25th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
– I direct a question to the Minister for Civil Aviation. Having regard to an announcement by the Department of Civil Aviation on 30th March last that the German airline Lufthansa had been authorised to operate one service a week, instead of the two services sought, between Frankf urt and Sydney, thus putting it on the same reduced basis as Qantas Empire Airways Ltd., and having regard to the Minister’s statement in the Senate on 18th May last that the Government had invited the German authorities to enter into a further study of the traffic flow between Australia and Germany in October 1965, I ask: What was the result of the conference projected for October last? What is the position of both Qantas and Lufthansa, and generally, in relation to air services between the two countries?
– I shall be pleased if the honorable senator will place that question on the notice paper. I do not think that decisions from the conference have yet been reached and I should like to get the latest information for him.
– I direct a question to the Minister for Customs and Excise. Is it a fact that the commercial television stations pay customs duty on imported television news film, and that the Australian Broadcasting Commission does not pay such customs duty? Seeing that there is a long-standing Convention of the United Nations Educational, Social and Cultural Organization, subscribed to by over 40 countries, which acknowledges the principle that news film should be free from customs duty, will the Minister give favorable consideration to waiving duty on imported television news film and thus follow a widely recognized international practice?
– My understanding is that duty is collected as indicated by the honorable senator and also that there is a U.N.E.S.C.O. Convention which follows the broad description that he gave. Australia is not a party to that Convention. Whether we would consider waiving duty is a matter of policy, and I shall give consideration to the question.
– I ask the Minister representing the Minister for the Interior: As the Constitution Alteration (Parliament) Bill 1965 and the Constitution Alteration (Repeal of Section 127) Bill 1965 have passed through both Houses, what period of time is allowed for the preparation of the arguments in favour of and against both proposals? What is the latest date on which these cases should be handed to the Chief Electoral Officer for distribution to the electors of Australia?
– I shall obtain the information for the honorable senator from the Minister for the Interior.
– I direct a question to the Minister in Charge of Commonwealth Activities in Education and Research. Is it a fact that for many years the Government has made an annual grant to the Australian Council for Educational Research? Can the Minister inform the Senate whether the Council has made any request for an increase in its annual grant and, if so, whether any decision has been taken in that respect?
– The answer to the first part of the honorable senator’s question is “ Yes “; the answer to the second part of his question is “ Yes “; and the answer to the third part of the question is “Yes”. The Commonwealth Government which for some years has been providing £7,500 a year, on the basis of matching grants from the States, to the Australian Council for Education and Research, has decided, on the request which the honorable senator mentioned, to double its subsidy. The Commonwealth will now make £15,000 a year available, subject to matching grants by the States and I understand the States are prepared to provide these matching grants.
– My question is directed to the Minister in Charge of Commonwealth Activities in Education and Research. I ask him whether he is aware of the candid statement with particular reference to the Vietnam issue, which appears at page 314 of the latest edition of the Communist Party’s weekly “ Communist Review “, to the effect that right wing intellectuals are reluctant to speak on and debate issues on the side of the Government because - I quote the actual statement - the cause is in the ideology of right wing intellectuals, who are motivated by personal interest for their careers, which might be damaged.
Is this confirmation of suggestions arising from the Knopfelmacher case that all academic freedom has been eaten away in our universities and that an academic does not endanger his promotion by being neutral or left wing’ but runs risks of loss of advancement by being anti-Communist or right wing?
– I am aware of the statement to which the honorable senator referred. I do not think that what has occurred in the Knopfelmacher case is an indication that academic freedom in our universities is being eaten away, but it could well be that many people would believe that Professor Knopfelmacher was not appointed to a post because of his stand against Communism in other places and no doubt it could well be, as is suggested by the “ Communist Review “, that other people will hesitate to express their opinions against Communism in case they receive the same sort of treatment, it is well known that Communists, while always claiming complete freedom to express their own views without being attacked for so doing, are ready at all times to bring pressures, ranging from the physical to the financial, to bear on those who oppose them.
– In view of the public interest in the matter, will the Minister for Health clarify the statement, as reported in the Press of 6th December, allegedly made by Dr. Drake, who is stated as being Director of the Victorian Cytology Service at Prince Henry Hospital,- in relation to early detection of certain types of cancer? In particular, will he state the full list of types of cancer for which this method of detection is regarded as providing a correct diagnosis, and also the centres where such methods of diagnosis are practised?
– I made some inquiries of the Minister for Health, who has supplied the following answer: The statement made by Dr. Drake is generally correct. The technique referred to can be used to detect many forms of cancer which invade body cavities, excretions from which can be examined microscopically. This technique has been most successfully applied to early detection of cancer of the cervix, but can also be applied with varying degrees of success to some other forms of cancer such as cancer of the lung, cancer of the stomach and cancer of the lower bowel. Facilities for applying this examination technique to detect cancer of the cervix exist in the Australian Capital Territory and in most States. Hospitals in most major centres are able to carry out this test for other forms of cancer and in many cases the value of these methods of diagnosis are still being evaluated. In some cases there are more effective methods of early diagnosis, such as X-ray examination. For the information of the honorable senator, I think it is worth while mentioning that this morning’s newspapers and radio news broadcasts contained a statement made by the Minister for Health in New South Wales. He was quoting the New South Wales Cancer Council to the effect that one cancer case in three can be cured. Without any additional information available to the Cancer Council, it is anticipated that eventually two cases out of three can be cured. No doubt this will be of interest to the Minister and to honorable senators.
– Has the Minister representing the Acting Minister for External Affairs read a report that the British Foreign Secretary, Mr. Michael Stewart, had stated that the Hanoi Government had repudiated reports that it had made peace overtures last year? Has the United Kingdom Minister been correctly reported? If he has, does this not show that the Communists will go to any lengths to further their aggression in Asia?
– I have seen the report of a statement attributed to the Secretary for Foreign Affairs in the United Kingdom, Mr. Stewart. He is reported to have made the statement in the House of Commons and a report of his speech would appear in “ Hansard “ of that House. It was to the effect that the Hanoi Government had repudiated any suggestions that the United States of America had turned down offers for negotiations made by North Vietnam. This speech was corroborated on 25 th November in an article published in “ Nhan Dan “, the official publication of the North Vietnamese Government. Referring to this matter, the article in that publication stated that some American newspapers had even fabricated a legend that Hanoi had made proposals for peace negotiations which had been turned down by the Johnson Administration. I hope that following the statement by the United Kingdom Foreign Secretary, which has been corroborated by a statement in an official publication in North Vietnam, we might hear less in future of the suggestions that proposals for negotiations had been turned down by the United States of America. Suggestions to this effect have been used in Australia in an endeavour to cast doubts on the policy of the United States and they appear to me to have been completely disproved.
– I direct a question to the Minister in Charge of Commonwealth Activities in Education and Research. Is the Minister aware that in at least three States, irregularities have occurred in the public examinations currently being held so that some students have had to defer examinations? In view of the adverse effect that these alterations in examination schedules can have on some of the students, will this factor be taken into account when deciding Commonwealth grants based on competitive results so that students in subjects so involved will not be adversely affected?
– I am not clear whether the honorable senator is talking about university open entrance examinations or secondary scholarships examinations.
– One depends on the other.
– No. They are separate and two years or more apart. I do not know whether in the case of open entrance examinations there has been something wrong in three States. I do know there was something wrong in respect of one paper, the English expression paper, in Victoria. I did not hear of others. The examinations in Victoria were concerned with entrance to the university because they were matriculation papers on which university open entrance scholarships are awarded. I have not heard of any irregularities in connection with examinations for Commonwealth secondary scholarships which are awarded to students for their last two years at school.
– I direct a question to the Minister representing the Acting Minister for External Affairs following the answer he gave to a question asked by Senator Branson. In view of the Minister’s answer which would cast a doubt as to whether peace offers were ever made from Hanoi, are we to infer that the Australian Government knew nothing about any offer of peace negotiations?
– I would have hoped that the answer given by the British Foreign Minister, which was confirmed by North Vietnam, would do more than cast doubt on the report. I would have hoped that it would have fairly effectively destroyed it. I think the honorable senator should discriminate - and I do not think he does - between offers of peace negotiations and offers to receive a surrender of South Vietnam. Over a number of months, various statements have been made by North Vietnam that provided the Americans got out and provided there was a surrender, the North Vietnamese would walk into South Vietnam. That is not an offer of negotiations.
– Can the Minister representing the Minister for Trade and Industry confirm that there is a proposal to permit the importation of canned mushrooms valued at £2 million from Formosa, thus presenting a serious threat to the mushroom canning industry in. Tasmania? ls it true that canners have indicated that they will not renew contracts with local mushroom growers and are considering placing their own well known labels on the Formosan canned mushrooms? In view of the concern expressed by those persons interested in this industry in Tasmania, I ask whether the Government has given or intends to give adequate protection to an Australian industry which grows 8 million lb. of mushrooms a year.
-I have no knowledge of the proposal to import canned mushrooms from Formosa. I suggest that if the case is as the honorable senator has presented it, the industry should take the steps available to it. First, it should approach the Department of Trade and Industry with a case for the Special Advisory Authority. Then, if the case is proven, the industry should seek a Tariff Board hearing to secure the protection which it may require against imports.
– Is the Minister representing the Acting Minister for External Affairs aware that more than 15 of the 47 people arrested during a Vietnam demonstration in Sydney on 22nd October were members of the Communist Party? Is he aware that the same people who organised the October demonstration are also organising a similar demonstration in Sydney on Monday, 13th December? Is the honorable gentleman also aware that after similar demonstrations in Western cities on 16th and 17th October and 28th November, editorials and Press items appeared in North Vietnamese and Chinese Communist newspapers implying that the demonstrations revealed a weakening of Western determination over Vietnam? Will the Minister make available to honorable senators a representative selection of English language translations of such editorials and Press reports?
– I was not aware of the precise number of individuals who were arrested during the course of a demonstration in Sydney and who were members of the Communist Party. I understood that a number of them who could be checked did turn out to be members of the Communist Party. I understood, also, that a number of other persons gave false names and addresses. I understand that a further demonstration or disturbance of some kind sponsored by the same group is being advertised in Sydney at present for the date mentioned by the honorable senator. I am aware of the obviously correlated and planned demonstrations of this kind taking place in various cities at approximately the same time and I am aware that there were comments upon them in the Press of North Vietnam and Communist China. Indeed, there is great danger that North Vietnam might well be misled by such sporadic and unrepresentative disturbances into thinking that they have the backing of the people of this country and other countries, which they have not. That danger does exist. I will see whether I can obtain from the Department of External Affairs translations of the newspaper comments requested by the honorable senator.
(Question No. 622.)
asked the Minister representing the Minister for National Development, upon notice -
What consideration has been given by the Commonwealth Forestry and Timber Bureau, either alone or in collaboration with the various State forest authorities, to the acquisition and dedication as forests of areas of land, at present under the control of the States, which are suitable for planting with exotic softwoods and need to be so planted if Australia’s future requirements are to be met?
– The Minister for National Development has supplied the following answer -
The answer to this question is partly provided in the answer given to an earlier question by the honorable senator, which was published on page 1388 of Senate “Hansard” for 10th November 1965.
The acquisition and dedication of timber land as national forests is a matter for the State Governments and the forests remain under the control of the States, irrespective of whether the forests are used for growing hardwoods or exotic softwoods.
However, the Commonwealth Forestry and Timber Bureau has collaborated with State forest services for many years in assessing the availability ofland suitable for national forests. An assessment has recently been made of the total area of land which is suitable and could be made available for softwood timber planting. The assessment has indicated that there are about 4,300,000 acres of such land in Australia.
