations. I cannot recall one association that does not impose some conditions as to membership. An association would be senseless if it did not have conditions as to membership. As there are restrictions in every association, if this amendment were carried it would make the membership rules of every association an examinable agreement and the whole system would collapse under its own weight.
.- The honorable member for Parramatta (Mr. Bowden) suggested that the terms of the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam) would proscribe trade associations. They would do nothing of the sort. They would merely bring them within the spotlight of the processes under this Bill, and bring the trade association under examination if restrictions on the right either to become or to remain a member of the association were included in its constitution. I think that is very fair and reasonable.
More than that; when we consider the whole question of collective price maintenance, we will find that it is mostly achieved in this country is through trade associations. There are very few commodities in Australia which are not in some way affected by collective price maintenance. We have it on the authority of Professor Richardson who, in turn, was quoting the words of Mr. Heath, of a former Government of the United Kingdom, that of every £1 spent by a consumer in Australia 8s. is spent on goods which are subject to price control and, as a result, to collective price maintenance in some form. If it will temper the enthusiasm of the Government for this particular clause of the Bill, it is noteworthy that 5s. out of that 8s. is not dealt with by this particular clause because that 5s. is the subject of retail price maintenance on a vertical basis.
Reference has already been made during the debate on this measure to the number of trade associations which are in existence. This clause relates to five qualifications which might be termed basic practices. A basic practice can take various forms and the one that is most important in relation to the proposed amendment is exclusive dealing. Exclusive dealing can take many forms, lt can be exclusive selling. It can be an agreement to sell only .through the members of particular wholesaling or retailing associations. It can take the form of exclusive buying arrangements such as an agreement to buy only from a particular group of manufacturers. In contradistinction to basic practices are the means by which they are enforced and that is where the particular drive of this amendment is significant. There are at the present date at least 1,200 trade associations, of which two thirds are reputed to be engaged in some form of price rigging or price control. The enforcement techniques vary. The simplest is, of course, that having admitted applicants to the charmed inner circle of the association, if there is some erring member of the flock an approach is made by the secretary or inspector of the association and he says: “Look, old boy, you are letting the side down. You cannot continue this practice or we will have to report the matter and take action “. If that does not succeed the screws are given a further turn and then the members of the committee of the association may come into the picture and may decide to take more positive action. They might, for instance, decide to withdraw association rebates. They may decide to impose fines under the terms of the constitution of the trade association. If that is not effective, they may go further, and there is, of course, the weapon of expulsion. Trade associations are notoriously like the Australian cricket eleven. They are harder to get out of than to get into. Expulsion of members from the ring can lead to dire consequences because if a man is expelled he may become a maverick and may cause endless complications.
There are further subleties that can be applied. They may take the form, for example, of an agreement to withhold supplies. They may take the form of reporting to some supplier the shortcomings of this particular defaulter. There may be another subtle way of dealing with the matter. It may be dealt with, not by letter, but by telephone call, or by various other forms. Finally, there are negative ways in which the same result can be achieved. In relation to expulsion, lists are circulated, and this is notorious in certain sections of the motor trade. White lists, not black lists, are circulated. The black sheep are not identified but the white sheep - those whose hands and noses are still clean - are listed. The inference, of course, is that the others are in the dog house and can be dealt with accordingly.
Quite apart from that aspect, I feel I should quote the words of Professor Richardson. He made a notable contribution on the whole question of restrictive trade practices in the “ Canberra Times “. He quoted from Adam Smith’s “The Wealth of Nations “. He prefaced his quotation by stating -
Uniform prices usually result from collective arrangements between those who supply the goods or services. Adam Smith once said in “ The Wealth of Nations” . . . “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the police, or in some contrivance to raise prices.
While Adam Smith’s assertion does less than Justice to the moral standards of Australian business men, the point ls that agreed pricing policies are a common feature of the Australian economy.
That statement is very well made indeed. Quite apart from trade associations there are other aspects of this Bill that deserve serious consideration. What is an agreement? Just how far does the definition of agreement in clause 91 of this Bill catch all arrangements with the net? If the experience of the Trade Practices Court in England amounts to anything, it certainly does not because the subtleties and refinements which have been introduced in that country show all kinds of loopholes which can be worked, and what appears to be an agreement may be nothing of the sort. I think one of the best examples is in the work of Professor Richardson. I will quote again from his series of articles in “The Canberra Times “. With regard to examinable agreements he said -
Here a real difficulty arises because the parties may, instead of having a formal or informal agreement between themselves, tacitly follow the trading arrangements such as pricing of the leading firm in the group.
That of course, is covered by white lists. He continued -
The definition of agreement in the Bill does not seem to be wide enough to prohibit this practice known in the United States as “conscious parallelism.”
One way of dealing with the problem is to extend the definition so as to enable the Tribunal to infer from the facts that a situation exists which is a substitute for an agreement, and then to deal with it as though it were an agreement containing a restriction.
Whether it be by telepathy, empathy or intuition it is quite possible for plenty of traders so to arrange their affairs and supplies to one another that they can subvert every principle of this legislation.
.- I desire to support the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam). Again, on this clause, as on the others, I ask why the Government seeks to go round the findings and the submissions of the former Attorney-General, Sir Garfield Barwick. Most of the proposals brought down have completely rubbished those of the present Chief Justice of Australia and most of the criticism from the Government side of the Parliament has come from emminent members of the legal profession such as the honorable member for Parramatta (Mr. Bowen). I do not wish to take anything away from the honorable member for Parramatta but I think that Sir Garfield Barwick could leave him for dead in a court of law any day of the week, constitutionally or otherwise. If Sir Garfield Barwick said that certain proposals should have been incorporated in this legislation, then with due respect to the honorable member for Parramatta and my learned and distinguished friend, the honorable member for Parkes (Mr. Hughes), I would take the view of the Chief Justice of Australia any day.
The Attorney-General (Mr. Snedden) might well tell us why he has gone completely round what the former AttorneyGeneral submitted to this Parliament. Let us examine this matter. The Minister for Shipping and Transport (Mr. Freeth) in 1962 was given authority to say in this Parliament that there would be in this Bill all that was necessary in order to control restrictive trade practices. He made one of the best speeches he has ever made because it was written for him by somebody else. -In this speech, delivered on 6th December 1962, he said that he expressed personally the views of the present Chief Justice of Australia on elements of the scheme. One matter that he mentioned was -
Limitations on right to membership of trade associations.
He gave a list of practices which would be required to be registered. There were five other practices in that list. This was the sixth. The other five are included in the Bill. But this sixth one, which the Deputy Leader of the Opposition by his amendment seeks to include, has been eliminated. Does not that prove that the Government is sham fighting? We have seen opposition to this legislation, which should be agreed to almost unanimously. We have seen members of the Country Party as silent as the grave. They refuse to support members of the Liberal Party in their fight against this legislation. We have seen members of the Cabinet refusing to support the AttorneyGeneral. As the Minister for Supply (Mr. Fairhall) did in his letter in respect of the wool reserve prices plan referendum, they want to rubbish this legislation and to beat it if they possibly can.
I suggest that the Attorney-General should tell us why Sir Garfield Barwick’s submission on this point is not incorporated in this legislation. Why does the AttorneyGeneral oppose the amendment moved by the Deputy Leader of the Opposition? Sir Garfield Barwick, in dealing with the matter that is now under discussion, did not make idle submissions to the Parliament. He never did that. He was a great asset to the Liberal Party. Why it got rid of him is beyond my understanding. It could well do with him now. When we consider the efforts of the present Attorney-General and see the contempt with which his views are treated bymembers of his own party, we realise what an asset to this Parliament the present Chief Justice of the High Court was.
– Order! I remind the honorable member for Grayndler of the comment that I made to the honorable member for Hindmarsh. The Chief Justice of the High Court is not responsible for any of the legislation that is before the Committee. I suggest that honorable members avoid reference to the Chief Justice.
– I suppose, Mr. Chairman, that, as you have been so over-whelmingly upheld by honorable members, it would not be right to dispute your ruling. I think I would be in order in referring to the former Attorney-General. The former Attorney-General did not idly present this legislation to the Parliament. Before he did so, he considered investigations of trade associations. One such investigation was the inquiry by Mr. Justice Richards into the timber industry in 1955. Sir Garfield also considered an investigation made by a Western Australian royal commission in 1958, and inquiries into automotive parts and timber millers and merchants in 1960. The present Attorney-General, at the request of the Deputy Leader of the Opposition, gave answers on the Tasmanian royal commission of 1965 and on the Tariff Board inquiry of August 1963 in respect of tiles.
Now we see submitted to this Parliament in this Bill a clause which completely disregards the inquiries made in respect of those associations. Why has the Government sidestepped the issue? Have the powerful interests behind the Government decided that the proposals put forward by the former* Attorney-General cannot be incorporated in this legislation because that would make it effective? Is there a sinister motive behind this? Does not the Government want this legislation to work? If the Government [really wants it to work, why cannot the Government accept the amendment that Was moved so ably by the Deputy Leader of the Opposition?
There are about 1,200 trade associations in this country. Unless one can get into those trade associations, he cannot exist as a business or industry. The trade associations control not only a person’s future in the industry - whether he will survive or not - but also the prices at which the consumers shall buy and generally the prices at which the commodity, or whatever is involved, shall be available to the public. I suggest to the Attorney-General that there is real substance in the amendment that has been moved by the Deputy Leader of the Opposition, particularly when the former Attorney-General - a much more notable member of this Parliament than any present Government member of it - incorporated this point in his scheme because he believed it was necessary in order to give justice to the Australian community.
I would like the Attorney-General to tell me whether the agreement that I mentioned yesterday - an agreement between the Australian Oversea Transport Association and 22 shipping companies, which completely ties up freight rates and everything else associated with the export of Australian products, particularly primary products, and which is one of the most vicious agreements of its kind - would come within the scope of this legislation. I wonder whether members of the Country Party will stand up in their places and defend the Government for not bringing an agreement such as that within the scope of this legislation.
I suggest that the Attorney-General has no answer to the submissions that have been made from this side of the Committee on the amendment that has been moved by the Deputy Leader of the Opposition. I suggest that the Attorney-General has given no assurance to the Committee that, by rejecting that amendment, he will provide protection for the people who want it against the 1,200 trade associations and various other organisations which control prices and the welfare of people in industry. For petrol, tyres and those kinds of things we pay the same prices everywhere. Of course, it is too much to hope that the Attorney-General will even attempt to attack the breweries under legislation of this kind. He would probably say that that is a State matter and does not come within the jurisdiction of the Commonwealth.
All in all, this clause in particular, as the honorable member for Hindmarsh (Mr. Clyde Cameron) said a few minutes ago, is a sinister attempt by the Government to give the impression that it is trying to do something, whereas it is hoping that it will fail. Tonight, in the few brief minutes at my disposal, I say that we have no assurance from the Government that it even wants this legislation to work. This legislation is a completely watered down version of the scheme that the former AttorneyGeneral suggested. One charge which can be levelled against the Government, if no other can, is that the former AttorneyGeneral - a very able man and one of the best lawyers ever to enter this Parliament - said that the point contained in the amendment that has been moved by the Deputy Leader of the Opposition should be included in this legislation, and the Government has decided that it will not be included. The Government elevated the former AttorneyGeneral to a higher status so he would not be here tonight to put this legislation through this chamber. The reason why the Government has not incorporated this point in the legislation is that it is seeking to water down the original proposal. Half the members of the Liberal Party do not support this legislation, and the members of the Country Party have no views at all on it, one way or the other. We could not expect anything else.
– Order! Before I call the next speaker, I point out that there is a very grave danger of some honorable members transgressing Standing Order No. 85. I suggest that honorable members give some consideration to that Standing Order.
.- The honorable member for Parramatta (Mr. Bowen) implied that I had not fully or accurately stated the proposals which Sir Garfield Barwick made three years ago concerning the registration of limitations on right to membership of trade associations.
– I said that the honorable member had not gone on to see what was in the Bill.