(Question No. 700.)
asked the Minister representing the Prime Minister, upon notice -
– The Prime Minister has provided me with the following answers to the honorable senator’s questions -
Chen had already been in Australia and, as the records showed that Mr. Chen was born in mainland China, because it was thought to be undesirable, on humanitarian grounds, to enforce his deportation there. It was not until 1965 that it was first indicated that Mr. Chen may have been born in Taiwan and could be repatriated there. In March 1965 the New South Wales Department of Public Health informed the Department of Immigration that Mr. Chen had stated that he came from Taiwan and that he wished to return home. The question of Mr. Chen’s repatriation to Taiwan was subsequently followed up and arrangements were made for Mr. Chen’s transport to Taiwan accompanied by an escort from the Gladesville mental hospital at Commonwealth expense. Mr. Chen left Australia on 15th October 1965.
(Question No. 725.)
asked the Minister representing the Minister for Territories, upon notice -
– The Minister for Territories has now supplied the following answer -
(Question No. 749.)
asked the Minister representing the Prime Minister, uponnotice -
– The Prime Minister has provided me with the following answer to the honorable senator’s question -
(Question No. 754.)
asked the Minister for Customs and Excise, upon notice - 1.Is it a fact that the rayon industry conducted by Courtaulds (Aust.) Ltd., at Tomago, New South Wales, recently dismissed 130 employees, while a further large number had their earnings reduced, allegedly due to Japanese imports?
– 1. From enquiries I have made, I understand that Courtaulds (Aust.) Ltd., did recently dismiss 130 employees, while a further number had their earnings reduced because of a curtailment in overtime. This was, I understand, due to the falling off in demand for the company’s rayon tyre cord which resulted in part from imports of complete tyres and reduced sales of locally produced tyres in country areas affected by the drought.
(Question No. 759.)
asked the Minister representing the Acting Minister for External Affairs, upon notice -
– The Acting Minister for External Affairs has furnished the following replies -
(Question No. 761.)
asked the Minister representing the Minister for External Affairs, upon notice -
– The Acting Minister for External Affairs has furnished the following replies -
– I present the following reports of the Public Accounts Committee -
Seventy-fourth Report - Expenditure from Advance to the Treasurer (Appropriation Act 1964-65);
Seventy-fifth Report - Expenditure from the Consolidated Revenue Fund for the year 1964-65.
I ask for leave to make a short statement.
– There being no objection, leave is granted.
– These reports relate, respectively, to expenditure from the Advance to the Treasurer and to other expenditure from the Consolidated Revenue Fund in 1964-65. The question foreshadowed in your Committee’s Sixtieth Report, of the desirability of conducting one or two inquiries into these matters and involving one or two reports did not arise in respect of the financial year 1962-63 as the limited time available to your Committee precluded the completion of one large comprehensive report; nor did it arise in respect of the financial year 1963-64 as your Committee confined its inquiry in respect of the financial results for that year to an examination of expenditure from the Advance to the Treasurer.
In approaching its inquiry into the Consolidated Revenue Fund results for 1 964-65, your Committee considered that, as several departments would be involved in respect of expenditure from the Advance to the Treasurer and other expenditure from the Consolidated Revenue Fund, considerable economy of time would be achieved if a single inquiry were to be held but that, as the subject matter relating to the two matters was clearly distinguishable, two separate reports should be submitted to the par?liament
In its previous report relating to expenditure from the Advance to the Treasurer in 1963-64 your Committee drew attention to the unsatisfactory nature of some of the explanatory statements submitted by departments and indicated that discussions would take place between officers of the Department of the Treasury and the Committee to produce a suitable pro forma statement for use by departments in connection with the inquiry in 1964-65. Your Committee’s examination of the explanatory statements submitted by departments this year and based on the pro forma statement which was duly developed showed a very substantial improvement in the quality of the explanations submitted. < At the same time, experience in the use of the pro forma statement showed a need for further refinement and your Committee is desirous that further discussions occur between it and representatives of the Treasury in this refining process. During the preparation of the pro forma statement for use in connection with expenditure from the Advance to the Treasurer, your Committee developed an additional pro forma for use in the examination of items of expenditure where overestimating had occurred. The use of this pro forma by departments provided us with information on a uniform basis and in each case showed the history of estimating and expenditure for a period of three years.
As the Seventy-fourth and Seventy-fifth Reports show, your Committee discovered, during the course of its inquiry, several instances in which errors had occurred and had not been detected in time for their correction to be effected in the Additional Estimates. Your Committee has commented appropriately on such circumstances where they have occurred and we believe that they reflect adversely on the departments concerned. The inquiry also showed that, as in previous years, there were explanations for variations from the estimate, which, due to unforeseen circumstances, are acceptable. The inquiry also revealed, however, examples of unsatisfactory estimating where over-confident expectations had not been borne out in reality.
As in some cases the evidence submitted disclosed a lack of appreciation of the considerations which should be taken into account by departments in the formulation of their estimates, your Committee has again enunclated in both the Seventy-fourth and Seventy-fifth Reports, the following principles for departmental guidance -
Each particular estimate should comprise a realistic assessment of the amount expected to be required, based on tha information available to the department when the formulation of estimates is being made.
Estimates should not make provision for proposals that are of such an uncertain nature that the department is unable to determine what payments, if any, will bc made.
Experience, wisely evaluated, should be used as the basis for formulating estimates relating to recurring expenses, and
The use of the Advance to the Treasurer should be confined to those items of expenditure which could not have been foreseen in time for their inclusion in the original or Additional Estimates.
I commend the reports to honorable senators.
Ordered that the Reports be printed.
– I present the following report of the Public Works Committee -
Erection of Commonwealth offices, Perth, Western Australia.
I ask for leave to make a statement.
– Order! There being no objection, leave is granted.
– The summary of recommendations and conclusions is set out below. Alongside each is shown the paragraph in the report to which it refers.
– by leave - I wish to inform the Senate that an Australian civil aviation delegation has reached agreement with the Austrian authorities on the text of a permanent air services agreement between our two countries. Honorable senators will recall that I informed Parliament in my recent Department of Civil Aviation report that the Austrian authorities had notified their willingness to negotiate a permanent air services agreement with Australia. This followed a preliminary exchange of views earlier this year between the Australian Director-General of Civil Aviation and the Austrian Director of Civil Aviation. Pending the outcome of these negotiations, Qantas was authorised to operate two services a week through Vienna under a temporary arrangement with the Austrian authorities. Qantas has been operating these services since April.
Negotiations were held in Vienna from 29th November to 3rd December. I have now received word from the Australian delegation that the talks were conducted in a most friendly spirit and resulted in the initialling of the text of a permanent agreement. The new agreement is, of course, subject to approval by both Governments. However, the way is now clear for us to place our aviation relationships with Austria on a permanent and mutually satisfactory basis. I might add that the Austrian airline has no intention of operating services to Australia for the present, although the agreement will enable it to do so when it desires.
Appointment of Joint Select Committee
Motion (by Senator Henty) proposed - (1.) That the Senate concurs in the resolution transmitted to the Senate by Message No. 249 of the House of Representatives relating to the appointment of a Joint Select Committee to inquire into and report on certain matters in connection with the new and permanent Parliament House. (2.) That the resolution, so far as it is inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders; and (3.) That the foregoing resolutions be communicated to the House of Representatives by message.
– The Opposition supports the motion proposed by the Leader of the Government in the Senate (Senator Henty). There is no need for me to go into detail on it. My purpose in addressing myself at all to the motion is merely to direct the Senate’s attention to two Government assurances that were given in relation to the matter when the motion was floated in another place. One came from the Prime Minister (Sir Robert Menzies) and the other from the Attorney-General (Mr. Snedden). The Prime Minister made it clear that despite the fact that the question of the site of the new Parliament House was not made a specific term of reference, nevertheless, any member or members of the Committee would be free to make in the Committee’s report such observations on the question of the site of the new Parliament House as he or they may desire. The other assurance, that given by the AttorneyGeneral, related to the environment of the new Parliament House. The AttorneyGeneral said -
I am authorised to say that the Government would regard the matter of environment as coming within the scope of the Committee.
Senator WRIGHT (Tasmania) [3.471. - I have now for almost two years had on the notice paper of this chamber a motion that the Senate should consider for itself the decision as to the site appropriate for the new Parliament House. When, in the autumn session, the Prime Minister (Sir Robert Menzies) indicated his intention to submit a motion of this character, I indicated that I would think it inappropriate that one chamber of the Legislature should proceed to a decision upon the matter when the two chambers of the Legislature were about to constitute a committee to go into matters affecting the working arrangements in the new Parliament House. I could not conceive that any Joint Committee of the two Houses of the Parliament would be so reverse in its thinking as to enter upon a consideration of working arrangements without in the first place, as a foundational matter, considering the site that should be appropriate for the Parliament House. After certain manoeuvres and the time necessary to make them, this motion is now before the chamber.
We have all had an opportunity to peruse the terms of it, which make the subject matter of reference to the Committee -
the accommodation needs of -
whether, and, if so, to what extent or in what manner, the following should be accommodated in the Parliament building:-
I pause just to underline the emphasis that I give to the idea that it is entirely proper that a parliamentary committee should consider those items. The other reference to the committee is in these terms -
I must say that I am indeed complimented by the deftness with which the draftsmanship of this motion avoids any recognition of the idea that the Senate might have been taking an interest in the site of the new Parliament House. I digress here to pay respect, in a very sincere way, to a former member of this chamber, ex-Senator McCallum, who presided over the Senate select committee, the work of which led to much of the subsequent interest in the development of Canberra. I also pay respect to our lamented colleague, Senator Vincent, whose last words in this Parliament in my presence - not on the floor of the chamber but elsewhere - were an expression of opinion on the siting of the new Parliament House. He, too, took quite a notable part in the proceedings of the select committee, as did Senator Hannaford, Senator Wood and several Opposition senators.
– Senator Tangney and ex-Senator Ryan were members of the committee.
-I am grateful to the honorable senator for that reminder.I wish to say how much indebted I am to the Minister for the Interior (Mr. Anthony) for the courtesy he extended to me within a short time after he took office. I am indebted also to the Commissioners of the National Capital Development Commission who, recognising my interest in this subject as disclosed by the motion standing in my name on the notice paper, arranged for me to be taken to various points in the city so that I could assess the merit of the proposed sites for the new Parliament House. To the Commissioners, I pay my unstinted compliment, whatever it is worth, for their resourcefulness, their constructive attitude to their task, and their great courtesy.
In the papers entitled “ Siting of House of Parliament “ that were supplied in preparation for a debate on this subject in the autumn sessional period, there is, under the heading “ National Capital Development Commission “, a statement that a Cabinet decision was made in 1958 with regard to the siting of the new Parliament House. On 28th August 1958, Mr. Aston, the honorable member for Phillip in another place, asked a question of the then Minister for the Interior, Mr. Fairhall, on this matter. The Minister replied that a decision, “ in principle “ had been taken regarding the location of a proposed new Parliament House. I do not wish to debate the pros and cons of the siting of the new Parliament House in discussing this motion. All I wish to indicate is that I propose to move an amendment to include, as an express reference, that the Committee shall inquire into and report upon the site for the new Parliament building, as it is called in the notice of motion that we are considering. I believe that the site is a fundamental matter for a joint select committee of the Parliament to consider if it is to assess adequately such matters as accommodation for members of Parliament and their staffs, for the Executive, and for the Press and other communication agencies. Unless it is assumed that Parliament has reached a decision on this matter, there seems to be a slight hint of discourtesy to those who think it is a matter that could properly be reported on by the Select Committee in the suggestion that the site is merely incidental to the matters I have mentioned. As a method of conduct of parliamentary business I find it very odd indeed that we have merely a statement by the Prime Minister (Sir Robert Menzies) of acceptance of a suggestion by the Leader of the Opposition (Mr. Calwell) and that those two honorable gentlemen should be able to make an agreement as to the meaning of this motion. We have before us a parliamentary motion. We are going through the process of considering it because it1 is a deliberative resolution of the two Houses of the Parliament’. I would have thought that it would express a deliberative intention. It is in that sense that T move -
Before paragraph (a) of section (1.) of the terms of reference, insert the following paragraph - “ (a) a site for the Parliament building;”
To show that this question is in the minds of very eminent people and people of experience and skill in the subject, I remind the Senate that the National Capital Development Commission has pointed out in the papers supplied to us that as recently as 1955 the Senate Committee favoured the Capital Hill site. So also did the joint report on Parliament House in 1957 which I understand was a submission tendered to the Parliament under the aegis of the President of the Senate and the Speaker of the House of Representatives. The preference has gone in favour of the lakeside site only since the visit of Sir William Holford who submitted his report to the Government on 15th May 1958. Sir William was good enough to say in this report -
I have given a great deal of thought to the location of the permanent Parliament House, which is likely to be the largest and the most monumental building in Canberra,
He added -
My own conclusions differ from all the opinions I have heard and read; but they are, of course, based on topography, and on what can only be a personal idea of the unity and integrity of the plan of Canberra as a whole. I can only ask that they should be considered along with the others.
It was in those terms that Sir Wiliam Holford expressed a view favorable to the site of the shore of Lake Burley Griffin. It is also pertinent to remind ourselves that Sir William made a subsequent visit to Canberra in 1965 and he was reported in the “Canberra Times” of 17th April 1965 to have said this -
There is obviously a great deal to be done in Canberra in the next seven years.
There is a new Parliament House to be planned, located - and I underline located - and designed as well as a national gallery of art with other exhibitions and museum space to give a worthy home to national treasures already accumulating.
I read the whole text to show that Sir William placed emphasis in August 1965, on the occasion of his second visit to Canberra, upon the fact that a decision had then yet to be made on the location of a permanent Parliament House.
– He was out of date. He had not realised that a decision had been made in 1958.
– A decision in principle was made in 1958. It rather escaped any significance and people attached very little to it. We had the benefit, then of the Thirteenth Australian Architectural Convention held in Canberra in May 1964. As reported in the “Canberra Times”, consequent upon that conference the result of discussions was that there was almost an evenly divided opinion amongst those experts as between the two sites. Honorable senators will be reminded that committees have made comments upon this matter in 1923, 1927 and 1955, to which I have referred. I do not wish to go into the comments of those committees, having stated the facts which I would claim show that it is a very serious question still to be decided even in the minds of the most eminent in this field and ought to be an express subject of reference to a joint select committee to recommend to the Parliament a site for the new Parliament House.
I was expressly told when I was taken by the Commissioners - about 18 months ago, I suppose - to the site at the lakeside, that the clearing of the site had taken a certain amount of money but it would in no way be wasted if a decision were made for the siting of the new Parliament House on Capital Hill. I would feel, even in the briefest reference I am making to the subject, to be lacking in completeness if I did not bring before the chamber the statements of the Commission which were circulated to the Senate in April or May last. The Commission then told us, first, that the investigations carried out over the past five years validated the view that the lakeside site is eminently satisfactory in all technical respects. Secondly, it went on to say that the site had been prepared for the new building. Thirdly, it said that the site was eminently suited for a large building and in paragraph 4 referred to a preference for the lakeside site from the point of view of traffic.
Fifthly, it referred to the triangular structure of buildings that would be provided. Sixthly, it referred to the aesthetics of the location. Seventhly, it commented on the lakeside site in relation to the defence establishments. Eighthly, it said that a change in the present proposal would mean that much of the time and effort spent in surveys, investigations, design and site preparation would be lost. Ninthly, it said that Camp Hill was out of the question because of the location of this building. Tenthly, it said that Capital Hill will have a strong appeal as an alternative because it is a prominent topographical feature from some parts of the city. However, it is not readily visible from Parkes Place, which has become the traditional centre of the Capital. That is an important paragraph. In paragraph 1 1 the Commission stated that the location of a very large building on Capital Hill would appear to necessitate the removal of a substantial part of the crown of the hill. In paragraph 12 it stated that as Canberra increases in size, Capital Hill will become virtually an island within a major traffic circle.
In paragraph 13 the Commission stated that the additional cost of development on Capital Hill was a factor to be considered. In paragraph 14 it stated that there is no doubt that a permanent Parliament House could be located on Capital Hill, but there is every indication that it would be more costly and that the location would prove inconvenient, both now and in the future.
I believe that in a hurried debate such as this, it is proper that I should put, however briefly, the arguments against my proposition as well as the arguments for it. That is particularly true when I am not arguing for a conclusion, but simply arguing for the acceptance of an amendment which makes this question an express term of reference to the Joint Parliamentary Committee. Having regard to Sir William Hoi ford’s recommendation in 19S7 that the lakeside site was simply a personal idea, that he had never read of that site or had not heard anybody express a preference for it up until then, and then his subsequent reference in August 1965 emphasising the fact that a decision had yet to be taken as to the location of a new Parliament House, I would deem it my duty to ask this chamber, as one of the Houses of Parliament, to accept the viewpoint that a joint select committee that we all approve of should take into its cognizance this question of location as an express term of reference.
THE DEPUTY PRESIDENT (Senator Drake Brockman). - Order! Senator Wright, it is not in order to move an amendment to a resolution of the House of Representatives. I draw your attention to the fact that the procedure should be by way of moving for a modification. This can be done by moving an amendment to Senator Henty’s motion to the effect that the Senate concurs in the resolution, subject to the modification to the resolution which you move at the end of the first part. The honorable senator may move to add the words of his modification of Senator Henty’s motion.
– I am most obliged to you, Mr. Deputy President, for your assistance on these procedural matters. I shall adopt that advice. I move -
At the end of part 1 of the motion add “ subject to a modification, namely, before paragraph (a) of section (1.) of the terms of reference, insert the following sub-paragraph - (aa) the site for the Parliament building;’.”.
.- I second the motion. I was a member of the Senate Select Committee on the Development of Canberra. I might also mention the name of Senator Benn, because Senator
Wright forgot to mention that he also served on the Committee. I am concerned that the resolution before the Senate does not give to the proposed Committee any real authority in respect of any suggestion or decision on the siting of Parliament House. It emerged out of discussion that it is quite within the scope of members of the Committee to express opinions, but I feel that the decision on the siting of the new Parliament House was taken by a rather unusual step. We heard in the information read out by Senator Wright that apparently Cabinet made a decision in principle. I think that much more than that is required. Parliament House is not something which concerns just the Cabinet; it concerns the Parliament as a whole, and the people. There fore, the Parliament itself should have a much stronger voice in regard to the siting of Parliament House.
Senator Wright has quoted several opinions about where the new Parliament House should be erected. Recently, Sir William Holford, this man who came out from England, made a statement about the lake site. I know that some people take the view that everything must be copied and that we should have the same as they have in London or England. I believe that we should apply our own thinking to this matter and should not always be dominated by what happens in London. There are other cities which have a Parliament House and structures which are sited much more beautifully than buildings that are alongside the Thames. Some of those buildings are sited on an eminence. Any Parliament House should be so sited.
– They are much more sweetly sited, too.
– Yes. Canberra is a parliamentary city and it always will be. Therefore, the dominant feature of the city should be Parliament House, so that when people come to the city they will be able to see the building. Down on the shore of the lake would be a most inconspicuous place on which to build the new Parliament House. I cannot help thinking that an opportunity will be lost if the advice of Sir William Holford is taken. Many other people have discussed this matter and have arrived at other decisions. For example, the
Senate Select Committee on the Development of Canberra said in its report -
Much can be said on this subject-
That is, the siting of Parliament House - which came under very interesting discussion when the plans for the construction and siting of the provisional Parliament House were being examined in 1923. Opinion at that time was fairly evenly divided on the subject, but the Senate Committee finds support for its attitude in the opinion of the late Right Honorable William Morris Hughes, who stated -
This is very interesting -
The building on Capital Hill, whatever it be, will dominate the landscape and be the most prominent architectural feature in the lay-out of the city. Having regard to the architectural features of Rome, Athens, Washington, and all the other great capital cities of the world, the most important building in Canberra should be that in which Parliament sits . . Therefore the dominating site at Canberra should be utilised for Parliament House.
The Committee’s report continues -
With these sentiments the Senate Committee agrees. It is to be noted, moreover, that the existence of the present provisional Parliament House, which has marred the vista from Camp Hill, b itself a serious objection to the placing of a permanent building on the original site.
That was Camp Hill. Then the Committee said -
That there are some physical difficulties associated with the construction of a large Parliament House on Capital Hill is obvious. Much of the earlier criticism of such a proposal was based on the amount of levelling of the summit which would be required. Difficulties of this nature would now appear less important, however, with modern earth-moving equipment available. The Senate Committee is therefore of the opinion that Griffin’s nebulous plan for a “Pantheon” should be discarded, and plans prepared with Parliament House as the dominant feature of Capital Hill.
I draw the attention of the Senate to the opinion of Dr. Karl Langer whose eminence as a town planner is not surpassed by that of Sir William Holford. This outstanding British town planner and architect was brought to Australia by the then Prime Minister, Mr. Chifley, to advise and to help in the redesigning of Australian cities and towns. Dr. Langer now lives in Brisbane. The Senate Select Committee on the Development of Canberra said this about Dr. Langer’s opinion -
The opinion given by Dr. Langer supports the Committee’s view. After studying the aspect from the top of Capital Hill, he said, “I measured in grades the appearance of the Australian and American War Memorials in order to get the reciprocal height and bulk of the proposed Parliament House which would be required at the end of the axis. I came to the conclusion that a tall, wide and impressive building is needed to fulfil the function of a focal point at the end of the long vista “.
It will be seen that Dr. Langer said that in his opinion Capital Hill was the place where a new Parliament House should be built. I know that when Dr. Langer came to this city to give evidence - his . evidence impressed people very much - he went to the trouble of climbing Capital Hill and measuring it-
As Senator Wright and Sir William Holford have pointed out, surely this is a matter that should be gone into very thoroughly by a committee that is representative of the Parliament and not just the ministry. I believe that Senator Wright’s amendment is extremely important. What the new building will house is not the whole matter. The siting and architecture of the building are particularly important. When decisions are being made about the architecture of the building, and particularly if a competition is decided upon, we should make sure that the design is kept within certain financial limits and is not dealt with as was the Sydney Opera House. A man who designed a grandiose building without regard to its expense would have an unfair advantage over a man who was honest and kept within the limits of a competition. This is a very important matter for the consideration of any committee that is appointed. As one who has been extremely interested in town planning for many years, I urge the Parliament to consider this matter very seriously. It is on record in my own city of Mackay that, when I first had a town plan drawn up, there was no town planning legislation in Australia. As Senator Gair knows, it was from that beginning that town planning legislation in Australia flowed.
The siting of the new Parliament House might not seem to some people to be very important. I think it is extremely important. When people come to Canberra they naturally ask where Parliament House is. As the Right Honorable William Morris Hughes said, Parliament House should be the dominant feature of the city. That should be borne in mind by both Houses of the Parliament and by the proposed committee. As I said before, I have much pleasure in seconding the amendment. I believe that, if it is accepted, it will widen the Committee’s function and will make its work of much more value than that envisaged in the original motion.
– I support the amendment that has been moved by Senator Wright. However, I do not intend to enter into a discussion on the pros and cons of the two alternative sites that have been suggested for the proposed new Parliament House. I am more concerned about the work that will be performed in the new building and the standard that will be set by those who will be privileged to represent the people of Australia in it. It is not the building that makes a Parliament good or bad, but those who are accommodated in it.
My immediate concern is the membership of the proposed joint select committee. Whilst the proposed committee substantially meets with my approval, I protest as vigorously as I can against the exclusion from, or the failure to make provision for the appointment to, the joint committee of a representative of the Democratic Labour Party, which represents no fewer than 500,000 electors of Australia. All of those people, in addition to being electors, are taxpayers who will be required to accept and certainly will not be exempt from, the responsibility of sharing in the cost of this edifice. I believe that the exclusion of a representative of the Australian Democratic Labour Party from this Committee shows the scant consideration which is given to the representatives of the people in this Parliament.
– The Senate’s representatives on the Committee should be elected by this chamber.
– I agree.