– Very well. I think I can meet’ the objection that the honorable member made. When I spoke for the first time in support of my amendment, I pointed out that Sir Garfield Barwick had proposed that there should be registration of six multilateral or horizontal arrangements and of four bilateral and unilateral or vertical practices. The present AttorneyGeneral has varied that scheme by providing that the practices are to be examinable but not registrable, but that the arrangements are to be both examinable and registrable.
It is true, as the honorable member for Parramatta said, that trade associations are mentioned in this Bill. They are mentioned in a subsequent clause. They are mentioned as incidental to practices which do not have to be registered but which are examinable. Sir Garfield Barwick listed trade associations among the arrangements. The other five arrangements that he listed are both examinable and registrable. The adoption of my amendment would ensure that limitations on right to membership of trade associations would also be examinable and registrable. It is not true to say, as the honorable member for Parramatta inferred, that we have been glibly saying that Sir Garfield Barwick proposed certain things and then have not been stating where else those things are mentioned in the Bill. There is no amendment which I have moved and in respect of which I have invoked Sir Garfield Barwick’s name without referring to what he proposed in the context that he proposed. If honorable members want me to be precise on this, I recall to them the fact that nowhere in this Bill appears any of the proposals that Sir Garfield Barwick made concerning mergers and takeovers.
– I rise to order. Is it correct, Sir, that you ruled that the name of Sir Garfield Barwick should not be used and that he should be referred to as the former Attorney-General? I suggest that if you so ruled the Deputy Leader of the Opposition is contravening your ruling.
– Order! I did not rule as the honorable member has suggested. I stated that the Chief Justice as such should not be associated, with this debate. It was in that context that I suggested to two previous speakers that the gentleman who was associated with the measure formerly proposed should be referred to as Sir Garfield Barwick or as the former Attorney-General.
– Mr. Chairman, refuting specifically the general allegation made by the honorable member for Parramatta I point out that there is no reference anywhere in this Bill to resale price maintenance which Sir Garfield Barwick proposed to include in his legislation on restrictive trade practices and monopolies. There is in this measure a reference to repeal of the Australian Industries Preservation Acts of certain years, which Sir Garfield Barwick did not propose. I was entitled to refer to his proposals to secure complementary State legislation. This has not yet been achieved and, according to the Victorian Ministry, may not even have been sought by the Victorian Government. It is true that I mentioned proposals by Sir Garfield Barwick concerning predatory pricing and monopolisation being made offences. This Bill will make them merely examinable. It will not make them offences. It is true that Sir Garfield Barwick mentioned both matters, and it is relevant to point out that he mentioned them in a context completely different from that in which they are dealt with in this Bill..
I have referred to Sir Garfield Barwick quite often during the consideration of this measure in Committee because it was his proposals that were put to us in this chamber by the present Minister for Shipping and Transport (Mr. Freeth) three years ago. Sir Garfield Barwick’s speeches and papers delivered at law conferences, at the University of Melbourne and elsewhere were circulated among honorable members and are still available to them and to members of the public. He considered that limitations on the right to membership of trade associations should be among the multi-lateral horizontal arrangements which required not only examination but also registration. We on this side of the chamber agree with him. We are entitled to put to a vote the proposal that the constitution of a trade association should be registered if it contains restrictions on the right of membership of the association concerned. We are entitled to point out that this is a proposal that Sir Garfield Barwick had put to us in this chamber three years ago. My amendment is designed merely to effectuate his proposal.
– Mr. Chairman, I want only a couple of minutes of the Committee’s time. I would not have said anything at this stage had it not been for the the honorable member for Chisholm (Sir Wilfrid Kent Hughes) who twitted me about an organisation of which I was once a member having imposed certain restrictions on the right of people of non-European origin to join that organisation. The honorable member was not correct. Section 144 of the Conciliation and Arbitration Act clearly prevents a union from excluding people because of their race. The honorable member unfortunately is no longer here. He is like the boy who pulled the chain and ran away so that it would not be known that he had used the toilet. I hope that the honorable member will read what I have to say. Section 144(1.) of the Conciliation and Arbitration Act reads -
A person employed in connection with an industry or engaged in an industrial pursuit, is, unless he is of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted m a member of an organisation . . . and to remain a member so long as he complies wilh the rules of the organisation.
That is the law. No union has the right to preclude a person of non-European origin from membership on that ground alone. I do not believe that the Australian Workers Union does preclude membership of nonEuropeans as the honorable member for Chisholm claimed. It is a long time since I looked at the Union’s rules, but I do not believe that they preclude non-Europeans from becoming members. If they do they are invalid.
– And the Commonwealth Industrial Court can declare them invalid.
– The Industrial Court could declare them invalid or alternatively a person who was a member of the Union could ask for its deregistration if it sought to impose on its members a rule or practice that’ was invalid.
– Mr. Chairman, this debate has ranged over a number of topics. In saying this, 1 make no reflection on you, Sir. I believe that you have correctly allowed the discussion to range fairly widely. I have no doubt that the wider range of debate that has just occurred will allow us to shorten the discussion on some of the other provisions that will be before the Committee subsequently. I deal now specifically with the amendment proposed by the Deputy Leader of the Opposition (Mr. Whitlam). I understand why he has proposed it. He has done so for two reasons. The first is that he considers that this Bill should have adhered to all the proposals of my very distinguished predecessor, Sir Garfield Barwick. The second reason is that the honorable member sees trade associations as the vehicle of a great number of restrictions. In that sense, my friend, the honorable member for Angas (Mr. Giles), sees the same thing.
Let me deal with these matters one after the other. In the first place my distinguished predecessor, Sir Garfield Barwick, published through the agency of my friend, the Minister for Shipping and Transport (Mr. Freeth), his proposals. Those proposals were made in the form that they took for two purposes. The first was to see just how Sir Garfield Barwick’s proposals were oriented in the pattern of Australian trade and commerce in which they were to operate. The second purpose was to enable Sir Garfield himself to receive representations and to make such changes as he thought necessary. Representations were made to the effect that the registration of trade associations would constitute an unnecessary imposition. I am sure that my distinguished predecessor would have reached the same conclusion that the Government and I reached - that it was unnecessary to require registration or, indeed, examination of the constitution of a trade association.
The reason is that such associations play a most important part in our way of life. All forms of association are important. But trade associations are particularly important because they bring together people engaged in trade and commerce who have a common purpose, who require the transference of information between them, who may through joint enterprise engage in research and who may come together to make representations to governments or to present evidence, for example, to the Tariff Board. In all these activities trade associations play an important part in our community. Nobody would wish to see any deleterious effect on those functions. Registration of the constitution of any association because there are limitations on the membership of that body would inevitably have deleterious consequences. Indeed, it would require something that was unnecessary. As I pointed out, registration is a fact finding process and there is need to find facts in relation to this. I am quite convinced that my predecessor would have reached the same conclusion as has the Government and as I have as reflected in the Bill.
Let me come to the second point made by the Deputy Leader of the Opposition and the point made by the honorable member for Angas. If a trade association is the vehicle of restrictions, the restrictions themselves will be subject to examination before the Tribunal and, if against the public interest, will be stricken down. So there would be no purpose in the trade association putting a restriction on the membership for purposes of the trade restriction. On the other hand, a trade association ought to be free to say that it will not take red headed men because it does not like red headed men or, as the honorable member for Parkes (Mr. Hughes) has pointed out, it may say: “You cannot be a member or continue to be a member unless you pay the entrance fee and the annual subscription “. It is entirely a matter for the association to decide who will and who will not be a member of the association. What is not desirable is that the trade association be used as a vehicle for restriction. If it is so used as a vehicle for restriction it is, by the basis of the Bill, an agreement which would be examinable and, if it is contrary to the public interest, it will be stricken down. If I am any judge of a trade association, it would welcome all the members that it could attract to the association, if there was no purpose in restricting members simply because the purpose in restricting them was in order to prosper a restriction.
Question put -
That the amendment (Mr. Whitlam’s) be agreed to.
The committee divided. (The Chairman - Mr. P. E. Lucock.)
Majority . . 9
Question so resolved in the negative.
– I move-
In sub-clause (2.), omit “or are likely to become,”.
Those words appear in the third last line of sub-clause (2.) and refer to the words “ two or more businesses “ appearing on the first line of the sub-clause. It is proposed to delete the words “ or are likely to become “ because it may be that there is an agreement between two or more businesses which, in the foreseeable future, could become competitive. They enter into an agreement which may, therefore, be required to be registered whereas at this point of time there is nothing in the agreement which makes it desirable that it be registered and so become examinable. The important thing is that if the businesses do become competitive in the future then, at that point of time, the agreement will be required to be registered and so become examinable. For those reasons, I should say that the words which I propose deleting ought properly to be deleted.
.- I quite agree with the proposal. This seems to be a very sensible deletion, but I point out that further down in the same subclause we find the words: “or would be likely to become “ repeated.
– They are not repeated. Those words refer to a different thing.
– That is what I wanted to ask. The Attorney-General has explained that the words which he proposes to delete refer to cases relating to two or more businesses which are likely to become competitive. Will he explain to me why the words: “ or would be likely to become so “ are retained later in the sub-clause?
.- The words used later relate to an agreement. The clause says: “ But for any agreement . . . would be likely to become so competitive”. Where the words are used earlier, they refer to two or more businesses. The words are used in a different sense.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 36. (1.) Subject to this Part, practices of the following kinds on the part of a person in the course of carrying on a business are in this Act referred to as examinable practices: -
inducing or attempting to induce another person carrying on a business to refuse to deal with a third person, or to refuse to deal with a third person except on terms disadvantageous to the third person, where the person inducing or attempting to induce -
– by leave - I move -
As to the first of these proposals, I make the concession, with due respect to my friend, the Parliamentary Draftsman, that the words were included in error. It is necessary to take out the words mentioned in the first amendment because, obviously, a trade association cannot be carrying on business. The next is a companion and consequential amendment to the first one. The three amendments flow from a drafting requirement.
Amendments agreed to.
.- by leave - I move -
The main purpose of the first amendment is to widen further the scope of the clause. As it reads at present, concessions which are extorted by a threat or promise only are those which are covered by the paragraph. If a supplier merely chose to grant more favourable terms than those that he was prepared to offer others he would, as the clause stands, remain outside the scope of the Bill. The Opposition considers that he should be included.
My second amendment is of the utmost importance. At present, with the clause as it stands, it is possible for a major chain store or group or firms to use their collective buying power to obtain concessions in either price or terms of purchase. They extort the concessions by reason of their size and buying power. That advantage can be used to the detriment of their competitors and particularly to the detriment of smaller - tores or smaller groups of stores. The intent of this amendment is to ensure that smaller stores or groups of smaller purchasers can get exactly the same advantage collectively as is conceded to their major and, in the main, monopolistic competitors. The amendment follows the text of an amendment moved in 1960 to the Canadian Combines Investigation Act. It is noteworthy that in Canada the offence is indictable- quite a distinction from the treatment we propose. We consider that the time has arrived in Australia where we really need to protect the small storekeeper or the small businessman against the advantages that are obtainable by the major commercial competitors by the use of their buying power.
My third and fourth amendments also deal with another very real evil that exists today whereby it is possible for a vendor or manufacturer to impose upon his clients or purchasers obligations that are far in excess of what might be considered normal, orthodox and moral business practice. The amendments are designed to overcome this evil.
– The Government cannot accept any of these amendments. The reasons were made quite clear in my second reading speech and in my reply at the conclusion of the second reading debate. To accept the first amendment, which is to delete the words “by any express or implied threat or promise “, would mean that any person who sought to induce a supplier of goods to give him a better price than somebody else could have the goods at would be engaging in an examinable practice. It would be wrong to include that in the Bill. It would intrude far too deeply. The shaft would penetrate right into every business activity. If a purchaser of ash trays, for instance, went to the manufacturer and said: “I know you supply your ash trays to everybody else, but I try to induce you now to give them to me at ls. per dozen cheaper”, that would not be an examinable practice. Clause 35 (1.) (a) is not active where he tries to induce better terms for himself; but where his action has the quality of implied threat or promise that makes it examinable.