– It is an arrangement between two parties to exclude another party.
– Let this be a solo and not a duet. I will get on with what I have to say, and then other honorable senators will have an opportunity to express their views. It is quite proper that the President of the Senate, the Speaker of the House of Representatives, the Prime Minister and the Leader of the Australian Country Party should be members of the Committee. But
I point out that the percentage of the overall vote gained by the Country Party in elections conducted in this country is very little greater than that gained by the Democratic Labour Party, whether it be for House of Representatives elections or for Senate elections. If the Country Party is worthy of having a representative on the Committee - and I am not disputing that it is - I think that the Democratic Labour Party has an equal claim.
The Leader of the Opposition in the House of Representatives also is to be a member of the Committee. Since I have been in this chamber it has been very difficult for me to determine who is the Opposition in this Parliament. I find it difficult to believe that a party which clings so closely to the Government and consistently supports the Government’s measures can claim to be the Opposition in this Parliament. However, as the Australian Labour Party is the officially recognised opposition, it is entitled to representation on the Committee.
– Even the Democratic Labour Party was divided recently.
– That is so. It was a very important matter. A proper analysis of the question would show that I was on the right side. I was opposed to the principle of giving an increase to gentlemen in receipt of a salary of between £8,000 and £10,000 a year, who have security until the day they die and whose widows have security, while other people were unable to obtain minor increases, and while governments were saying amongst other things: “ We will reduce the daily allowances to hospitals that cater for the incurably sick “. 1 was opposed to granting any increase in judges’ salaries, just as I was opposed to the salary grab for which this Parliament was responsible in October 1964. However, 1 am not here to explain my vote on that issue. Mr. Deputy President, if I proceed along this line I know that you, with your alertness, will correct me. However, 1 want to register a strong and vigorous protest against the exclusion of a representative of the Australian Democratic Labour Party from the proposed Joint Select Committee. I shall oppose the motion.
– I am delighted with mis proposal to set up a Joint Select Committee for the purpose of studying the erection of a new and permanent Parliament House. I think it is very fitting that the President of the Senate (Senator Sir Alister McMullin) is to be Chairman of the Committee. It is well known to honorable senators, but not perhaps to the public, that over the years the President has done a terrific amount of work on this very subject. It is probably also known to honorable senators that the Clerk Assistant of the Senate, Mr. Bullock, has given the President great and valuable assistance in the work that he has done to the present time.
– He was secretary of the Select Committee in 1955.
– -I believe that to be so. I was going to say that I hoped the President, in his capacity as Chairman of the Committee, would see that Mr. Bullock was available to the Committee in an advisory capacity to hand on the wealth of knowledge which he must have obtained when, as Senator Hannaford reminds me, he was secretary of the Select Committee. I am not going to try to tell the President his business, but I hope that Mr. Bullock will be available to help the Joint Select Committee.
The first part of the resolution refers to “ the erection of a new and permanent Parliament House”. I place emphasis on the word “permanent” because in my opinion the fact that it is to be a permanent structure will, in itself, decide the site of Parliament House. Despite what Sir William Holford, Dr. Langer and the Cabinet have said as to where they think it should be sited, I maintain that the very fact that it is to be permanent will, in itself, decide the site. When something is permanent it is there not for 100 years, 150 years, 200 years or even 400 years.
– Is the honorable senator afraid that a building on the lakeside would sink?
– I am not going to express an opinion on any site because I believe that the Committee, in its deliberations, will decide that a particular site is the most suitable one. I do not think that we can build a Parliament House now that will be suitable in 300 years’ time. I think that nations are built on traditions and on other factors such as that. We cannot build a structure that will be suitable for as long as that. To borrow an expression of the
President, if we built a Parliament House to accommodate 300 or 400 members in the House of Representatives and half that number of members in the Senate, at the present time it would look like a barn because it would not be filled. But that does not absolve us of the responsibility to build a permanent Parliament House.
We have to build for a hundred years hence. This is why the question of the site is an important consideration. We must have a structure to which additions may be made aesthetically and which meets the whole concept of a permanent Parliament House. If we are to do that, we must provide an area of sufficient size to allow for extensions. We do not want to have the situation where, in a hundred years’ time, people will come to Canberra and say: “That was the temporary Parliament House. This other old building was to be the permanent Parliament House and now this one is the Permanent Parliament House.” The site will have to be determined by the Committee because the word “permanent” has been included in the resolution.
Mr. President, because you will be Chairman of the Committee, I want to draw your attention to sub-paragraphs (g) and (h) of paragraph (2) of the resolution. They state that the Committee shall consist of-
That is quite all right. I will go along with that. But I would like to know whether the Leader of the House of Representatives and the Leader of the Government in the Senate, and the Leaders of the Opposition in each place, will be in a position to nominate replacements to the Committee. Members of the Committee may, say, through apathy, illness, or perhaps because they have been picked for an overseas trip, not attend certain meetings. I am reminded that this matter is mentioned and that replacements can be made after the Committee has been set up.
The other factor I want to draw attention to is that in paragraph (3) of the resolu tion it is stated that members of the Committee referred to in paragraphs (c), (d), (e) and (f) - the Prime Minister, (Sir Robert Menzies), the leader of the Country Party, Mr. McEwen, the Leader of the Opposition, Mr. Calwell, the member to be appointed from this place and the member to be appointed from the other place by the Opposition, will have the right to appoint a proxy in their absence. I ask that if any one of those four people cannot attend, you, Mr. President, will direct their attention to the immediate necessity ofappointing someone as a proxy because I think it is very important that there should be full attendance at meetings of this Committee. I previously referred to the fantastic amount of work done on this matter by you, Mr. President, and I said that Mr. Bullock had given you assistance. I think this work is going to be of importance because I have heard in the last 24 hours what appeared to me to be some foolish time factors mentioned in regard to this matter. With the work you have done and the material available, if this Committee got down to work there is no reason why it should not be able to produce a report to the Parliament by, say, May or June of next year.
– Oh, no.
– I have stated that opinion. I cannot see any reason why the Committee could not do so because of the terrific amount of work that has been done. Senator Wright is entitled to his opinion. I may be quite wrong but I think that certainly the report could be presented next year. If that is so I disagree with some people who say that it will take 10 years before we see the new Parliament House. I think that that is a defeatist and unrealistic attitude. I think that 12 months would be needed to decide on the actual structure. That work will be outside the scope of this Committee and will be done by architects. Then I would hope that the building programme would be completed in 31/2 or 4 years. I would hope to see the new Parliament House here within 5 or 6 years.
I do not know whether or not I should regard the next point as coming under paragraph (1) (c) of the resolution which states -
For a long time I have held the opinion that there are people in Australia who, at the drop of a hat - to use a colloquialism - are out to denigrate the institution of Parliament, Canberra and members of Parliament. Unfortunately, when these people become vocal the Press of Australia is only too glad to give prominence to the denigration of this parliamentary system. Whether this Government is in opposition or whether the present Opposition is in government in five or six years time-
– Who is the Opposition?
– It is a bit doubtful, but for the purpose of this argument I include the people sitting on my extreme right. However, the point is that when we are faced with paying for this new Parliament House - and a figure of £15 million has been mentioned - there will be an outcry from these knockers, as I prefer to call them, that such an amount of money should be used to build another Ord River dam or to pay for another brigalow scheme or something else. Some government will have to face up to finding £15 million. I have held the opinion for quite some time that the Government should act on this matter now. The Treasurer (Mr. Harold Holt) should set aside in his next Budget £3 million, for example, for a parliament house building fund. The decision as to the amount could be left to the Treasurer. I was nearly going to refer to the fund as a sinking fund, but I would not like to sink the building before it is afloat. But some amount should be put aside each year for the next six years so that when the time comes to pay for the building the money will be available. I do not know whether this is possible actuarially but the average prudent person is in a position to put aside money for future commitments. I do not know why it should not be possible for a government to do this.
I think that this is going to be one of the most important committees set up since Federation in respect to Canberra itself. As someone said - I think it was either Senator Wright or Senator Wood - Canberra is a parliamentary city and it will be a parliamentary city. Therefore the Parliament House itself will be a key factor in it. The siting of the new Parliament House I leave to those on the Committee. We must also leave the structure to them, as to its purpose, and the designing must be left in the hands of the architects. The privilege of paying for the building will be left to the taxpayers. I support the motion.
.- I welcome the motion before the Senate which relates to a message concerning the appointment of a Joint Select Committee to consider the erection of a new Parliament House and which sets out the requirements which are obviously necessary for such a Committee. This matter has been discussed for so many years that we have now reached a stage where action of this type is imperative so that those people who will have the responsibility of designing and erecting the new Parliament House can proceed with the job. The need for a new Parliament House has become so obvious that we should be able to approach this subject with all the speed that is necessary. Therefore the Opposition welcomes the introduction of the subject into the Senate and I would like to commend all those people who have given such a lot of time and consideration over the years to it.
I cannot agree with Senator Wright’s amendment. I feel that we on this side of the chamber, after the discussions that have taken place, realise that the main thing is to get on with the job of setting up the Committee, collating all the relevant information and presenting to the Parliament a report on the needs and requirements of a future Parliament House. I deprecate the view taken by Senator Gair during the course of his remarks that this committee should have politics at the forefront of its mind. The subject is far too great and the matter far too important to everyone in Australia for the element of politics to come into it. I hope that harmony will prevail during the many hours and weeks of consideration which will be necessary before even interim reports are made in order to get the best results, and that it will supersede the political ideas of any of the individual members of the Committee.
I draw attention to the references that previous speakers have made to the site. My belief is that if the Government, which has initiated this Joint Committee, intended it to deliberate and report on the site, the Government would have mentioned that matter specifically. But the Cabinet has made a decision and if we spend our time arguing and trying to amend this motion, that will only further delay the operation of the Committee and the presentation of its report to the Parliament.
– Have not some assurances been given that the Committee’s terms of reference will include the site?
– No such assurance has been given, but an assurance has been given that the site can be discussed by the Committee.
On the subject of the site, it is rather interesting to recall that originally the Burley Griffin plan provided for Camp Hill to be the site of Parliament House. Later the Senate set up a select committee which recommended that the site be Capital Hill. Many people have felt that Capital Hill, being a prominent feature in the geography of Canberra, would be the ideal place for Parliament House. Whether or not, when the original design incorporated Parliament House on Camp Hill, it was envisaged that the present Parliament House would obscure the view from the permanent Parliament House, and whether the existence of the present Parliament House has had the effect of turning our minds to alternative sites, I will leave for others to say. I believe that the construction of the present Parliament House has altered the whole concept of the permanent Parliament House being constructed behind it, facing in the direction of the Australian War Memorial and in the direction of the base of the parliamentary triangle. The lake was a most important landmark in the development of the whole Burley Griffin concept.
– There is no argument about that.
– No argument whatever. Yet at times there were plans to abolish the lake scheme.
– There were very definite plans to do that. Definite recommendations to that effect were made.
– That is quite true. It means that nothing is impossible. I am pleased about the lake. Now that it has come to fruition, I am sure that the people of Australia are wholeheartedly in support of the lake concept.
– Especially the people who see it.
– Yes, and 300,000 people come to see it each year. I was astounded when I heard that that number of people come to Parliament House each year. It nearly equals the whole population of Tasmania. That shows the tremendous interest in Canberra that exists among the people. They come here at their own expense, by aircraft, caravans and all types of bombs. They come because of their interest in the place. They are interested not only in the Parliament but also in the other wonderful places that they can visit in Canberra, which gradually is taking form in accordance with the original Burley Griffin concept. I believe that the site of the permanent Parliament House has been settled. I believe that the Cabinet has made a decision with which I agree. The completion of the lake has created a natural position for the permanent Parliament House on the lakeside.
– But the top of Capital Hill is the apex of the parliamentary triangle.