The next amendment, No. 6, proposes to insert a new clause, which is a clause of discrimination. The Government decided that an individual person would be permitted to discriminate. If he chose to sell to one person cheaper than to another that, in itself, would not be an examinable practice. If, however, he entered into an agreement with others so that in common, pursuant to the agreement, they gave different discounts to different classes of people and discriminated between them, that would be an examinable agreement pursuant to clause 35. When an individual does it of his own will, the Government’s view - this is the basis upon which the legislation was drawn - is that that is not a matter which should become an examinable practice.
The next two amendments, Nos. 7 and 8, make provision in relation to what one calls full line forcing. The Government has decided, in clause 36(l.)(b), that it will make an examinable practice the action of a person who uses the possession of economic power to require another person who receives goods from him to take the goods of an entirely different third party. What the Opposition seeks to do is to prevent an individual from forcing his own full line of products. Let me give an illustration. As the Bill stands at present, if a manufacturer produces pencils and ash trays and says to a person to whom he supplies those articles: “ If you want my pencils and ash trays you must take cigarettes from a nominated company “, that is an examinable practice. But what the Opposition’s amendment seeks to do is this: If a manufacturer makes pencils and ash trays, he cannot say: “ If you want my pencils you must also buy my ash trays “. There is a difference between forcing a third person’s product and forcing your own full line of products. The Government came to the conclusion that you ought not to be able to use power, in the economic sense, to force on somebody else a third person’s products, but that you ought to be able to attempt to force your own range of products. If they are not good enough for the person concerned to be susceptible to your blandishments, he will say: “ I will get my pencils elsewhere “. For those reasons, none of the amendments can be accepted by the Government.
.- I move -
At the end of sub-clause (I.) add the following paragraph: - “ (d) imposing resale price maintenance conditions.”.
This amendment is yet another effort to legislate for all of the proposals which Sir Garfield Barwick put to the Parliament three years ago. Honorable members will mow readily recollect that Sir Garfield Barwick proposed that there should be a register of six multi-lateral horizontal arrangements and of four bilateral and unilateral vertical practices. The Bill introduced by the Attorney-General (Mr. Snedden) has provided for the registration of five of the six multi-lateral horizontal arrangements and for examination but not registration of three of the bilateral and unilateral vertical practices. My amendment, if accepted, will provide for the examination of the fourth bilateral and unilateral vertical practice as promised by Sir Garfield Barwick three years ago. Sir Garfield stated the practice which had to be registered and examined as “resale price maintenance “. My amendment accordingly uses that term.
This is one of the most striking omissions from the Bill. On 20th May last - the day following the introduction of the Bill by the Attorney-General - the Financial Editor of the “Sydney Morning Herald” commented in these terms -
The first really conspicuous deficiency in the Snedden draft compared with its predecessor is typified in the abandonment of action against resale price maintenance.
This is only one aspect of the bill’s apparent neglect in general of the great field of vertical restrictive trade practices - those reaching down from supplier to distributor - as distinct from the horizontal type between ostensibly competing companies.
It was a Conservative Government in Britain that legislated against price fixing last year, Mr. Edward Heath being the pilot of the Act.
The consequent price reductions and enlivening of competition in the United Kingdom have been marked. Even the former critics of the change seem to have been silenced by the actual experience, and one hears practically no objections to the move in the few months of operation.
There are several industries in Australia where numerically competitors hardly exist, and where vertical practices are the crux of the monopoly problem.
It is true that the susceptibilities of Mr. Bolte and perhaps one or two other Premiers had to be considered. But constitutionally it was possible to go a good way regardless of them, as the recent fortunes of the old Industries Preservation Act show. And the Federal authorities could eventually, if necessary, seek powers by referendum.
I hope it will not be asserted that I am moving any proposal here which Sir Garfield Barwick promised but which has been enacted in some other way in the Bill. There is no reference in this Bill to resale price maintenance. There was a definite promise concerning resale price maintenance in the proposals made to the Parliament by Sir Garfield Barwick three years ago. Sir Garfield had stated the nature of the practice and of its detriment to the public in his document “ Australian Proposals for Legislation for the Control of Restrictive
Trade Practices and Monopolies “ - in particular in the tables with which he illustrated his proposals in August 1963. He stated the practice under these three headings -
The reselling of a product at a price fixed by agreement between the resellers.
The reselling of a product at a price fixed by agreement between the resellers and the manufacturer of the product.
A concerted refusal by resellers of a product to buy from a manufacturer unless he withholds supplies from a reseller who is offering competitive prices or terms to the consumer.
Sir Garfield Barwick then went on to state in these terms the detriment to the public interest from those three types of resale price maintenance -
The possibility of price competition is excluded . . The agreed price may be fixed by reference to the costs of the least efficient manufacturer.
The exclusion of the possibility of price competition removes the incentive for the manufacturer or reseller to pass on to the consumer the benefit of economies achieved in the manufacturing or reselling process. Where the consumer, himself, is a manufacturer who requires the product for the manufacture of another product, the costs of production are increased.
I reiterate that Sir Garfield Barwick stated the nature of resale price maintenance and the detriment flowing from it in those terms in August 1963. He was illustrating the proposals which were made to the House on his behalf in December 1962. So long as he was Attorney-General, there was never any suggestion that resale price maintenance would prove too difficult to implement under the proposed Bill. Nor is it difficult to implement. The Conservative Government in Great Britain introduced and passed a Resale Prices Act, which came into effect in July last year. In October this year in New Zealand a Trade Practices Amendment Act came into effect which declared that collective resale agreements were presumed to be contrary to the public interest. The Bill was sponsored by the Deputy Prime Minister, the Minister for Trade, Mr. Marshall. In Great Britain, Mr. Heath who is now Leader of the Opposition brought in the Bill.
– He said “ collective “ price arrangements. The honorable member’s amendment does not refer to collective arrangements.
– It covers collective ones.
– The word “collective” is already included in the Bill.
– I point out that Sir Garfield Barwick made no such limitation. As in all the amendments, I have carefully followed the wording of Sir Garfield Barwick. It should be possible for the Conservative Government in Australia to legislate for resale price maintenance as proposed by Sir Garfield Barwick three years ago in this House; as pursued by him in his speeches, documents and brochures until well into 1963; as implemented by the British Conservative Government in July last year and as implemented by the New Zealand Conservative Government in October this year. There are no difficulties in legislating for the examination of resale price maintenance.
I come now to some comments on this omission from the Bill. Professor Richardson, the Dean of the Faculty of Law at the Australian National University, wrote in the “ Canberra Times “ on 9th November 1965 in these terms -
A few years ago it was estimated that in the United Kingdom about 8s. in every £1 of personal expenditure was spend on goods and services supplied at prices the same for identical items for all customers wherever they were and that about Ss. of the 8s. was accounted for by vertical resale price maintenance.
No one is certain about the situation in Australia - one feature of the Australian economy is the lack of information of such matters - but it is almost certain that the figure of 5s. would be too low for this country.
The Trade Practices Act, 1964, of the United Kingdom has now brought this kind of resale price maintenance under control.
It cannot be lawfully carried on by anyone unless the particular practice is upheld by the Restrictive Practices Court as not infringing the public interest. When the Trade Practices Bill becomes law, however, a single supplier will still be able to fix the resale prices of his goods as a condition of supply.
Professor Maureen Brunt wrote on this subject in the September 1965 issue of “ The Economic Record “. She said -
It seems that there may also be an important implicit exception arising from the practice of resale price maintenance. Not infrequently tenders are received from distributors who obtain their supplies from a sole manufacturer. Since individual resale price maintenance is not covered by the Bill, common tenders will still be received. The Bill prohibits only “ agreements “ on tendering and bidding, and distributors’ adherence to a manufacturer’s price is unlikely to be held an “agreement “. Indeed, it is conceivable that the simultaneous use of resale price maintenance by a number of manufacturers could offer a serious loop-hole to the intentions of this part of the Bill. . . .
But it may be questioned whether the coverage and emphasis are appropriate when individual resale price maintenance is omitted and vertical practices are played down. Even a selective regulation of business conduct should give resale price maintenance high priority and should fasten upon certain vertical practices.
Individual resale price maintenance is a widely used practice which is questionable in itself. But more than this, it can be used to buttress the parallel behaviour and collusive activity of trade associations. Collusive tendering is one instance of this. Another instance is the informal policing of resale price maintenance by associations of distributors, yet another all those informal representations and pressures which members of a trade association may use on a manufacturer. More generally, the problem of resale price maintenance is part and parcel of the problem of price agreements; to exclude the practice from the Bill is to propose legislation which is inefficient as well as inconsistent.
Many restrictive trade practices are omitted from this Bill. There is no reference to export franchises. Admittedly, Sir Garfield Barwick did not promise any legislation on export franchises, but many agreements and practices which Sir Garfield Barwick proposed to include are omitted from the Bill. There have been many modifications of the treatment of agreements and practices which he proposed to include. There is no more serious variation or dilution of his proposals than the omission of a provision concerning resale price maintenance. From the very day on which the Attorney-General introduced his Bill this omission was noticed and deplored by all the financial editors, ail the economists and all the academics. Their views remain the same to this day. There is all the less excuse for omitting Sir Garfield Barwick’s proposal on this matter since the Conservative Governments in Britain last year and in New Zealand this year have found it possible, in fact necessary, to legislate against resale price maintenance.
The advantage to the public in reduced prices of legislation against resale price maintenance is quite clear. In Britain there was considerable opposition in the House of Commons last year among Conservative members to Mr. Heath’s bill. No politician in Britain now would repeal that bill. There is always difficulty with conservative members when a bill to curb restrictive trade practices is introduced. This is a clear case in which the sights have been lowered, Sir Garfield Barwick’s proposals have been diluted and the public interest has been betrayed.
.- I would like to ask a question of the AttorneyGeneral about some things that have been said. Perhaps his answers can throw some light on the debate. I have listened very carefully to the Deputy Leader of the Opposition (Mr. Whitlam). He has made several statements regarding Sir Garfield Barwick. In fact Sir Garfield Barwick and his efforts in this field have been the main basis of the arguments put forward by the Deputy Leader of the Opposition. When Sir Garfield Barwick was in this place, in the eyes of the Labour Party he could do no right. The Labour Party continually criticised him. But, having left this place, he has the great praise of the Deputy Leader of the Opposition and all the other Labour men. An amazing change has come over them. Somebody has said: “ If I should die how kind you all would grow”. Now that Sir Garfield Barwick has gone from here, how kind the Labour Party is to him. To them he is now a wonderful man, but when he was here they tried to write him down as much as possible.
– We never opposed any of these proposals.
– They endeavoured to write him down as much as possible. That is the statement I made, and it stands. Now the Deputy Leader of the Opposition is trying to use Sir Garfield in an attempt to write down the present AttorneyGeneral (Mr. Snedden). These are the tactics that honorable gentlemen opposite adopt, and that fact should be known. I want the Attorney-General to clarify certain points. If anybody knows these things, he knows them, because he was in very close association with Sir Garfield. I should like to know whether the statements made by the Deputy Leader of the Opposition are true or false. He used these words: “ Sir Garfield Barwick pro.mised”. Then later he changed and said: “ Sir Garfield Barwick proposed “. Then he changed again and said: “Sir Garfield
Barwick proposed to include “. All these statements cannot be right.
I was a member of this place all the time that Sir Garfield Barwick was here. I do not think he promised anything as stated by the Deputy Leader of the Opposition. He put forward certain suggestions which were to stand for a long time so people could look into them and ascertain if they were practicable. Then, representations that had been made to him, and later to the present Attorney-General, were considered. I was very pleased to hear the AttorneyGeneral say tonight that he was of the opinion - I am largely of the same opinion - that if Sir Garfield Barwick had still been a member of this place he would have adopted the attitude that the present Attorney-General and the Government have adopted, as reflected in the amendments and the Bill that are now before us. I rose specifically to ask whether Sir Garfield Barwick promised these things, as has been stated by the Deputy Leader of the Opposition.
– I said he proposed them.
– The honorable member said that he promised them.
– I said that the Prime Minister promised them in his policy speech.
– The honorable member said that Sir Garfield Barwick promised them, and “ Hansard “ will bear me out. The statement that the honorable member has just made is about as true as his statement a little while ago that no member of the Australian Country Party has spoken in this debate. A week or two ago we got into holts over this very same thing - about a mis-statement. It is time that these mis-statements were taken up, because people accept them as being true. The Deputy Leader of the Opposition has the style of coming into this Chamber and making what I regard as being great misstatements. I think they should be corrected.
The subject matter of this Bill, of course, is one for the lawyers. I do not pretend to be able to take part expertly in a debate on the law, but I am able to take part in what I regard as being the basis of this Bill, that is, common decency. Therefore, I ask the Attorney-General:
Did Sir Garfield Barwick promise these things, as the Deputy Leader of the Opposition has stated? The honorable member has tried to get out of this, but he cannot. We have the “ Hansard “ record of what he said, and I wrote down at the time what he said. I next ask the AttorneyGeneral: Did Sir Garfield Barwick propose these things? He did really propose them so they could be investigated and so that representations could be made. Did he propose to include them in the Bill? I should imagine that he proposed to include them in the Bill if representations that were made to him did not make him change his mind. I have often said in this place that being consistent does not consist in keeping to one opinion but in being willing to change one’s mind if there is good reason to do so. As a result of all sorts of representations that were made, Sir Garfield Barwick may well have had sound reason to change his mind, as the Attorney-General has said. The main question I ask is this: Did Sir Garfield Barwick promise these things, as has been stated by the Deputy Leader of the Opposition?
.- I support the amendment that has been moved by the Deputy Leader of the Opposition (Mr. Whitlam). I do not want to enter into any argument about what the previous Attorney-General did or did not say. The amendment deals with resale price maintenance. We suggest that this should be made an examinable practice. We do not think that in all circumstances resale price maintenance should be banned. It is one of the economic questions about which there is some difficulty in determining whether it is good or whether it is bad. I would think, though, that resale price maintenance is probably at least as prevalent in Australia as has been suggested it was, and still is, in the United Kingdom.
The Deputy Leader of the Opposition (Mr. Whitlam) quoted from Professor Richardson. I wish to quote in some detail the statistics that are contained in a pamphlet “ Fair Trade: Resale Price Maintenance Re-examined “ by two English gentlemen, Mr. Andrews and Mr. Friday. They show that in the United Kingdom in 1960, in terms of total consumer expenditure on goods and services, what is called resale price maintenance on the one hand was responsible for 23 per cent, of the goods and services that were sold, and what is called direct price maintenance, on the other hand, accounted for 17 per cent. These two practices accounted for 40 per cent., or as they say, 8s. in the £1, of total retail trade. They give quite a concise definition of the two items - r.p.m., which is retail price maintenance, and d.p.m., which is direct price maintenance. Whenever a manufacturer sets the price at which a retail shop which he does not own must resell his product to the public, or at which a wholesale business he does not own must resell that product to a retailer, the practice is known as retail price maintenance. That is what happens when toothpaste, petrol, newspapers and a number of other things are sold at the same price from one part of a State to another, and for that matter from one part of the Commonwealth to another.
The other item, direct price maintenance, is concerned mainly with those organisations in the community known as chain stores. When a company owning a chain of retail outlets stipulates the price at which the manager of each must sell its products, we have an example of direct price maintenance. Suppose for instance G. J. Coles Co. Ltd. or Woolworths Ltd., to take familiar examples, fix the same price for a particular product, irrespective of what part of the country the product is sold in, that is an example of direct price maintenance. In the United Kingdom these practices between them account for 40 per cent, of retail trade in terms of goods and services, and it is likely that the percentage in Australia would be even higher. Yet at the moment the considerable body of trade encompassed in these two classes of practices is beyond the scope of this Bill. That simply shows that there is a large volume of economic activity where restrictive practices, or absence of competition, can exist which is not covered by this Bill. We are hoping that the Attorney-General will give us an explanation why these two practices have not been included in the proposed legislation when, at least, it seemed to be the intention of the previous Attorney-General that they should be. Honorable members can argue if they like, as the honorable member for Mallee (Mr. Turnbull) did, as to whether the previous Attorney-General was specific or only general as to his intention. Nevertheless he did bring resale price maintenance within the possible net of the Bill which he contemplated, but it is excluded from this Bill. We hope that we will be told the reason why. Personally I have an open mind about the question of resale price maintenance. I think that in many instances resale price maintenance is a sensible form of pricing. Nevertheless, it can be subject to abuse. For that reason, we suggest that it should be put on the list of examinable practices. That is the aim of this proposed amendment. The Opposition does not condemn resale price maintenance but leaves it to those who indulge in the practice to show whether it is a good or bad thing. I hope the AttorneyGeneral will give us an indication of why he is excluding the practice from the ambit of the Bill.
– The Government opposes the proposed amendment. In dealing with resale price maintenance, it is necessary to make a dichotomy. There is resale price maintenance which is a collective arrangement and there is resale price maintenance which flows from the individual will of a manufacturer. Collective resale price maintenance is examinable because, if it is collective it will have an agreement as its base, whether u oe an agreement between a number of manufacturers or one between a number of distributors. Collective resale price maintenance involves an examinable agreement under the Bill as it stands, whereas the proposed amendment seeks to make examinable the practice of individual resale price maintenance.
The Government decided not to include individual resale price maintenance because it involves a situation where competitive forces are at work. If I may, I will take the dreadful example of ashtrays. Let us suppose that an individual manufacturer of ashtrays says: “I want my ashtrays to be sold for 2s. each and I will not provide ashtrays to any reseller who does not sell them for 2s. each “. The question is whether the reseller is so anxious to have those particular ashtrays for resale that he is prepared to comply with the wishes qf the individual manufacturer.
– Does the Minister think that the reseller will not consider a reasonable rate of profit for himself?
– He may consider a reasonable rate of profit. The individual manufacturer may say: “The reputation and standing of my goods is such that I want them sold at 2s. each. Anybody who detracts from the standing and reputation of my goods by selling them for ls. 9d. each will not be provided with those goods”. The manufacturer is perfectly free to do that, and would not bring himself by doing so within the ambit of the legislation, lt is equally true that if an individual reseller decides he will sell the ashtrays at ls. 9cl. each, the individual manufacturer of the ashtrays can do nothing unless he has a contract which is enforceable at common law. The manufacturer can do nothing to make the reseller sell the ashtrays at 2s. each. Of course, he could withhold future supplies.
I wish to make clear that a distinct difference must be drawn between collective resale price maintenance and individual resale price maintenance. Collective resale price maintenance is examinable as an agreement. Individual resale price maintenance is not examinable because competitive forces are at work.
Mr. CONNOR (Cunningham) (10.20].- Contrary to the views expressed by the honorable member for Mallee (Mr. Turnbull), members of the Opposition have a considerable amount of respect for the Attorney-General (Mr. Snedden). Criticism in a debate of this nature is not personal and there are times when the acerbities of political life can be forgotten and men can proceed as gentlemen in their own right.
– One can always apologise, like the Kaiser-
– It is a poor circus that cannot afford one clown and I think I can see him now. Perhaps the best answer to the Attorney-General is the decision of the Government of the United Kingdom. After eight years experience of the operation of restrictive practices legislation which was introduced in 1956, the United Kingdom Government finally introduced an act such as this. It is true, as the Attorney-General has said, that in respect of multi-lateral horizontal agreements collective retail price maintenance is an examinable practice. That is understood. Nevertheless the value is shown of the figures quoted by no less a person than Mr. Heath, who is of the same political persuasion as the AttorneyGeneral. These indicate the value of the retail turnover which is comprised within this practice. On that basis alone this matter merits serious consideration. After the experience of eight years, the Conservative Government in Great Britain chose to introduce legislation of this kind.
There is no valid reason why this Government, which is of the same persuasion, in a country where monopoly is much more concentrated than ever it was in the United Kingdom, should not introduce such legislation here. In that regard I wanted to put on record the words of Professor Brunt. I quote from an article in the “Economic Record” of September 1965 in which she said -
While just about every restrictive practice known to man is used in Australia (other than those subject to common law restraints), price agreements, both horizontal and vertical, are undoubtedly the most common. For instance, the recent Tasmanian Royal Commission into the activities of 70 trade associations found 59 to be operating restrictive agreements. Excluding 6 trade associations for which evidence was incomplete, in only one association investigated was there no joint endeavour to maintain price, ranging from the strictest horizontal and vertical agreements enforced by collective boycott to informal policing of individual manufacturer’s systems of resale price maintenance. Finally, mention should be made of what is distinctive in Australia (at least by comparison with Britain and the U.S.). First, there is not only an unusually high incidence of restrictive agreements, but these arguments also have an unusual stability clearly associated with the high degree of market concentration. Second, another consequence of high concentration, unilateral vertical practices such as tying clauses and requirements contracts are fairly common.
I add a further comment by Professor Brunt as follows -
In Britain and the United States single-firm monopoly is normally regarded as a textbook curiosity. In Australia today there are a dozen important cases accounting for 9 per cent, of gross value added in manufacturing; and they are all basic industries (such as steel, sugar, paper and glass) occupying a strategic position in the economy. In general, what is unusual in Australian market concentration in manufacturing, mining, retailing and finance is not the prevalence of oligopolistic markets (for this is true also of the United States, Canada and Great Britain) but the frequency of monopolistic and tightly oligopolistic markets).
In a situation like that, no government has any justification for refusing to introduce unilateral resale price maintenance legislation.
Question put -
That the amendment (Mr. Whitlam’s) be agreed to.
The Committee divided. (The Temporary Chairman - Mr. E. N. Drury.)
Majority . . . . 10
Question so resolved in negative.
Clause, as amended, agreed to.
Clause 37. (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in a line of trade or commerce in Australia or in a part of Australia -
– I move -
Omit sub-clause (1.), insert the following subclauses: - “ (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in the trade in goods of a particular description, or in the supply of services of a particular description, in Australia or in a part of Australia, he takes advantage of that position so 89 to -
induce or attempt to induce a person carrying on a business to refuse to deal with a third person, or to refuse to deal with a third person except, on terms disadvantageous to the third person;
engage in price-cutting with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition with him; or
impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position. “(I a.) The Tribunal shall not regard as a part of Australia for the purposes of this section an area that does not include the whole of a State or Territory unless it is satisfied that it is appropriate to do so having regard to the substantial size of the area and its significance as a market area. “ (1b.) The Tribunal shall not regard a description of goods or services as being a particular description of goods or services for the purposes of this section if the Tribunal considers that it would be unreasonable to do so having regard to the fact that other goods or services are competitive with goods or services that are included in the description, and to the extent to which those other goods or services are so competitive.”.
The purpose of this amendment is to make the words “ takes advantage of that position “ relevant to the three categories. The former sub-paragraphs (i) and (ii) of paragraph (a) of sub-clause (1.) will now become paragraphs (a) and (b) and the former paragraph (b) will now become paragraph (c). The words “takes advantage of that position “ - that is, being in a dominant position - condition each of those three paragraphs. One of the most important changes is that in relation to paragraph (a) it is made clear that to induce or attempt to induce a person to refuse to deal with a third person is monopolisation. This is the corollary of clause 36 (1.) (c), which states that inducing or attempting to induce a person to refuse to deal with a third person pursuant to an agreement on behalf of a trade, association is an examinable practice.
The next point is that in relation to paragraph (c) it is made clear that taking advantage of a dominant position in fixing or determining prices is an imposition of prices. I think this is what the words would have thrown up in a proper construction but to make the implicit meaning abundantly clear and explicit, the words now will be - impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position.