– If the permanent Parliament House were built at the apex of the parliamentary triangle, the representatives of the people would look straight down into the backyard of the present Parliament House, which would obscure the view and deprive them of a vista across the parliamentary triangle, over the lake and up to the Australian War Memorial, which was the pivot of the original design. On the lakeside site, that vista will be opened up without any possibility of obstruction. I have heard it said that the obstruction to the vista from Capital Hill could be easily overcome by bulldozing down the present Parliament House.
– By destroying this building?
– Yes. That suggestion was put forward in good faith. Ask the taxpayers of Australia how they would like that! Another proposition is that if the permanent Parliament House were on the lake site the present Parliament House could be used for the Executive, the Library and the Press in much the same way as happens in the Congress of the United States. Underground passageways give very rapid transport between one section of the Congress and another.
– If the members of the Executive were in this building they would need a jet in order to get to Parliament House in time to vote in divisions.
– In the United States the congressmen travel by a little underground tramway. They always seem to be able to get their numbers in divisions, according to the journals of the Congress. Anything that the Americans can do we should be able to do better.
– In Moscow they do not have any divisions, do they?
– The honorable senator spends more time thinking about Moscow than I do. He would be an authority on it. He thinks of nothing else. Mr. President, I wish to quote for the information of honorable senators something that you said in your document “ Observations on the Permanent Parliament House”, which was presented on 24th May last. I believe that you struck a note that we all should bear in mind in respect of the formation of this Committee, when you said -
The new Parliament House, it is commonly agreed, must be the show-place of Canberra, the prestige building of the National Capital, the proud and impressive symbol, indeed, of Australia’s national pride, national hopes and national progress.
I believe that that should be the guiding principle of the people who will be associated with this Committee. They will have to see the vision splendid. They will have to overcome the smallness of party politics and of some foundation stone that was laid by some group of sentimental people, lt seems that the laying of foundation stones by people who wanted to have their names handed down to posterity was fashionable at one time. There are nearly enough foundation stones on Capital Hill to build the new Parliament House. I hope that considerations such as those will not influence the choice of a site which eventually has to be made.
Referring to the building itself, 1 point out that the Committee will not be able to reach any definite conclusions until after the referendum on whether the nexus between the Senate and the House of Representatives should be broken. At the present time, the Senate chamber is designed to accommodate fairly comfortably between 40 and 60 senators. The House of Representatives chamber was designed to accommodate between 70 and 80 representatives - about twice as many people. We know very well that all the facilities and amenities of the present Parliament House are inadequate. A man with the responsibilities of an electorate, a man who has been chosen to represent the people in this Parliament, should be provided with facilities adequate to meet his responsibilities and the position that he occupies here for the time being.
This will depend to a large extent on the relationship of the Senate to the House of Representatives. If the Senate is to remain with 60 members and the House of Representatives is to have practically an unlimited number of members as our population grows - it could be anything up to 400 members - provision will have to be made for that eventuality. A decision on that aspect, of course, cannot be made until the proposed referendum is put to the people. However, there are many other important matters that can be decided at this stage. One relates to the Executive. The necessity to provide accommodation in the Parliament House for ministerial staffs and the like has never been properly discussed or concluded in the Parliament. The proposed committee must make a firm decision on whether permanent accommodation should be made available in the new Parliament House for Ministers and their staffs.
Then there is the contentious matter of the presence of the Press. A decision will have to be made whether to provide accommodation for the Press in the Parliament House or whether the Press should be removed to some location where it will have decent and adequate office facilities and then be accepted into the precincts of the Parliament as a guest. For many years members of the Press have exercised the privilege of being guests of the Parliament, able to listen to the Parliament’s deliberations. I think the Press often forgets that it is only a guest in this place. As I have said, the proposed committee will have to decide on the question of accommodation for members of the
Press so that they will be able to do their job expeditiously and so that there will be no further complaints about cramped accommodation.
A most important issue that should be resolved by the Committee is the relationship of the people to the Parliament. After all, it is the essence of democracy that members of Parliament should be available to their constituents and that the people should be able, to the fullest degree, to follow the parliamentary proceedings. There should be no hindrance to the people visiting the Parliament. It is rather interesting to note that only in the past few months have we seen the first signs of recognition of the importance of the people by the provision of a rest room - though very small and inadequate - for their use. I compliment those responsible for providing this facility. It is a long felt want, and the idea should be projected into the new Parliament House.
Now let me deal with the design of the new Parliament House. I believe firmly that we should encourage the best architects to apply themselves to the design. Although many members of Parliament hold opinions and can voice constructive ideas on this matter, I believe it is one for the best brains in the architectural world. I hope the Committee will suggest how the architect, or the panel of architects as the case may be, should go about the job of designing the Parliament House. The Committee should decide whether we should hold an international competition to interest the world’s best architectural brains in the project.
– Get the architect who designed the Sydney Opera House.
– I suppose the Sydney Opera House will be one of the few lasting constructions of this generation. Although there has been a lot of criticism about the cost of the Opera House and the length of time taken in its construction, only a very few public striking buildings have been constructed in Australia over the past 40 or 50 years. There seemed to be much more public spirit 50 years ago when the construction of town halls, public meeting halls and the like were financed by public subscription, but in the great rush after the fast buck people seem to have forgotten these things. I am very pleased that the New South Wales Government decided to go ahead with the construction of the Sydney Opera House. It is of imaginative design located in a very well selected site on the edge of Sydney Harbour. It will bring some measure of praise to this generation and will leave something behind to show future generations that we existed.
We have only to look at the square glass boxes that are going up “made of tickytacky and they all look the same “ - a very true saying - to see that they are without beauty. No thought has been given to the way in which they fit into the environment. The generations which follow us will say: “What an unimaginative generation preceded us “. Thank goodness, someone had enought initiative to decide on a building of such great beauty and utility as the Sydney Opera House.
If the current rate of inflation continues, the present estimate of its cost will be only chicken feed as time goes by. In my home town is a large public building called the Albert Hall which was built in 1899, at the time of a visit by Prince Albert, at a cost of about £19,000. To put an extension onto the kitchen facilities will cost an estimated £30,000. That will give an idea of how inflation has grown and how money values have changed.
I believe that we should get on with the job as quickly as possible because if we wait for a few more years to get started the building will cost twice as much then as it will now. I hope that the two great monuments to this generation will be the Parliament House in Canberra and the Opera House in Sydney. If the Committee gets on with the job and does what is expected of it, I am sure that we will see the new Parliament House in this generation.
I agree with Senator Branson that tha committee should recommend to the Government with every force at its command that we should either start saving up for this project now or construct the building in annual stages so that there will not be one huge expenditure in one specific year. This could have damaging effects on our budgeting arrangements. Rather we should arrange to finance the project over a number of years. I hope that the Committee will come to its deliberations with an open mind. All I say to it in this regard is this: For goodness sake, do not be cheeseparing, do not bo niggardly, because you are embarking on a project which will reflect our image to visitors from overseas”. I believe that in the future thousands of overseas visitors will come to Australia because we have a great potential for tourists. Australia is growing into a most exciting country. I notice that Americans not only want to visit us but they also want to live here permanently.
– And they want to own it.
– They also want to own it. What we do in relation to the new Parliament House will reflect our attitude towards ourselves as members of Parliament and towards the nation. It is up to us to see that that reflection is of the highest credit. I wish the proposal well. I welcome it; 1 hope that it will get the support of the Senate and that no time will be wasted. The excellent work which you, Mr. President, have done over a considerable number of years in applying yourself to this matter and collating information will be of great value to the Committee. I compliment you on the work you have done. I believe that having you as its chairman, the Committee will make a very constructive start.
Senator SCOTT (Western Australia) 15.11. - I welcome this opportunity to join in the debate on the proposal for a new and permanent Parliament House in Canberra. This is the first step being taken by the Government along the long road towards the construction of this important building. I congratulate you, Mr. President, upon having been selected by the Government as Chairman of the Committee. The proposal is for the establishment of a Joint Select Committee of both Houses of the Parliament to report to the Parliament on the accommodation needs of the two Houses. Nothing in the terms of reference suggests that the Parliament wants the Committee to make any recommendation regarding the type, architectural design or site of the building; but the terms of reference provide that all matters incidental to the accommodation needs and other matters may be discussed.
The first step of the Committee must be to go into the accommodation requirements. Senator Branson has suggested that the accommodation needs for 300 or 400 years will have to be examined. 1 was rather surprised to hear him say that he believed the Committee should be able to bring in its report about May or June of next year, because the people will not decide until the referendum to be held about the end of May upon the number of members who will require accommodation. The Committee will need some evidence as to accommodation requirements of both Houses. If the referendum to break the nexus between the two Houses is not carried, we will be restricted in the size of the House of Representatives, and membership of the Senate may have to be increased.
My colleague, Senator Wright of Tasmania, seeks to have the resolution passed by the House of Representatives modified to authorise the Committee to make a recommendation as to site. One could go further and suggest that we should give the Committee power to call for architectural designs and recommend architectural features for the new building. I shall not support Senator Wright’s proposal, but I believe that it is most important that the site should receive the full attention of the Parliament. We have heard that the Senate Select Committee of 1958 recommended Capital Hill as the site, and we have heard that the National Capital Development Commission has recommended that the new building should be on the shore of Lake Burley Griffin. I have heard from a member of that Select Committee that if he had known that the lake site was to be so picturesque when the lake was completed he would have swung towards the lake site in preference to the Capital Hill site. Some very important decisions have to be made by the Government in relation to the site. I think I heard the Leader of the Government in the Senate (Senator Henty) interject to the effect that they had been made. I only hope that the Minister can assure the Senate and the House of Representatives that if Cabinet has made a decision the decision is a watertight one and will bear thorough scrutiny.
The appointment of this Committee is a first step. Canberra, being the national capital, must have a suitable building for the Parliament of Australia. Since I came here in 1949 Canberra has developed rapidly. The population, which was then about 14,000 or 15,000, is rapidly approaching 100,000. I have noticed the terrific difference that Lake Burley Griffin has made. Adverse comments that used to be heard about the lake are now no longer heard. All who live in or visit Canberra are completely satisfied with the artificial lake that’ has been provided. It had not been completed when the Senate Select Committee made its recommendation regarding the site of the new Parliament House. I mentioned earlier that one of the members of that Committee, who was probably not aware of the picturesque site down on the lake, is now in favour of it, whereas formerly he favoured the Capital Hill site. The building of a capital city is a very important step for a nation to take. I remember that in 1962, when as a member of the Inter-Parliamentary Union, I visited the city of Brazilia, the new capital of Brazil, I saw, for the first time, one of the most futuristic capitals of this modern age.
– But nobody wants lo live there.
– I think there are about 500,000 people living there at this moment. In 1957 the then President of Brazil, Mr. Kubitschek, in his desire to further the development of Brazil, decided to shift the capital from Rio De Janeiro to the present site of Brazilia, which is somewhere about the centre of Brazil. The construction of the new capital began in 1958. A city of some 350,000 people, complete with all new buildings, a lake, hydro-electric .power and all other facilities was constructed in less than four years. There is, of course, a new Parliament House in that new city. We in Australia must see to it that when we construct our new Parliament House it is equal to or better than any other in the modern world. I believe that in Canberra we can do this. I am confident that when the proposed committee inquires into the accommodation needs of the new Parliament House it will consider the likely needs of both the House of Representatives and the Senate for a very long period, as Senator Branson has suggested. Our new Parliament House must satisfy the needs of Australia for the next 200, 300 or even 400 years. I have great joy in supporting the proposal to set up a joint select committee to inquire into and report on the accommodation needs of a new Parliament House.
Senator McMANUS (Victoria) 15.131.-
I hope to make my remarks commendably brief and I know that the Acting Leader of the Government in the Senate (Senator Henry) will be relieved to hear me say that. We are discussing a motion to set up a Committee to consider a new Parliament House and to give representation on that committee to the Liberal Party, the Country Party and the Australian Labour Party, but to exclude the Democratic Labour Party. Naturally the Democratic Labour Party opposes that proposal. Senator O’Byrne suggested that Senator Gair was being unduly political when he protested. I wonder whether, if the motion had been one to give representation to the Liberal Party, the Country Party and the Democratic Labour Party, and to exclude the Australian Labour Party, Senator O’Byrne would have considered himself as being political if he had protested?