Then there are two new sub-clauses. Subclause (1a.) deals specifically with a point raised by a number of honorable members and particularly the honorable member for Sturt (Mr. Wilson), namely, whether “ a part of Australia” might be some small part of Australia like a country town. The subclause was redrawn in this form to make it abundantly clear that it did not refer to some small location. On the contrary, it was to be a large area. It was not possible to say that it must be a State or Territory because you could have an overlapping, for instance, the south east of South Australia and the western districts of Victoria or a part of a State which is a considerable market area, such as the Riverina, where a particular agricultural calling is followed. It is, therefore, not possible to say “ a State” but it is necessary to give a clear indication of the size of the area in contemplation. I think this sub-clause does so. The Tribunal will be required to take into consideration the size of the area and the significance as a market area.
Sub-clause (1b.) makes explicit what was formerly implicit, that is, that the Tribunal is obliged, in deciding what goods it will take as being in the description of goods, to consider what goods or services are competitive with other goods or services. Let me take the example of containers. Containers can be metal, plastic, cardboard and glass, to mention only four. A person may have 33i per cent, of the glass containers but that may not put him in a dominant position because glass containers are in competition with metal containers, cardboard containers and plastic containers. So, in competition with all other containers, he may have only 10, 15 or even 20 per cent, of the total market even though he has 33 j per cent, of the glass containers, lt would be wrong to think of his position in relation only to glass containers. His position must be considered in relation to the whole range of containers.
– I was interested to hear the honorable member for Parramatta (Mr. Bowen) suggest earlier that new clause 37 was stronger than both the monopolisation clause, which existed previously in the Australian Industries Preservation Act, and the amendment that the Opposition proposed this afternoon. I may have missed the Attorney-General’s full explanation of the clause and I am still at a loss to understand why the words in the original Bill “in a line of trade or commerce” have been replaced by the words “ goods of a particular description “. Perhaps the Attorney-General can clear up this aspect.
.- I must say that the Draftsman was not pleased with me about this piece of language. I had in mind the use of the words “in a line of trade or commerce” because that is a phrase I was accustomed to using, but the Draftsman chided me and said: “What you really mean by the words ‘in a line of trade or commerce ‘ is ‘ goods of a particular description or services of a particular description ‘ “. I said: “ Everybody will know the words “. But I found that the Draftsman was right and I was wrong. People began asking me: “What do you mean by the words ‘ in a line of trade or commerce ‘ ? “ I would answer: “ Goods of a particular description or services of a particular description “. So we decided that the best thing was to express the meaning in the normal terms of the English language rather than adopt what is a sort of jargon. That is the explanation.
– The question is: “ That the subclause proposed to be omitted stand part ot the clause.”
Question resolved in the negative.
– The question now is: “ That the sub-clauses proposed to be inserted be so inserted.”
.- Mr. Chairman, I move -
Omit paragraph (c) of proposed sub-clause (1.). The purpose of this amendment is to omit the reference to prices or other terms or conditions of dealing. I have the greatest misgivings about this clause. As I indicated at the second reading stage, I believe that the Government is legislating unwittingly here. I would be grateful if, before the consideration of this clause is completed, the Attorney-General would state whether the Government was prepared to deny that the clause, in particular proposed sub-clause (1 .) in effect would provide for prices control. I have never heard the Attorney-General or any other Minister, in any argument concerning this Bill, say that, among other things, it would represent a form of prices control. I have no outstanding argument with the philosophy of trying to control monopolisation where it is opposed to and is in fact injuring the public interest. But I have a rooted objection to implicit approval of a form of prices control.
I ask the Attorney-General to consider some specific cases. He himself has adverted to a regional area - the Riverina. On Tuesday, I instanced Toowoomba Foundry Pty. Ltd., in the Darling Downs area. This company manufactures agricultural equipment and sells it throughout the Darling Downs and Western Queensland. Conceivably, for the purposes of the Trade Practices Tribunal, that region could be regarded as a substantial area. Bear in mind, Mr. Chairman, that the Tribunal’s judgment of what constitutes a substantial area is its judgment and its judgment alone. That judgment is not open to review. Suppose the Tribunal were to take the view that the Toowoomoa Foundry was using its dominant position to impose prices. Let us consider the case of a two-horsepower motor being sold for, say, £80. The Tribunal could order that the motor be sold for £60. Under the terms of clause 52 the Tribunal may make such orders as it considers necessary or thinks fit and such orders will not be reviewable. This does not seem to me to be in harmony with the philosophy behind the Bill as I apprehend it. However, I may be in error. If I am, I shall be grateful if my error is pointed out to me. I instance also the Broken Hill Pty. Co. Ltd. If it were selling 16 gauge steel for £80 a ton. the Tribunal could order that such steel be sold for £60 a ton. What could the Company do about that? lt could do nothing.
I put it to the Attorney-General and to the Committee that this sort of thing would constitute a form of prices control. I submit that the full legal implications of clause 37 have never been studied by the Government. If there is a fallacy in my reasoning, I would be grateful to be shown where that fallacy lies. I am not going to argue the merits or demerits of price control. This is not the occasion for doing that. I take the stand that with a free enterprise system there should be no need for price control. But I have the gravest doubts about the Committee approving of a system of control unknowingly, unwittingly and unsuspectingly.
I ask the Attorney-General whether or not clause 37 (1.) (c), as it is proposed to stand - that is, “ impose prices or other terms or conditions of dealing that he would be unable to impose but for his dominant position “ - does, in fact, amount to a form of price control. The Tribunal determines the area and whether or not a person is in a dominant position. Those discretions are not reviewable by a court. These discretions combined together to give power to the Tribunal to determine whether or not a particular company is using its dominant position for the imposition of prices that it would be unable to impose but for its dominant position. I believe that this is tantamount to a form of price control. At no stage has the Attorney-General adverted to it and neither has any other Minister.
– There are one or two thoughts that I would like to add to the discussion of this clause. I do not quite understand how the Attorney-General (Mr. Snedden) is going to square this up with what he has said on the resale price maintenance arrangements. We are now referring to monopolies. I presume that we are trying to bring these large concerns into line with something, but I do not know what it is. Even if they have a monopoly, if they are in a position of being dominant because they are able to supply a large section of the market, they have the same right as any small manufacturer to nominate the prices at which they sell their goods.
I note that clause 37 (1.) (c) refers to the imposition of prices that a manufacturer would be unable to impose but for his dominant position. How this is going to be decided, I do not know. Let us take a large scale manufacturing concern. It will have heavy capital expenditure. It will be the sort of industry in which a lot of money has been invested. Probably it will have larger plant than is absolutely necessary for the supply of the market, because naturally it will be looking forward to a growing market. But it must have some degree of certainty in marketing its goods. It will have to know what sort of return it is going to get on its investment. I cannot think of any large manufacturing concern which comes within this category and which does not have very keen competition, although it might not be in the particular named product that it happens to produce. A few minutes ago the Attorney-General referred to containers. The point was very well taken. There are glass containers, tin containers, and plastic containers. I hope that before long there will be aluminium containers. I hope that one of these days we will be able to get rid of the old glass milk bottle and have plastic containers, but this is a separate consideration. In this provision we will have to consider somebody who, because of his dominant position - perhaps in the glass industry - is imposing certain prices. This example is peculiar to Australia because we have really only one glass manufacturer. But this does not mean that that manufacturer can impose higher prices for glass containers because of his dominant position in glass; he has to think of the terrific competition that he gets from everybody else who is trying to persuade manufacturers to put their product into some other sort of container.
There is a deadly war on at the moment in baby foods. An attempt is being made to persuade people that they can get less baby food in a glass container than in a tin container, pay more for it and yet be better off. But this does not work out. This is the sort of interference with the conduct of business that I object to in this Bill. We are trying to impose on industry a great cost. If we have in the Bill clauses of this nature which will be so debatable, and if we are to have a tribunal going thoroughly into the whole question and examining it, the firms concerned will be obliged to defend themselves. At this juncture I just mention as an aside that I was told quite recently of an oil firm in the United States of America which employs a legal staff of 45 men, 38 of whom are engaged full time on restrictive practices conditions which are imposed on the company because of its size. This is an unfair addition to the costs that the company has to meet in any event. That may be all right in America. I do not argue about that. But some honorable members have argued that we should follow the British pattern because in Britain a price control is imposed on resale pricing. I am not impressed with this argument. We are legislating for Australia and our conditions are entirely different.
We are trying to attract business people to Australia. We are trying to build up secondary industry. Yet we are putting all these hurdles in front of people to make it more difficult for them to be able to give us the type of secondary industries that we need which will give us the export income that we require. Most businesses that we can attract to Australia will grow to the stage where they can enter the export field and can benefit Australia. But all that we are doing is imposing on them much additional cost.
– What about primary industries?
– I will have a bit to say about primary industries a little later. That question does not come into the matter we are now discussing. At the moment we are dealing with a very important part of the measure- In addition to what I have already put forward, most of the people to whom I have referred have patents or arrangements with overseas manufacturers. They have brought know-how to Australia. Unless they are given some protection in this sphere they really will not know where they stand. If the Tribunal is to have power to examine them and to impose conditions on them, as the honorable member for Moreton (Mr. Killen) has said, telling them at what price they have to sell their goods, I can see that it is going to be very difficult to attract new industries to Australia. If they are conscious of the fact that these conditions are to be imposed, they will not be attracted to Australia.
I can only assume that what the AttorneyGeneral is trying to do by this clause is to reduce the size of the interests coming to Australia and, in the jargon that has been used, to fragment the industry. This is entirely in opposition to our Tariff Board policy. The Tariff Board has spoken unfavorably of fragmentation. In its annual report for 1963-64, it had this to say -
The Board again found in the course of its inquiries that the Australian market for some products had been or was being fragmented among mora manufacturers than the market could economically sustain, and this fragmentation has tended to accentuate the difficulties arising from the scale of production. The Board is hesitant to recommend protective duties at a level which could sustain uneconomic fragmentation of the market. Significant cost savings could follow a decrease in the number of manufacturers in some industries.
That is the policy being followed to meet Australian conditions at the present time, yet the Government proposes introducing an entirely new policy by the imposition of this provision. I submit those few thoughts in the hope that the Attorney-General will realise the importance of keeping costs down. This is one item which could easily bear very heavily on the Australian cost structure.
– I refer first to the point which the honorable member for Moreton (Mr. Killen) sought to make with relation to paragraph (c) of proposed new subclause (1.) of clause 37. He asks me to say whether or not I agree that this is a form of price control. The answer is that I do not agree. Obviously we cannot talk about monopolisation without talking about prices. It is impossible to think of monopolisation without thinking about prices. What we seek to do here is to make manifest by the agreement the difference between the words as they were originally in sub-clause (1.) and the words as proposed. We wish to make it clear that what is referred to is the imposition of a price.
If a person enjoys 100 per cent, of the market he will charge prices accordingly. He will charge prices which have some relationship to the way in which he manages his plant, the cost of production and so on. An honorable member mentions B.H.P. Of course, B.H.P. will fix the prices for its steel products. The question which is concerned here is whether or not the person who is in a dominant position imposes prices which he would not have been able to impose were it not for his dominant position. Prices must be relevant, but, because the word “ prices “ is used, that does not mean to say that a price control structure is erected. The thing we are talking about is the descriptive element of price. This is not capable of being used as a price control mechanism.
.- Clause 37, which deals with monopolisation, is one of the more important clauses of the Bill. We have spent a good deal of time on far less important clauses than this one. One of the reasons why it is important is that whereas, when an agreement which falls within clause 35 is knocked out the way in which the people concerned conduct their business may be little affected. The same applies to a practice which falls within clause 36. If that practice is knocked out, it may affect very little the way in which the people concerned conduct their business. But if a business falls within clause 37, then the terms and conditions on which it does business may come under the control of the Tribunal which may direct by its orders under clause 52 what it shall do. For example, it is empowered to place a ceiling on what may be charged.
I want to raise only one question in relation to this clause. It has to do with paragraph (c). If a concern has one-third or more of the market, when it comes to fix prices, terms or conditions for dealing in its products, inevitably it must do so having regard to the position that it holds in the market. It cannot do anything else. If it has 28 per cent, of the market and it is trying to outsell its competitors and arrive at 30 or 35 per cent, of the market, it can do that only at their expense. It must- take part of the market away from some of its competitors if it is to increase its own share of the market. Inevitably such a concern will have regard to its position in the market when it fixes its price. 1 should have thought that this provision would have isolated those practices that we really want to hit if it had contained some such words as “ improperly or unfairly impose prices “. The clause as amended is better in this respect than the clause in the original Bill, but I am not convinced that the words “ would be unable to impose but for his dominant position “ are anything but neutral. One of the difficulties about putting in a phrase like “ unfair or unreasonable “, which is not neutral, is that it would require judgment of the practice before one came to apply the test of public interest in clause 50. Therefore, it may be inappropriate to insert the word “ unfair “ or the word “ improper “ in clause 37. They would appear more properly in sub-clause (3.) of clause 50. It may be possible to make some reference there to the requirement that the action taken by the person having 30 per cent, of the market should be predatory or unfair or unreasonable in some way. If it is a perfectly neutral action in fixing prices, the seller is still imposing them. That contains no sense of impropriety. Everyone, simply by having a share of the market that reaches 30 per cent., would inevitably come within paragraph (c). This is not really the intention. The intention, I take it, is to catch the improper or unfair practice. Without suggesting any amendment to clause 37, I suggest for consideration that clause 50 (3.) be varied in order to make this intention clear.
.- I do not want to offend the Attorney-General (Mr. Snedden) but, with very great respect, I warmly disagree with him. I suggest that this clause amounts unintentionally to a form of price control. I gave to the honorable gentleman the example of the Broken Hill Pty. Co. Ltd. If it is selling 16 gauge steel for £80, and the Tribunal tells it to sell for £60-
– What is wrong with that?
– As a Socialist, the honorable member would rejoice. He would put the company out of business and in doing so he would probably put 25,000 people out of business and put people on to the labour market. That is the sort of crazy thinking that dominates his whole being. I am interested in the meaning of the words that appear here. The Attorney-General has suggested that the word “ impose “ has some emotive meaning. We could play with words, but surely the Tribunal is not to be caught up in some semantic chase as to whether or not “ impose “ means “ resting heavily”. One could settle for a host of other synonyms such as “ set prices “ or “ rest prices “. I am attracted to the proposal made by the honorable member for Parramatta (Mr. Bowen) which would meet my objection. I believe that I understand the intention, but I am putting it to the Attorney-General that quite unintentionally the Government is setting up mechanism which, in the hands of the Tribunal, will enable it to impose price control on a host of industries throughout Australia. There would be no appeal - no way in which to restrain them at all. I will give another illustration. Take the case of a company producing cement at Darra near Brisbane. lt has a substantial market area, lt would be the only cement company within hundreds of miles. The Tribunal could make the intelligible move of saying: “ This is a substantial area and we take the view that you are in a dominant position. We take the view, too, in our discretion that you have one-third of the market and you should sell your cement for X minus Y pounds “. There is absolutely nothing that the Attorney-General, the Government, the Parliament or any court could do about il, because these unfettered discretions will have been handed to the Tribunal. The Attorney-General may put it to me: “The Tribunal is not going to proceed irrationally, lt is not going to proceed with a deliberate intent to put these concerns out of business “. That may well be, but the Tribunal’s activities cannot be controlled in any way.
I said earlier that I am not arguing the merits of the case for prices control one way or the other. What I am desperately concerned about is the loose arrangement of words in clause 37 (1.) (c) and I put it to the Attorney-General that I want to go on record as saying that 1 think the Government unwittingly is setting up a mechanism that could well, in certain circumstances, serve as a viable system of prices control.
.- I listened with great interest to the remarks of the honorable member for Moreton (Mr. Killen) about the Broken Hill Proprietary Company Limited and its subsidiary, Australian Iron and Steel Pty. Ltd., which is within my constituency. I can imagine no industry which is more entitled to be scrutinised than the steel industry with respect to its price structure. I do not speak as one who wants to put 25,000 men out of work. As a matter of fact, without throwing bouquets at myself, as a State parliamentarian I was responsible for the expenditure of about £75 million of State funds to facilitate the company’s activities. Accordingly, I have a vested interest as a public representative in the matter.
The position with relation to this company is that it produces two-thirds of Australia’s steel. It produces 3i million tons a year. It is on record, and those who are interested can look at an article in the financial columns of the “ Sydney Morning Herald” of 14th November last year in which the financial editor calculated that the company’s gross profit per ton of steel produced was £16. If we multiply that by the production, the figure amounts to £53 million a year at Port Kembla, to which can be added the Newcastle profit as well. The industry is technically most efficient. There is no more efficient steel industry in the world for its size than the Broken Hill Proprietary Company Limited. However, several criticisms can be made of it. The first relates to the remuneration paid to its employees. There I join issue strongly with the company. A further issue concerns the steps it is taking to ensure that it plays its part in Australia’s export trade. Thirdly, there is the further question that any prices tribunal or restrictive trade practices tribunal would undoubtedly examine the company’s legitimate margin of profit because the chairman of directors stated some six years ago that in future the company would depend upon its ploughed back profits for further development and expansion.
I want to do justice to the company and its shareholders; I want to do justice to the men; but above all I want to do justice to Australia. A pretty problem will be imposed on the Tribunal when it considers the cost structure of this company and its profits. What is to be a fair profit? The company could say: “ Even now our prices are considerably below the cost of imported steel, because of two things - technical efficiency plus the high metallic content of the iron ore”. Nevertheless, further considerations might arise and could arise in view of the loose definitions in clause 50 of what is in the public interest and what is contrary to the public interest. I can conceive a situation in which there should be quite a substantial reduction. I know of no industry that is more amenable to treatment under this clause than the steel industry is.
.- I want to support the honorable member for Moreton (Mr. Killen) and the honorable member for Parramatta (Mr. Bowen) in their contentions on this sub-clause. The honorable member for Cunningham (Mr. Connor) obviously would like to nationalise the steel industry. That is his point of view, all right. I am not criticising it as far as he is concerned, but I am criticising it as far as I am concerned. I think the Broken Hill Pty. Co. Ltd. has done a magnificent job for Australia. When we talk about steel prices at the present time we must remember that steel is going to be - and, indeed, is at the moment - under great competition from aluminium. If we provide that steel in an industry which will come under the imposition of prices provision, then, because of the B.H.P.’s position, as the honorable member for Moreton said, we will be setting up a form of government price control from which there will be no appeal. I therefore ask the AttorneyGeneral (Mr. Snedden) to take seriously into consideration what has been said by the honorable member for Moreton and the honorable member for Parramatta.
In his explanation the Attorney-General talked about containers. There is considerable competition among manufacturers of plastic, aluminium, steel, cardboard and other forms of containers, but because, for example, one company, which has been mentioned, might have a dominant position in a certain area, that does not mean it is not subject to competition. Take the glass industry as an example. As somebody said, there is in Australia really only one company interested in the glass industry, but the glass industry, as such, does not dominate the position because, under present conditions in the world of trade, plastic, aluminium and other types of containers are coming in and causing competition for the glass industry. Almost any night on television one can see advertisements by the glass industry saying “ You can see what you are buying in glass”, because the industry realises that the other containers coming into competition with glass are cheaper. I therefore suggest to the Attorney-General that he should either postpone this provision in sub-clause (1.) (c) and have another look at it, or take the suggestion of the honorable member for Parramatta and insert the words “ improperly or unfairly “ in clause 50, as otherwise I feel I will have to support the honorable member for Moreton.
– I want to reply to the reply made by the honorable member for Moreton (Mr. Killen) to my interjection a few minutes ago when I asked: “What is wrong with the Tribunal directing the Broken Hill Pty. Co. Ltd. to reduce the price of steel? “
– From £80 to £60 per ton.
– Yes, by £20, if you like.
– By 25 per cent.
– Yes, by 25 per cent. My interjection was made on the very proper assumption that the Tribunal, when it made the direction, would have acted in good faith and that it would not under any circumstances order a 25 per cent, reduction unless it felt that that was justified. If the Tribunal felt that a reduction was justified then I see nothing wrong with it directing that the reduction be made, because I well recollect that a few years ago the B.H.P., after announcing a record profit, announced, almost in the same breath, that the price of steel would be increased by £3 per ton. The company arbitrarily increased the price of steel by £3 per ton immediately after announcing a record profit. It is of no use the honorable member for Moreton replying to my interjection and making the foolish statement that our amendment, if carried, would put a lot of men out of work. It will not do this.
– It could.
– It would not put people out of work at all. If the Tribunal thought that the 25 per cent, reduction could be supported by logic, the company could continue to make a profit and to employ all the men that it is now employing. The only difference would be that the users of steel would get it at a cheaper price. I cannot understand the attitude of Government supporters to this legislation. Honorable members opposite who have sought to amend the Bill or who oppose its proposals have not done so because the Bill offers too much protection to the public. They have attacked the proposals because they do not give enough protection to the giant monopolies, cartels and other organisations that fleece the public. The amendments moved by honorable members opposite are designed not to protect the public - the electors who vote at election time - but the 0.5 per cent, of people who profit from monopolies, prices control and restrictive trade practices.
The honorable member for Cunningham (Mr. Connor) was correct when he said that the Broken Hill Pty. Co. Ltd. is one of the toughest employers in Australia. I know this is so because I have appeared in Federal and State arbitration tribunals against the B.H.P. company in an endeavour to get decent wages and working conditions for employees of the company. I have never appeared in an arbitration tribunal against a tougher employer of labour than this fabulously wealthy giant monopoly.
– And the Australian Workers Union will not allow an Aboriginal in its ranks.
– I have explained that section 144 of the Conciliation and Arbitration Act makes it an offence for a union to prevent a person of nonEuropean blood from joining the union unless that person can be shown to be of general bad character or not to have abided by the rules of the union.
Let me get back to the point under review. The honorable member for Chisholm (Sir Wilfrid Kent Hughes) said that the B.H.P. company has done a magnificent job for Australia. In a way it has, but it has done a much better job for its shareholders. It has done more for its shareholders than it has for the people who buy its products. There can be no question of that. No company in the world enjoys the same facilities and natural advantages for the production of steel as does the B.H.P. company.
– Its steel is still the cheapest in the world.
– Of course it is. The honorable member entered the chamber and interjected without hearing what I had been saying. The B.H.P. company is able to produce the world’s cheapest steel because it has access to the world’s best deposits of iron ore and coal.
– These deposits are at the company’s back door.
– Yes, the deposits are situated geographically in such a way as to make it easy for the company to draw on them. Our iron ore deposits are virtually all on our coast, as are our coal deposits. It would be a different matter if our coal was at Oodnadatta and our iron ore was more than 100 miles inland from, say, Port Hedland, but this is not the situation. The B.H.P. company’s steel should be cheaper than it is. The point raised by the honorable member for Chisholm was irrelevant, but since the honorable member raised it, I have felt obliged to answer it. I make this further observation: I am absolutely amazed, as I am sure are the people of Australia who may be listening to this debate, at the way backbench members of the Liberal Party have defended the right of the giant monopolies to exploit the people of Australia. Not one honorable member opposite has struck a blow for the people who have to buy the products of these giant monopolies.
– The speech made by the honorable member for Hindmarsh (Mr. Clyde Cameron) confirms my opinion that if the Australian Labour Party got into power it would use this clause practically to nationalise many industries in Australia. The honorable member said that in perfectly direct language. He said that I did not stop in the chamber to hear his reply on the Australian Workers Union. I do not care what the law is; I stated the facts and the honorable member did not like them. He knows they are facts. In his speech the honorable member said the Broken Hill Pty. Co. Ltd., which he attacked, sold the cheapest steel in the world. If the honorable member does not believe that company’s prices are right there could be a reduction in the. customs tariff so that Japanese steel could be sold here more cheaply. What the honorable member wants is to get this clause passed so that it could be used for purposes of nationalisation and this merely confirms the fears I had regarding it.
.- I agree with the honorable member for Moreton (Mr. Killen) and I can see a danger in this provision. I am fortified in that view by what has been said by the honorable member for Hindmarsh (Mr. Clyde Cameron). When you hear an irresponsible statement in this place by an honorable member who lives on hatred of enterprise and who quotes another honorable member who lives on hatred of enterprise-
– Order! The honorable member will come to order.