The Democratic Labour Party represents nearly half a million people - about one in
II of our voting population - who will be called upon, as taxpayers, to contribute heavily to the building of the new Parliament House. I think it is most regrettable that the representatives of half a million Australians are being denied representation on this Committee. The Committee is to consist of 18 representatives; we get the vote of one Australian voter in every 11. Surely, in justice, we are entitled to one member on it. This motion has been so drawn as to to deny the Democratic Labour Party representation of the Committee and also to deny it the right to vote in selecting the members of the Committee. Standing Order No. 351 states -
In every Message proposing to the House of Representatives the appointment of a Joint Committee, the Senate will state the number of Senators it will appoint to serve on such Committee.
Standing Order No. 352 states -
On receipt of a Message from the House of Representatives agreeing to appoint the same number of Members of that House to serve on the proposed Joint Committee, the Senate will proceed to appoint such number of Senators to serve on such Committee.
If the Standing Orders had been carried] out, even if the other Parties held their caucus meetings and decided to divide the representation on the Committee between them I would at least have had a vote in the chamber. Further, I would have been in a position to nominate Senator Gair and he would have been in a position to nominate me. But in this snide proposal, which has apparently been concocted between the Government and the party which claims to be the Opposition - lately during divisions its members have been spending so much time on the Government benches that I am beginning to doubt it - one finds that the Standing Orders which would have given me the right to vote and to nominate, are to be suspended. Instead, the representatives of the Senate on the Committee are to be appointed by the Leader of the Government in the Senate and the Leader of the Opposition in the Senate.
Everybody knows that what will happen will be this: The party caucuses will meet and proceed to elect the two representatives from each side. In that process all senators except Senator Gair and myself will vote to elect the Senate representatives. Senator Gair and I will not have a vote at any stage. The Constitution says that questions arising in the Senate shall be determined by a majority of votes and that each senator will have one vote. I am interested to find that it is now possible to suspend the Standing Orders of the Senate, to give the senate’s powers to certain people in the Senate, and to deprive others of a vote. I regard this proposal as a deliberate plan to deprive me of my rights as a senator, in the spirit, if not in the letter. I suppose it may be said that there are round about ways in which I could do this or that, but I am not interested in them.
– You have to have the numbers.
– I know and the honorable senator knows that senators on each side will vote according to what their leaders agree on.
– Not necessarily.
– In most cases they will. This proposal has been agreed on by the two leaders, the numbers will be there and the motion will be carried. I shall be denied the right to cast a vote to elect the Senate’s representatives and the right to nominate for a position as one of the Sen ate’s representatives. Why is the ordinary procedure set out in the Standing Orders being avoided? What is the good of the Standing Orders if the Government proposes to avoid them on an occasion such as this?
– It happens in regard to most committees.
Senator McMANUS__ It does not. We wanted to nominate somebody for the Library Committee; we had the right to a ballot and members of that Committee were democratically elected. But we are being denied that right in the case of this Committee. The leaders of the Government and the Opposition have met and agreed upon a proposal which deprives the Democratic Labour Party of the right to vote and the right to nominate for election to the Committee. Therefore I shall vote against this proposal and if I am able I will bring about a division on it so that we can register our emphatic protest.
Something else induces me to be of that opinion. We find that the three leaders of the major political parties in the House of Representatives are automatically members of the Select Committee but the leaders of the parties in the Senate are not automatically members. They have to run the gamut of an election. I understood that in a sense we were the senior House even if people think we are the less important House. It is obvious that this proposal has been drawn up by the two leaders in the House of Representatives. In my view it reflects their opinion of the Senate and certainly reflects the opinion of the Leader of the Opposition of the Democratic Labour Party.
– The motion I have moved in the Senate today is one by which the Government stands. Senator McManus has made some objection to the procedure that has been adopted. I bring to his notice that this procedure is common practice in the Senate. The Senate is always master of its own procedures. If Senator McManus disagrees it is open to him to oppose the motion or move an amendment. But the form of presentation of this motion is normal practice in the Senate.
– Would the Government consider amending the motion?
– The Government is not prepared to accept any modification of the motion. Speaking in the House of Representatives, the Prime Minister (Sir Robert Menzies) said -
The question of the site of the new Parliament House has not been one of the formal terms of reference. When I remind the House of earlier Government announcements on this point and of the subsequent planning of the National Capital Development Commission 1 am sore this will be understood. The Leader of the Opposition has made a useful suggestion to me. I would like to say that 1 accept it. That is that I should make it clear in my speech that any member or members of the Committee will, in the Committee’s report, be free to make such observations on the question of the site of the new Parliament House as he or they may desire.
I propose to comment now on the steps that have been taken in this matter by the Government and the advice that this Parliament has had on those steps since 1958. First, it must be clear that we have departed from the Burley Griffin plan. Whether the site on Capital Hill or by the lake is adopted, such a decision will mean a departure from the Burley Griffin plan which suggested a site on Camp Hill. Therefore, we have no allegiance in this instance to the Burley Griffin plan.
– There is very little difference.
– If Senator Wood’s considered opinion is that there is very little difference between the two sites, obviously he knows very little about them. Camp Hill as a possible site was completely destroyed in my opinion by the building of the present provisional Parliament House. I remind the Senate of the steps that have been taken since 1957 in this matter. Prior to 1957, we had a committee of the Senate which recommended Capital Hill as the site for the new Parliament House. A minority report was against that recommendation.
In 1957 the Government invited Sir William Holford to visit Canberra and report on the future development of the National Capital. He stated that Camp Hill was now unsuitable for parliamentary buildings because the presence of the provisional Houses of Parliament obscured both Camp Hill and Capital Hill when viewed from Parkes Place. In recommending that the Houses of Parliament be sited centrally on the southern shore of the lake central basin,
Sir William Holford stated that in his opinion the Houses of Parliament would be “symbolically and actually out of place” on Capital Hill. He believed that Parliament is an active democratic institution which should be housed in the forum and not on the hilltop and would be more satisfactory in the centre of the main land axis than at one end of it. Without reinforcement, he considered the main axis to be too long and too uneventful but with the Houses of Parliament, it would register a marked impression on the beholder. Sir William Holford’s report was considered by Cabinet on 7th May 1958 when Cabinet decided that the report should be referred to the newly established National Capital Development Commission for advice.
– Does the Minister suggest that this gives the Commission authority to site Parliament House?
– It is a proper authority in view of the advice of the eminent town planning authority who was brought out from England to report on this matter among others. The Government thought it proper to refer this matter to the Commission for consideration. That is what I have said. The report was examined not only by the Commission but also by its advisory body, the National Capital Planning Committee. So three different bodies have considered it. Both the Commission and the Committee agreed that if the lake was established the most fitting site for the new Houses of Parliament was that suggested by Sir William Holford. The recommendation to Cabinet from the Commission was that Cabinet be asked to take whatever steps were necessary to endorse the siting of the Houses of Parliament on the proposed lake front. The Cabinet decision of 23rd July 1958 approved this recommendation. Following this decision, the proposal to locate the future parliamentary buildings on the lakeside was widely publicised not only in the Press but also in Parliament. This was in 1958. Following the announcement, Mr. Fairhall who was then Minister for the Interior was questioned on the subject in the House by the honorable member for Phillip (Mr. Aston). In his reply on 28th August 1958, Mr. Fairhall stated that a decision in principle had been taken regarding the location of a new Parliament House.
– There was no resolution of the Parliament.
– That statement was made in the Parliament. The next substantial reference to the proposal was contained in the National Capital Development Commission’s planning report issued in March 1959. Although this report was not issued as a parliamentary paper, a copy was sent to each member of Parliament and in the same month it was tabled at a meeting of the Joint Parliamentary Committee on the Australian Capital Territory. The plans contained in this report indicated the new site of the proposed Parliament House and the text referred to the Government’s approval.
Subsequently various of the Commission’s annual reports which were tabled in the Parliament referred in a direct way to the decision, both in the narrative sections and in supplementary illustrative material. Those references indicated that the planning of the central areas had been proceeding on the basis of ‘the lakeside siting. The design and construction of the King’s Avenue and Commonwealth Avenue bridges, the regrading of Parkes Place, the design of the arterial road system, the siting and design of the new Commonwealth Avenue offices and the National Library have all been based on and reflect the decision. These proposals were placed before the Parliament as I have indicated in 1958 and 1959 and not one word was said against them. Those are the reasons why the site was not included in the terms of reference, as the Prime Minister stated in his announcement in the House of Representatives. Senator Wright referred to the technical factors involved which have a bearing on the location of the building. He read out to the Senate the factors listed by the National Capital Development Commission. I wish to mention briefly one or two others. The National Capital Development Commission is the authority which has done a magnificent job in Canberra. I do not think anybody can say that the Commission, since its inception, has not revolutionised Canberra as the National Capital. It has done a job of which we can all be proud. I think everybody would agree that it is a very competent body.
– It has made a few mistakes, too.
– The honorable senator may think so. In all enormous schemes such as the development of Canberra a mistake or two must be made. This happens in any great undertaking. I am quite sure that Parliament will agree that in the main the National Capital Development Commission has done a. magnificent job. The Commission has stated -
Parking requirements for the Houses of Parliament as now contemplated could be located within the Capital Hill site but only at very considerable cost. However, the provision of additional space for special occasions is severely restricted by the presence of the major traffic network.
Because of its comparatively rough topography and many steep slopes, any scheme for the development of the Houses of Parliament on Capital Hill must involve extensive site works and early implementation of special communication routes by way of tunnels and bridges. Cuts of between 20/ and 35’ at the top of the hill, and fills of up to 40’ in depth would be involved in producing a site on which such major buildings as the Houses of Parliament could be located. Even with this amount of heavy earthworks, the resultant building area would be only one quarter of the corresponding area at the lakeside. The cost of these works would be very considerable involving extra expenditure of the order of £1 to £2 million.
There are therefore considerable restraints on the development of the Houses of Parliament on Capital Hill. These are such that the practicability of a site development cannot be assured unless design studies were advanced to a detailed stage.
Since the report of Sir William Holford, the- whole planning of the Parliamentary triangle has been based on the lakeside site. In another place, the Prime Minister has agreed with the Leader of the Opposition that the Committee will be free to make observations on the site of the new Parliament House.
– What is the authority for that agreement in relation to a parliamentary motion?
– I am quoting what was said. The Committee could make some reference in its report to the opinions expressed as to the site for the new building. Planning has proceeded since 1958. It is well on the way. Senator Mattner asked a question about the site, and his suggestion was strongly deprecated by the National Capital Development Commission. I am confident, because I have such faith in the Commission, that it would not be prepared to go ahead with the lake site unless it were perfectly certain from tests that the foundations there were suitable.
– It is not in the terms of reference.
– It was the Commission’s decision long ago to test the foundations. A question was asked on that subject. The Government is unable to accept the modification.
– In view of the explanation that the Minister has made, it seems to me that the point at issue of the amendment has been submerged in a discussion on the subject matter of the site. Two different issues are involved. If I understand the Minister clearly, he has said that the Government has made a decision on where the new Parliament House shall be located. The Committee to be appointed may pass comments upon that decision but there can be no change in the decision already made.
The Minister has also made it clear that Cabinet has not referred the matter of the site for discussion in Parliament. Whether a matter of this type is properly to be the subject of Executive decision may be a subject for debate. Because Senator Wright has had a motion on the notice paper for over 12 months and the Senate has been denied an opportunity to discuss it, I think it is completely improper that at this stage we should not be able to seek to have the question of the site of the new Parliament House referred to and discussed by the Committee that is to be appointed. To say that the Committee may only comment on the site is, I think, to treat Parliament with contempt.