– When we hear statements such as those that have been made about an industry like the Broken Hill Pty. Co. Ltd. it must be too late to go on with the debate because this is nonsense - it is absolute nonsense. If the Committee wants evidence on this, let us look at the statements made by Mr. Makin when he was Minister for Munitions during the Second World War. He said that the greatest contribution to Australia’s defence was made by the Broken Hill Pty. Co. Ltd. It is nonsense to talk about the fact that the Company happens to have coal on the seaboard. The Company went to the seaboard because the coal was there and because that was the sensible thing to do. It brought iron ore to the same place and built up a great industry. No industry has done more to make Australians proud of its efforts. What about the record of the honorable member for Cunningham (Mr. Connor) and the honorable member for Hindmarsh in the Mount Isa dispute and what they did with Pat Mackie?
– Order! These matters are not relevant to the debate. The Committee is discussing the Tribunal and comments regarding prices and the dominating position of monopolies may be made to illustrate a point relating to this particular provision but the Committee cannot allow the debate to develop into a discussion on the good qualities or otherwise of one particular organisation.
– Proposed sub-clause (1.) (c) states- (1.) For the purposes of this Act, a person engages in monopolization if, being in a dominant position in the trade in goods of a particular description, or in the supply of services of a parti cular description, in Australia or in a part of Australia he takes advantage of that position so as to -
The honorable member for Parramatta (Mr. Bowen) thought the word “ improper “ or “ unfair “ should be added. In the past five minutes, the Chair has allowed an attack upon the Broken Hill Pty. Co. Ltd. and in a fair debate one is allowed to refute an unfair charge such as that made against the Company.
– Order! If the honorable member for Hindmarsh does not cease interjecting, he will not be allowed to remain in the chamber. The honorable member for Macarthur has replied to the comments made by the honorable member for Hindmarsh, but I fail to see that the reference to Mount Isa and the situation there have any relation or relevance to the matter before the Committee. I suggest that the honorable member for Macarthur might consider that point and see the substance behind my comment.
– Perhaps you would allow me to put to you that this provision could apply to prices charged by the Mount Isa undertaking. If I remember correctly, you were with me when we saw the place where the copper was refined at Townsville. The company is in a monopolistic position, so that this provision applies to the Mount Isa organisation as well as to the Broken Hill Pty. Co. Ltd. The point I want to make is that in this Parliament people not very well fitted to make contributions towards these very great industries, upon which Australia’s whole future depends, are going to interfere with them and say that these companies are bad employers. I happen to represent a great many employees of the Broken Hill Pty. Co. Ltd. and it seems to me that jobs with that company are eagerly sought after by the people in my electorate. They are very proud to have jobs with that company. If this provision interferes with that great Australian industry it is a bad provision and I think we are indebted to the honorable member for Moreton for directing attention to it.
Throughout the debate on this matter the Attorney-General has been chatting with other Ministers, and I do not know whether it is any use going on with the debate if the Government’s representative, who is handling the Bill, does not take any notice of what is going on. Does the Government really want to consider this? I think that any honorable member who gives this matter consideration will be concerned about the trend of the debate. Obviously we could gravely interfere with the progress of these industries, and one must bear in mind the history of some of the men who have been speaking on this matter.
– There are a couple of matters on which I would appreciate a reply from the Attorney-General. 1 mention in passing the fact that activities such as research are dependent on an enterprise commanding a very large section of the available market. We must have monopoly conditions if we expect firms to put aside the necessary money for research. Today Australia is just beginning to get going with research in industry. We have been asked to make special taxation allowances to encourage research. This is one aspect of the building up of our secondary industries which is tremendously important.
I might also mention the matter of patents. A patentee may have an exclusive right to dispose of a franchise, or perhaps to sell his product, but certainly he should have the right to put a price on the product. Is that kind of right going to be inhibited because the patentee is in a dominant position? As I see it, this provision goes much further than the Patents Act. I would like some clarification of this. I am not familiar with the subject but this is what I understand. It seems to me that we are cutting across a facet of industry that is most important. There must be some guarantee of immunity if we are to encourage these great enterprises that Australia needs to establish themselves here, particularly when we have given them to understand that stable prices and stable government provide an atmosphere in which they can make a contribution to Australia. If this clause stays as it is, it will impose something on these concerns. The word “ impose “ goes both ways. The clause imposes a great handicap on them, and there is no appeal. To my mind, this is one of the areas in which the Bill falls down.
.- The amendments that have been proposed by the Attorney-General illustrate the difficulties in which the Government, having disregarded the original Barwick proposals, finds itself. Originally it was proposed that this should be an inexcusable, unlawful practice. In other words, it was to be an offence. It has been demoted from that position; now it is to be merely an examinable practice. The complexity of this particular provision, the obvious dissatisfaction of supporters of the Government, and doubt about the results of its interpretation are the best proof of my contention.
This legislation may be a mixed blessing. This practice may be difficult to prove in certain cases. In the very great area where individual monopolies undoubtedly have complete control, notably such sections of industry as steel, sugar, glass and paper manufacture, this provision is capable of instant and immediate application. But. as Professor Richardson has pointed out, in other cases there might be considerable difficulty in relation to proof. In particular, domination of at least one-third of a particular category of goods might be very difficult to prove. It might be difficult, first, to define what that category is and then to make an actual assessment of the volume of goods being produced. However, I leave this to the Attorney-General with the certain knowledge that the Government, with its majority, will be able to force the amendment through.
– I should like to answer in more detail than I did earlier the points that were raised by the honorable member for Moreton (Mr. Killen). Perhaps I should have done so earlier, but I thought it was unnecessary. I thought the honorable gentleman would pick up the point, and probably he did. However, the honorable member for Chisholm (Sir Wilfrid Kent Hughes) and I think the honorable member for McMillan (Mr. Buchanan) -
– It was the honorable member for Parramatta.
– The honorable member for Parramatta (Mr. Bowen) was putting a different point entirely. The honorable member for Macarthur (Mr. Jeff Bate) is the third member I was trying to think of. What the honorable member for Moreton was saying was that proposed subclause (I.) (c) could amount to a price control. That is what the honorable gentleman is concerned about. Let me make this point quite clear: There is an examinable practice when a person in a dominant position takes advantage of that position to impose prices or other terms or conditions of dealing upon another person, lt does not go both ways. The honorable member for McMillan thought it might. It goes only one way. As I said a moment ago, when a person in a dominant position imposes prices or other terms or conditions of dealing on a third person or a group of third persons, that is an examinable practice. It could go before the Tribunal. The Tribunal would need to be satisfied, first, that there was a dominant position, secondly about the imposition of prices, and thirdly about an imposition of prices which he could not have imposed if he had not been in a dominant position.
I do not think the honorable member for Moreton was concerned up to that point of time. What he says, in effect, is: “ If this is so, and if the Tribunal decides that it is against the public interest it could then operate as a price control mechanism to fix the price at which the goods could be sold.” Let me make this quite clear. It would be contrary to law, incapable of cure before the High Court, if the Tribunal sought to do that. All that the Tribunal has power to do is to order the person in the dominant position, who is imposing those prices, to cease imposing them. It cannot say to the party concerned: “ Instead of charging price X you will charge price X minus ten “, or “ Instead of charging price X you will charge price Y.” It is not able to do so. If the Tribunal is not able to do that, it cannot be a price control mechanism. I can understand the honorable gentleman’s concern about this matter but that is the fact of the matter based on the proper construction of the clause.
The honorable member for Parramatta (Mr. Bowen) would have liked to see instead of the words which refer merely to imposing prices some words which had reference to imposing unfair prices. He came to me and spoke to me about this and I told him then and there that when you spell out in a clause what is examinable you cannot insert in the clause the very thing that you are erecting the Tribunal to determine. When I put that point to the honorable member for Parramatta he accepted it, but he has raised it again tonight. Although the honorable member appeared to be satisfied earlier he said tonight that this provision should be made in clause 50 (3.) of the Bill. He wants to have a reference to “ unfair “, or something of that kind. In relation to clause 50(3.) that is precisely what the Tribunal has to do. It has first of all to decide whether the person concerned is in a dominant position. It then has to decide whether that person has imposed prices. It then has to decide whether the prices imposed could not have been imposed if it were not for the dominant position. The Tribunal then has to ask: “What do we have to bear in mind? “ It has to bear in mind the principle that the preservation and encouragement of competition must be in the public interest. Then it has to weigh the detriments of imposing prices against the tendencies towards advantage. I have jumped to a consideration of clause 50 and particularly sub-clause (3.), but it has a bearing on this point. If the Tribunal finds that what is being done is against the public interest it will make an order that the person in a dominant position will cease imposing prices. That is all it can say; it can do no more.
– Who else will impose a price if somebody else is selling its product?
– It is the imposition of a price which could not be imposed if the party concerned were not in that position. If the party concerned were the only party selling the product it does not necessarily impose the price. In fact the experience has been that in the majority of cases it does not impose a price which it could not impose if it were not in a dominant position. It just fixes a price in the ordinary course of business.
The point made by the honorable member for MacMillan (Mr. Buchanan) concerns research. Sometimes it is necessary to have a monopoly position in order to conduct research. One cannot prejudge such a situation. The honorable member would not want to do so, and neither would I. If somebody is in a dominant position, he may be engaging in research work which may be of the greatest benefit, and the cost of that research may be amortised through the prices charged. If that is the situation, the Tribunal would scarcely be looking to decide whether that person is imposing prices.
– And patents?
– That is a separate point. Patents are excluded from all the other practices, but not excluded from consideration in relation to monopolisation. The reason is that under the Patents Act certain privileges are given to a patent holder. This is sometimes described as a monopoly. I think case law would show that is not the fact, but let us distinguish it in that way. Certain rights are extended to the holder of a patent. He may be able to establish himself in a dominant position by buying a framework of patents. One would not want a system whereby advantage is given to inventiveness and genius to be used as the false base for a person to move into a dominant position and misuse it to the disadvantage of the rest of the community. In the majority of cases, a person in a dominant position is an artificial person, not a real person. So that in this case of patents, I think this is a proper provision in the legislation.
The following bills were returned from the Senate without amendment -
Constitution Alteration (Parliament) Bill 1965.
Constitution Alteration (Repeal of Section 127) Bill 1965.
Bill received from the Senate, and read a first time.
Bill received from the Senate, and read a first time.
Booklet on Vietnam.
Motion (by Mr. Freeth) proposed -
That the House do now adjourn.
.- Mr. Speaker, tonight I want to refer to a matter which I believe raises a most important question of principle in the administration of democracy in Australia. Replying to a question in the House this morning, the Prime Minister (Sir Robert Menzies) disclosed that the Government intended to distribute a booklet entitled “ Vietnam - Recent Statements of Australian Policy “ among all secondary schools in the nation. What is this booklet? It is a booklet containing extracts of speeches made by the Prime Minister, by the Minister for External Affairs (Mr. Hasluck), by the Minister for Works (Senator Gorton) and by one or two other Government spokesmen. It indicates Government policy in respect of Vietnam.
The point I want to make is that the booklet has been produced at public expense, out of revenue raised from the taxpayers. The Prime Minister went on to say that it would be at the discretion of headmasters, or perhaps of the schools, as to what they did about the booklet when it was issued to them. First of all, this puts all headmasters or principals in a very invidious position. What is going to be their position? If they distribute the booklet to the students in their schools they are likely to be attacked for favouring Government policy. If they do not distribute it, they may be said to be guilty of taking another political attitude. This is going to put headmasters and principals in a most embarrassing position.
I have no objection at all to political parties distributing their propaganda to schools if they want to do so - if the schools are prepared to accept it. But I take serious objection to the use of public funds to distribute booklets on Government policy amongst school children or any other group of people in the community. I think this has gone much too far already. The Government is already taking undue advantage of its position to use public funds in the interests of partisan politics. It is using them to propagate its own view to the exclusion of any other view.