– Although I had placed my name on the list of speakers, I had declined to speak in the belief that time was limited because of a bill which was to come before the Senate. I have decided now to speak because I do not see why members of the Opposition should observe that consideration while honorable senators opposite do not. I think the issue has been somewhat confused. I am of the belief that Parliament should decide on the site for the new Parliament House. Such a decision should be made after consideration of all the relevant circumstances, including the nature of the building to be constructed. It is incorrect to say that either the lake site or the site on Capital Hill is the natural position for the new Parliament House. Architecturally, the new building must be developed to suit the site and its surround- #ings. I believe that both sites could suitably be used. i
Consideration must also be given to the type of building to be constructed. At present what are termed “ lightweight “ buildings have come into fashion, in the belief that the older types of buildings become obsolete before they are ready for destruction. An American trend today which has been adopted in Australia is that a building should be build to last a certain number of years and for no longer. While such factors need to be considered, I think the design of the new Parliament House is important. However, consideration of the design is not the function of the Committee. The function of the Committee is to advise on accommodation. That decision should be taken by Parliament. Having decided on what accommodation is required, it falls to someone then to say how to fit that accommodation into an architectural stucture. The structure is designed accordingly, and to suit the area. It would not be possible or reasonable for the proposed Committee to decide where the new Parliament House should be if it were not to decide of what structure it should be.
– And conversely.
Senator CAVANAGH__ Yes, and conversely. If the Committee is not to have a say in the type of building that is to be erected, it cannot consider its location. AH that the proposed Committee is to be asked to do is to tell somebody else, who will have to consider the matters I have just mentioned, what room and what facilities will be needed in the new building. The accommodation requirements having been determined, it will be the responsibility of somebody else to decide the other matters. Irrespective of what has happened before, I think the Parliament should decide the site of the new Parliament House. I believe that, because of the existence of modern building methods, an attractive and suitable building could be designed for either site. We cannot afford to delay the findings of the proposed committee in relation to accommodation requirements to enable it to make a decision on the structure and location of the new building.
I am not critical of the suggested composition of the Committee, irrespective of who decided it. Whilst it is true that the Australian Democratic Labour Party is represented on the Library Committee, I point out that the selection of representatives on many other committees of the Parliament is made by the chief political parties. I do not doubt for one moment that, if the Democratic Labour Party were to establish some permanency in this chamber, it would be entitled to recognition and to be represented on various committees. I suggest that so far the Democratic Labour Party has not established that degree of permanency. In the last Parliament its membership was restricted to one senator, who lost his seat at the last election. The Party succeeded in gaining two other seats at that election - it was more an accident than anything else - because of the increased vote for the Labour Party in both Victoria and Queensland. In Queensland a certain person dropped out.
– Nevertheless, the Party has improved its position and is entitled to representation.
– It has improved its position, but only in this Parliament. As I said earlier, if it can establish some permanency in the Parliament, then no argument could be advanced against its entitlement to representation on committees. The fact remains that we have a parliamentary system of government. Although some sections may praise the Democratic Labour Party for the purpose of support, no-one really accepts it at this stage. It has yet to prove that it is a permanent part of the Federal Parliament.
Question put -
That the words proposed to be inserted (Senator Wright’s amendment) be inserted.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority .. ..34
Question so resolved in the negative.
.- I move-
At the end of part 1 of the motion add “ subject to a modification, namely, delete paragraph (f) of section (2.) of the terms of reference, insert the following sub-paragraph -
a member of the Opposition parties in the Senate elected by the Senate itself.’.”
I believe that if my proposal were adopted it would be a more democratic way of giving representation to those who are in opposition in the Senate. I believe that it would give satisfaction to all sections of the Senate. I do not desire to detain the Senate in putting further argument in support of my amendment.
Question put -
That the words proposed to be inserted (Senator Gair’s amendment) be inserted.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . . . 39
Question so resolved in the negative.
Original question resolved in the affirmative.
Sitting suspended from 5.55 to 8 p.m.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Gorton) read a first time.
– I move-
That the Bill be now read a second time.
The purpose of this Bill is accurately described in its long title. It is a Bill to preserve competition in Australian trade and commerce to the extent required by the public interest. It recognises that there is a necessary relationship between competition and the public interest, and it is designed to ensure that the appropriate amount of competition is preserved. Why, it may be asked, is the preservation of competition desirable? The answer, in the Government’s view, is that competition is an essential ingredient of a free enterprise economy. Indeed, it has been aptly described as the automatic regulator of a free enterprise system. Competition tends to promote initiative and resourcefulness, with greater productive efficiency, resulting in keener prices and better goods and services. It ensures that these advantages are appropriately shared by all sectors of the com munity, and that individual traders are not deprived of business opportunities that ought fairly to be open to them.
The further question then arises whether there is a need to have legislation to preserve competition. The Government has concluded that there is such a need. Unfortunately, there is a tendency, in a free enterprise system, for competition to be squeezed out. People who should be competing tend to agree not to compete and, when this happens, free enterprise loses the mainspring of its vitality. The late President Kennedy once remarked that when an economy gets sluggish and loses vigor, you will find there are many restrictions of competition. In Australia there has been a significant tendency, in recent years, for competition to play a progressively smaller part in our economy. It has given way to what is popularly called “orderly marketing”. Orderly marketing is achieved by means of restrictive arrangements made by, and for the benefit of, the persons conducting businesses in particular industries. Prices are kept stable at levels determined not by competition but by the members of the particular industry. All members of an industry have, as a matter of practical necessity, to conform to the industry’s orderly marketing arrangements, and admission to many industries is possible only with the approval of existing members and on terms and conditions determined by them.
It is common knowledge that restrictions of competition are taking place in Australia. They have been referred to in numerous Tariff Board reports, and Sir Garfield Barwick, while he was AttorneyGeneral, published a booklet containing a table of restrictive agreements and practices that had come directly under his notice in a widespread number of industries. Royal commissions have conducted inquiries in Western Australia and Tasmania, and their reports have confirmed what was already evident from other sources. As to whether the restrictions have detrimental effects, I have already pointed out that their existence is a potential threat to our free enterprise economy; but if there is a need for confirmation that restrictions have had detrimental effects, one need look no further than the reports of the Tariff Board. In reports of the Board during the years 1963 and 1964 containing references to the existence of restrictions of competition, detrimental effects were referred to by the Board in seven cases out of eight.
The Government’s view is that not all restrictions are likely to be bad. In a comparatively small economy such as ours, there is likely to be a need for some reduction of competition in some areas, and it follows that some restrictions upon competition will be desirable. However, it would plainly be inappropriate for the question whether particular restrictions should be permitted to be left to be determined by the persons by whom, and for whose benefit, they are imposed. It would, moreover, be wrong for Parliament to make all restrictions unlawful and to rely on the discretion of the law enforcing authorities to prosecute only those restrictions thought to be undesirable. What businessmen ask for in this field of law, and ask for with justification, is that they should be able to know with certainty whether a particular business activity is or is not running the risk of prosecution. No businessman can be expected to put money and effort into promoting a deal which may at some future time be held to have been in breach of the law and involved him in heavy penalties.
The preferable course, and the one adopted by this Bill, is for restrictive arrangements to be examined on a case by case approach by an independent body called the Trade Practices Tribunal. The philosophy which runs throughout the Bill is that the agreements and practices to which it applies are lawful unless and until they have been determined by the Tribunal to be contrary to the public interest. It has been said, in criticism of this course, that Parliament would be given undue discretion to what would, in effect, be a sub-legislative body. The two answers to this criticism are, first, that there is no alternative if businessmen are to be given the certainty they re- quire, and, secondly, that Parliament can ay down, in the legislation, the precise types of restrictions it wishes the Tribunal to consider, and the policy it requires the Tribunal to observe in considering them. In prescribing that policy, Parliament can spell out guide lines which the Tribunal must follow in making its assessment.
The question has been asked: “ Why not give this function to a court of law?” The answer is that the forming of an opinion whether a restriction is contrary to the public interest, with a view to determining whether it shall become unlawful, is essentially an administrative function, and administrative functions cannot, under our Australian Constitution, be committed to a court. The Constitution requires, on the one hand, that judicial functions be exercised only by a court, and, on the other, that a court shall not exercise non-judicial functions. Since, therefore, the function under consideration cannot be given to a court, an administrative Tribunal must be created for the purpose.
The last matter I want to mention before turning to the provisions of the Bill is the matter of the Australian Industries Preservation Act. Subject to an exception in relation to ocean snipping, to which I shall refer later, the Bill proposes to repeal that Act, which covers much of the ground that is covered by the Bill. However, the Bill and the Act have quite different approaches and the two could not, therefore, operate at the same time. The Australian Industries Preservation Act makes all restrictive agreements unlawful, subject only to a defence of reasonableness in the public interest. The time for the businessman to establish this defence does not arise until he is prosecuted, and he can be punished for conduct which took place before the prosecution was instituted.
What I have already said on the subject of the need for certainty in this field will make it plain why the Government prefers the approach of the legislation now before the Senate. Moreover, because of the uncertainty involved in the Australian Industries Preservation Act and the criminal sanctions it applies, there is always a reluctance on the part of the courts to find that its provisions have been broken. The legislation now proposed, which treats restrictions as being lawful unless and until they have been examined and found to be contrary to the public interest, will be more likely, for this reason, to be put into effect than the more drastic provisions of the Australian Industries Preservation Act.
The Bill now before us makes examinable, to determine whether they are contrary to the public interest, five clearly identified types of agreements between competitors and four clearly identified types of practices. Two types of practices - collusive tendering and collusive bidding - are prohibited by the legislation itself. In the case of these two practices the Government proposes that there should be a legislative predetermination that, subject to the defences provided, the practices are contrary to the public interest, tending, as they do, to the destruction of the tendering and auction systems. The five types of examinable agreements are described in clause 35. Briefly, they are agreements between competitors, or persons who would be in competition but for the agreement, by which the parties limit their freedom to compete with each other. Briefly stated, the five matters as to which they agree not to compete are their prices and other terms and conditions of dealing, the concessions they will allow, the quality or quantity of their output, the market zones in which they will operate and the persons with whom they will deal. The agreements may relate to the supply or acquisition either of goods or of services.
If an examinable agreement relates to the supply or acquisition of goods, or of certain kinds of services rendered in connection with goods or land, as described in clause 41 of the Bill, it must be registered by furnishing prescribed particulars of the agreement to the Commissioner of Trade Practices There will be a single registry, but provision will be made to enable persons to comply with the registration requirements by lodging the necessary documents in any of the State capital cities. I shall say something more about registration when I come to discuss the Commissioner and the Register.
I have said that the Bill makes examinable five types of agreements between competitors and four types of practices. The four types of practices consist of conduct stemming from the possession of economic power. They are defined in clauses 36 and 37. They may be compendiously described as the practice of a buyer wringing out a discriminatory price advantage; the practice of a seller forcing another person’s product on a buyer; the practice of inducing, in pursuance of an agreement or on behalf of an association, a refusal to deal with someone; and finally, the practice of monopolisation.
The practice of monopolisation, as defined in clause 37, is engaged in where a person or combination in a dominant position in the trade in goods or services of a particular description, in Australia or in a part of Australia, takes advantage of that position in one of three specified ways. In considering whether a person or combination is in a dominant position, the Tribunal is directed not to take as “ a part of Australia “ 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.
Stated briefly, examinable monopolisation takes place where advantage is taken of a dominant position to do one of three things, namely, to induce a refusal to deal with someone, to engage in price cutting to substantially damage a competitor, or to impose prices or other conditions of dealing that could not be imposed but for the position of dominance. Where any of these practices is engaged in by a person or combination in a dominant position, the practice may be examined to see whether it is contrary to the public interest.