I think this is very serious as an educational principle for a start. I think it is very serious that the Government should lend itself to this sort of thing in the name even of education. If education means anything to young people, it means giving them all sides of the question, especially in respect of controversial matters such as this. I ask Government members who are inclined to be critical of what I am saying to put themselves in the position of the Australian Labour Party. If there were a Labour Government in power, doing this very thing - putting out its views on Communism, industrial legislation, the defence of the country or any other controversial issues, using public funds or taxpayers’ funds to do so, and only putting one side of the question - I imagine there would be uproar in this place tonight. This is all the worse from an educational point of view because most media of public communication today lean over backwards to put the Government’s view, to the neglect of the Opposition’s view. Not content with that, the Government is prostituting public funds in the interests of partisan politics. I think this is disgraceful. This is not the first instance of this kind of thing.
I cannot see the reason why the Government should include in its publication on social services pages on the history of social services. I think that is irrelevant to the whole business. If the Government is going to produce a booklet of this kind at public expense, that booklet should take one of two forms. First, it should deal with the facts of legislation passed by the Parliament. It should not deal just with the prerogative of the Government but with the legislation passed by the Parliament. It should contain details of the provisions of the legislation. If the Government is going to use the second form I would mention - that of putting forward political opinions - it has the ethical responsibility in our democratic society to put forward all points of view as expressed in the Parliament. That is something that the Government has not done. As a matter of fact, not only does the Government not communicate the views of the Opposition in this booklet but it goes so far as to quote extracts from speeches made by Ministers of the Government outside Parliament. These speeches could be made in addressing a Liberal Party conference, I suppose. I think this is a dangerous practice in a democracy. I think it is a practice which ought to be seriously called into question. What is the Government’s anxiety in this matter? On this particular issue the Government is trying to tell us every day that it has the overwhelming support of the people. Why does the Government have to go to this extent? Why does the Government have to go into schools, trying to engage the attention and the minds of youngsters who are too immature to make judgments on these matters?
– What has the honorable member for Yarra been doing in the schools?
– In answer to the Minister for Shipping and Transport (Mr. Freeth) I say that I have no objection to schools, if they so desire, accepting publications from anybody but I hope that those schools would accept publications from everybody who had a point of view to put. It is also my hope that the Government would not use its prestige to put its views forward and use the taxpayers’ money to do so to the exclusion of other points of view represented in this Parliament.
– The honorable member for Yarra used his own money.
– Of course he did. This action ties in with the Government’s extreme sensitivity on the matter of our involvement in Vietnam. The Government tells us that it has the overwhelming support of the community yet it brings itself to do a thing like this. No teacher worth his salt or conscious of his professional ethics would allow himself to peddle a political line made available at taxpayers’ expense to immature students.
– This ls indoctrination, not education.
– Of course it is. I think the Government ought to be ashamed of the action it has taken. If this material is admitted to schools, and especially if it is used, I suggest the teacher has an ethical obligation to make his students aware of other points of view. But even that does not get over my main objection which is that the Government is using the money of the taxpayers to put out this kind of propaganda.
Where does this end? The Prime Minister (Sir Robert Menzies) said this morning that the justification was that the public at large was criticising the Government for not making its view known on this controversial issue. The Government could use this excuse with regard to any number of issues. It could conduct all its electioneering by using the money of the taxpayers to put out Liberal-Country Party propaganda in the interests of enlightening the unenlightened public on these matters. Where does it all end? I hope I have drawn out the principle. I hope those who are genuinely liberalminded in this community can see the objections I am making in this matter. I have asked the question as to just how far this can go. Imagine if the Government had done the same thing about Communism, the Crimes Act, or the controversial aspects of education policy, and used the taxpayers’ money to put out propaganda - the line of the Liberal-Country Party Government - under the cloak of being the Government of the day. The Prime Minister says that we have only one government. The way he is going, it will not be long before we will have a one party state in this country. That is the attitude that has been taken in this matter. My view is that public statements issued at the expense of the taxpayer should contain the legislative provisions enacted in the Parliament. They should give the details of the laws for the benefit of the community. If the Government goes beyond that and makes policy statements or presents opinions on certain matters, it has a responsibility in a democracy to put all sides of the question.
We have heard a lot in the last few weeks, in this session particularly, not the least from Government members, about the dangers to democracy in this country. Reference has been made to the dangers of bureaucracy and the dangers of the executive arm of government in this country. Reference has been made to Ministers with all the paraphernalia and machinery behind them to engage public opinion and to make statements in all sorts of places. We should compare their position with that of the ordinary backbencher in this Parliament and the research facilities that are available to him to enable him to make statements to the community. All of this machinery is available to Ministers. Yet there comes this threat to democracy in this country by using the taxpayers’ money to publish partisan political statements and, above all, to issue them in schools in an effort to influence the immature minds of youngsters who, because of their immaturity, are not able to make judgments on the material that is put before them. I have serious and grave objections to this departure from democracy in our country.
.- I remember seeing once upon a time a film called “ The Mouse that Roared “. It now comes to my mind. It is very interesting to hear a speech from a member of the Opposition who, not many weeks ago, made a pronouncement in this chamber on certain things that he considered were inadequate in respect of Vietnam and said that he had the right to bring them to the notice of the people and that it was his duly to do so. And so he went on. However, tonight he refers to the reply that the Prime Minister (Sir Robert Menzies) gave to a question this morning. The Prime Minister’s reply was to the effect that he considered that the Australian Government, which is the Government of this country and not the Communist Party or the people who associate with Communists, had the right to give to schools a fair and true account of the Vietnam situation as the Australian Government sees that situation and on which it has made its decisions. The honorable member stands up and says that that is a wrong use of the taxpayers’ money.
Let me assure him that’ the reason why [ asked the Prime Minister the question was that I was telephoned by the parents of certain children and asked whether the Government was doing anything to protect the minds of young children against views which those parents considered were not the views of the Government or the correct views in respect of the Vietnam situation.
– I will bet that Hitler said this sort of thing.
– Perhaps he did. I have no idea. What is the honorable member for Barton (Mr. Reynolds) protecting? I do not wish to discuss the merits or demerits of the booklet concerned. I know, the honorable member knows, and you know, Mr. Speaker, that it is advertised in all the Communist newspapers as one of the best booklets on Vietnam. I do not say that that necessarily makes it wrong. We also know that certain members of the Labour Party are appearing at certain functions. They hire music halls and town halls. They appear with people who are putting forward the Communist view which, in this case, appears to be similar to the views of sections of the Labour Party.
Now the honorable member for Barton stands up and says that not only the Labour Party’s view but also the Communist Party’s view and everybody else’s view should be put into schools or put to young children. I am not objecting to the honorable member for Yarra (Dr. J. F. Cairns) doing this, if he is doing it at his own expense. But I would like some proof that other people are not bearing some of the expense. I do not know whether they are. Let these views be put into schools. All that I asked was whether the official viewpoint of the Government of Australia, on which the relevant decisions are made, is put into schools. The headmasters and masters may make the decision on how the material is used.
The honorable member for Barton says that that is a misuse of government money. In my opinion, if the Government did not ensure that some counteraction was taken to the play that is being made in Australia for the minds of young people by people who, in my view, are not acting in the interests of Australia and unfortunately are being supported by some very weak-kneed people who have not the courage to stand up and oppose them, it would be failing vi its duty.
I am not endeavouring to prevent the honorable member for Yarra and those who support him putting pamphlets into the schools, but I do say that the Government of Australia has a responsibility to see that its view is made known. While we remain the government we have this responsibility and when the Opposition becomes the government - if it ever does - it also will have that responsibility, and I hope lt will take the action that I have suggested should be taken on this occasion.
In the Western Australian newspapers, which I just happened to look at in the Library, I noticed that a member of the Labour Party - a man whom, on the case printed in the newspapers, I respect - had received or had read a pamphlet which had been prepared by the Labour Party, apparently in Western Australia, about Vietnam. I presume that he considered this pamphlet to be subversive so he sent it to the Army Commandant in Western Australia, Brigadier Hunt. I understand that leading dignitaries of the Labour Party in Western Australia, including Mr. Chamberlain, are now calling him before the Executive because he has broken his vow or pledge or whatever secret undertaking has to be given by members of the Labour Party. In all honesty and as a good Australian, this gentleman has taken the view that the article is subversive and he has taken it upon himself to place the pamphlet before the people who are responsible for the defence and security of the Australian people, including of course honorable members on this side of the House, honorable members on the other side of the House and all the children in the schools. But is the Labour Party supporting him? No, it will take action against him.
Free speech has been mentioned. I remind the House that the Deputy Leader of the Opposition (Mr. Whitlam) was asked to appear on a television programme in Victoria. I know that in Victoria his name does not rate too highly with his confreres. I regret this because I think he is a man with a future if only he will stand up occasionally and apply his ability. But the Victorian Executive said: “No, you will not appear on television in Victoria. We will put up one of our Victorian members.” So a Victorian member who supports this outstanding Victorian Executive which, as the Deputy Leader of the Opposition has said on many occasions, appears to have associations with Communists, is to appear. Apparently the Victorian Executive feared that the Deputy Leader of the Opposition would say something nasty about the Communists.
If the Labour Party wants to talk about free speech it should permit its own members the right of free speech. It should permit the Deputy Leader of the Opposition to appear on television in Victoria. It should permit this gentleman in Western Australia - this man of honesty, decency and courage - to stand up and say that what has come from the Labour Party in that State he, for one, will not endorse, but will forward to the authorities to see whether any action is necessary. The Labour Party should permit these things before it preaches about what this Government, which is responsible for the defence and security of Australia, should do.
The Labour Party should consider its own position. It has no record of which it can be proud. It need only take heed of its own members. I do not wish to quote statements made by various people because I am fed up with doing that; but the Labour Party need only take heed of the Deputy Leader of the Opposition and the former President of the Victorian Executive who resigned because of Labour’s co-operation with Communists; it need only take heed of the Labour clubs including university Labour clubs which are now writing booklets about Labour’s association with Communism. Even if the Labour Party, as the Opposition in this Parliament has no sense of responsibility in regard to the protection of this country, this Government has.
– Mr. Speaker-
Motion (by Mr. Aston) put -
That the question be now put.
The House divided. (Mr. Speaker - Hon. Sir John McLeay.)
Question so resolved in the affirmative.
Original question resolved in the affirmative.
House adjourned at 12.10 a.m. (Friday).
The following answers to questions upon notice were circulated -
y asked the Minister for the Army, upon notice -
What arrangements are made by the Government for the entertainment of troops on active service in (a) Vietnam and (b) Malaysia?
– The answer to the honorable member’s question is as follows -
Following the Government’s decision to sponsor tours by individuals and small groups of civilian entertainers to provide entertainment for the troops overseas, my department is arranging for groups of artists to visit South Vietnam, Thailand and Borneo at regular intervals. The first party is expected to leave Australia before Christmas.
National Service Training. (Question No. 1324.)
n asked the Minister for
Labour and National Service, upon notice -
– The answers to the honorable member’s questions are as follows -
x asked the Prime Minister, upon notice -
– The following information has been provided by the Secretary of the Trust in answer to the honorable member’s questions -
I should like to make it clear to the honorable member that these funds are provided by the Government through a special allocation and are not to be confused with funds arising from the sale of Japanese assets in Australia which have been disposed of in an entirely different way.
s asked the Acting Minister for External Affairs, upon notice -
– The answers to the honorable member’s questions are as follows -
i asked the Minister representing the Minister for Customs and Excise, upon notice -
What was the total value of the exports of each item of trade in (a) foodstuffs, (b) wool-textiles, and (c) metals and minerals to Soviet Russia and Communist China and their respective economic groups during the past three years?
– The Minister for Customs and Excise has furnished the following answer to the honorable member’s ‘ question -
Details of exports to U.S.S.R. and China (Mainland) and their respective economic groups for the years 1962-63 to 1964-65 are contained in Appendix “A”. These figures have been supplied by the Commonwealth Statistician.
Cite as: Australia, House of Representatives, Debates, 2 December 1965, viewed 22 October 2017, <http://historichansard.net/hofreps/1965/19651202_reps_25_hor49/>.