Certain agreements and practices are exempted from the provisions of the Bill by virtue of clauses 38 and 39, to which I invite honorable senators’ attention. In brief, the exceptions cover agreements and practices specifically authorised or approved by Commonwealth, State or Territory legislation, the working conditions of employees, compliance with standards approved by the Standards Association of Australia, restrictions to protect the goodwill of a business upon its sale, restrictions imposed in pursuance of statutory industrial property rights, namely, patents, copyright, restricted designs and trade marks - but these are not excepted from the practice of monopolisation - restrictions in relation to the carriage of goods by sea between Australia and places outside Australia, and exclusive dealing conditions attached to the leasing of land or the lending of money. In addition, clause 105 of the Bill authorises the making of regulations to exempt practices of certain marketing bodies.
The exception of restrictions in relation to ocean shipping is necessary because these restrictions are to be dealt with by special shipping provisions designed to meet the complex problems presented by the ocean shipping industry. These provisions are still receiving consideration by the Government, and will be introduced in the next session of Parliament. In the meantime, ocean shipping will remain subject to the Australian Industries Preservation Act 1906-1950.
The Bill provides, in clause 23, that there shall be a Commissioner of Trade Practices. The Commissioner will be appointed by the Governor-General for a period not exceeding seven years. The Commissioner will maintain the Register of Trade Agreements, and he will be the only person who will be able to bring agreements and practices before the Tribunal for examination, after he has formed the opinion that they are contrary to the public interest. The purpose of the Register of Trade Agreements is to provide a fact finding mechanism that avoids the need for extensive policetype investigations. It is not proposed to require the registration of any of the examinable practices. These practices do not lend themselves as readily as do examinable agreements to description in writing in a form appropriate for registration. To achieve its purpose as a fact finding mechanism, the Register of Trade Agreements will not need to be open to the public. It will therefore be accessible only to the administering authorities.
To supplement, where necessary, the information available to him from the Register and to obtain information as to examinable practices, the Commissioner will have, under clause 103, limited powers to require information and documents. A requirement must be in writing, and the information required must be furnished in writing. Failure to register a registrable agreement will constitute an offence punishable in proceedings before the Commonwealth Industrial Court. Clause 42(8.) provides for the granting of extensions of time for registering, and clause 43 provides a defence to a charge of failing to register, where the failure was attributable to what may be described as honest inadvertence. Failure to register will not render the agreement illegal, but the agreement will remain subject to examination by the Trade Practices Tribunal in the same manner as it would have been if it had been registered.
As I have already mentioned, only if examined and determined to be contrary to the public interest will an agreement become unlawful.
Clause 9 provides for the Trade Practices Tribunal, to which I have referred, to consist of a President, Deputy Presidents and other members. The Tribunal will be the only body with power to examine agreements and practices and to determine whether they are contrary to the public interest. A presidential member will need to have been qualified as a barrister or solicitor for a period of at least five years, and the qualification of other members is that they have knowledge of, or experience in, industry, commerce or public administration. The Bill enables any member of the Tribunal to be appointed to serve on a part time basis. The reason for this is that the work of the Tribunal will not be likely, particularly in the early stages of the operation of the legislation, to occupy its members full time.
The Government will be able, and in fact it proposes, to appoint as presidential members persons who are already of judicial status. When the services of these persons as members of the Tribunal are not required, they will resume their normal judicial duties. For the other members, the Government will be able to draw upon the services of persons who, after distinguished careers in the business world, have ceased to have responsibilities that are incompatible with membership of the Tribunal. If a member has any pecuniary interests that could be in conflict with his duties as a member of the Tribunal in particular proceedings, he is required by clause 19 to disclose those interests to the President when the President is constituting the Tribunal for those proceedings. The Tribunal will sit in Divisions constituted from a panel of members appointed for terms of years. Normally a Division will consist of a presidential member and two lay members - clause 17 (1.) - but, if all the parties agree, the Tribunal may be constituted by a single presidential member - clause 17 (2.)
Clause 21 provides that questions of law are to be determined in accordance with the opinion of the presidential member presiding and that other questions are to be determined in accordance with the opinion of a majority of the members constituting the Division. Clause 70 provides that, subject to the Act and regulations, the procedure of the Tribunal is to be within its own discretion, that proceedings of the Tribunal are to be conducted with as little technicality and formality and with as much expedition as is possible, and that the Tribunal is not bound by the rules of evidence. Except in special circumstances, hearings of the Tribunal are to be in public - clause 73. The Tribunal may refer a question of law to the Commonwealth industrial Court - clause 66 - and the Tribunal is empowered by clause 79 to receive and to act upon undertakings given to it in the course of the proceedings.
Clause 48 provides that the Commissioner shall not institute proceedings for the examination by the Tribunal of an agreement or practice unless he has first carried on, either personally or through members of his staff with adequate knowledge of, or experience in, industry or commerce, consultations with the persons who are parties to the agreement or engageing in the practice. The object of these consultations will be to render the proposed proceedings unnecessary by achieving agreement that so much of the agreement or practice as is inconsistent with the public interest will be discontinued. These consultations may, at the option of a party other than the Commissioner, be conducted on a without prejudice basis.
If such consultations are unsuccessful the Tribunal will be required to determine whether the agreement or practice is contrary to the public interest. In considering whether an agreement or practice is contrary to the public interest the Tribunal will be required to proceed in accordance with clause 50. In brief, this clause directs the Tribunal to take as the basis of its consideration the principle that the preservation and encouragement of competition are desirable in the public interest, but to weigh against the detriment in a restriction of competition any effect that the agreement or practice has to benefit -
Sub-clause (3.) of clause 50 adapts this public interest criterion so as to make it appropriate for the practice of monopolisation to take account of those cases of monopolisation which will not involve any restriction of competition. If the Tribunal reaches the conclusion that an agreement or practice is contrary to the public interest, it will make a determination to that effect and issue such restraining orders as appear to it to be proper in the circumstances. Breach of a restraining order will constitute contempt of the Tribunal, which will be punishable in the Commonwealth Industrial Court as if it were a contempt of that Court - clause 68.
Clause 62 provides for a Review Division of the Tribunal to be constituted by three presidential members, none of whom will have presided over the proceedings under review, and subsequent clauses enable this Division to direct further consideration of a matter. The Review Division may direct such a reconsideration upon any of three grounds, which are set out in clause 63. They are -
The Review Division is required by clause 64 to indicate the matters which, in its opinion, call for reconsideration, and the reconsideration is, as far as possible, to be confined to these matters. The reconsideration will be conducted by a Tribunal constituted by one presidential member and two other members. It probably will, but need not, be constituted by the same members as constituted the Division responsible for the original determination.
Division 2 of Part VI contains provisions that will enable parties to examinable agreements or practices to obtain negative clearances in respect of them. In some circumstances such a clearance may be obtained through a certificate of the Commissioner that he is satisfied that the agreement or practice is not contrary to the public interest. In certain other cases it will be open to a party to obtain an order for an accelerated determination by the Tribunal of the question whether his agreement or practice is contrary to the public interest. A negative clearance will be effective for a minimum period of five years.
Provision is made in Part X for a person to bring proceedings to recover any damages that he has suffered by the action of another person who has disobeyed an order of the Tribunal or who has made a collusive tender or a collusive bid. There are limits to the Commonwealth’s constitutional power to enact legislation in this field but it is desirable that as far as possible there should be one legislative code governing trade practices throughout the Commonwealth. Accordingly, the Bill is drawn in such a way that it will be possible for State Parliaments to enact complementary legislation, in which event the administrative machinery provided under the Commonwealth legislation will be available for the purposes of the complementary State legislation. I commend the Bill to honorable senators.
– This is the most important economic measure to come before the Senate for many years because it deals with pernicious practices which affect our entire economy. It is important also because the history of the Bill shows that those who dominate the Australian economy also dominate the Government. The Senate and the people of Australia are faced with a multi-headed commercial conspiracy which is frustrating the economy and sapping the spirit of our people. The stand of the Opposition is clear. We want effective laws against trade practices. We have no confidence in this Bill; but better this Bill than nothing. That is why we do not oppose its passage.
We are entitled to clear laws against the deleterious actions of monopolies and trade conspiracies. This Bill does not give us these. It is a pretence, a smokescreen. It will set up an administrative morass. By requiring the innocent as well as the guilty to register, it will no doubt arouse opposition to any attempt to deal with commercial misconduct. The Government has done all that it reasonably can do to make the Bill ineffective.
The extent of monopolies and restrictive practices in Australia has been shown by the studies of economists such as Wheelwright and Hunter, by investigations, by commissions and committees of inquiry in the States, and by questions and answers in this Parliament, lt is now clear that there is a great deal of monopolisation and concentration of power in Australia and that we are monopolised to a much greater extent than are other industrialised countries. The estimate has been made - it has not been challenged - that the degree of monopolisation and concentration of power in Australia is twice as great as it is in the United Kingdom and three times as great as it is in the United States.
Along with this monopolisation has gone the great concentration of overseas ownership so that, with the exception of a few industries such as the paper, sugar and steel industries, much of our industrial economy is controlled, either entirely or predominantly, by those who live overseas. The concentration in industry is so great that these monopolies are able to fix terms and conditions for the supply of goods and services in practically every section of industry. This has been done by dominant corporations or by groups acting in combination. These have almost complete control of secondary industries, as well as a large share of primary industry. They control, for the most part, mineral resources. They control, directly or indirectly, the great media of communication - the radio, the television, the Press. They control the wealth and destinies of the whole country. They have subjugated the Government of this country. Is anything more tragic than to see the Leader of the Country Party speak out against these trends and yet be completely unable to do anything about them because he belongs to a coalition government which is utterly dominated by these outside forces?
Apart from outright ownership there are, in the field of distribution, trade associations of the order of 1,000. These control the operation of commerce and are responsible to no-one but themselves. They engage in boycotts and in blacklisting and they determine prices for goods and services which are, naturally, generally as much as the market can bear. Mergers and takeovers are part of the process of monopoly and concentration of power. They have become so common as to be familiar to the public. Many citizens who have trustingly invested their money on the stock exchange have been robbed of their investments by manipulation through mergers and takeovers. The private loss is often only a fraction of the detrimental effects to the community. Export franchises are restrictive devices under which Australian firms are prevented from exporting overseas, even where they would be able to compete effectively but for the franchises. Over 1,000 of such export franchises prevent Australian subsidiaries from competing with their overseas principals or other subsidiaries. As well, independent Australian firms are frozen out of export markets by the combinations of overseas firms which deny them the normal market outlets. Restrictive trade practices operate by way of agreements or more nebulous arrangements and touch every aspect of life - the clothes we wear, the papers we read, beer, cigarettes, food of all descriptions, building materials, Christmas presents.
These practices tend to force up the cost of living and breed inflation. They penetrate and injure our whole economy. The practices are called by high sounding names, such as full line forcing, resale price maintenance, horizontal and vertical practices, multilateral price fixing, multilateral market sharing, discriminatory discounts to selected retailers, collective inducements to refuse to deal. These fancy names do not disguise the fact that these practices are essentially not complicated but simple. They consist in activities such as buying out competitors or driving them out, obtaining control of the supply of goods or services in some area and then forcing up the prices to as high a level as possible by agreements which keep out other competitors, then denying the goods or services to those who will not meet their demands.
This may be done by the use of naked power where a single unit is involved or it may be done by agreement in a group. Where it is a group, the group often agrees to prevent the entry of other persons to the group either at all or only upon extremely restrictive conditions. The members of the group agree to apply pressure to drive out of business any competitor who threatents the group. Such a threat, of course, is a threat to compete with the members of the group by offering better services or better goods or offering them at lower prices than the public can get from the members of the group. In other words, these practices tend to injure the economy. They tend to force up prices. They tend to hurt all of us. They remind one of the methods used by gangsters, except that we have not yet in Australia - apart from a few instances such as the sanitary contracts - experienced outright violence as a method of enforcing the will of the monopolist or group.
In truth, many of the restrictive trade practices are commercial conspiracies, and legislation against them is aimed at commercial gangsters. My remarks are not directed at honest business methods or orderly marketing arrangements which can be demonstrated to be fair and reasonable to competitors and to the public. The Australian Labour Party has introduced and consistently supported orderly marketing arrangements. If has supported marketing schemes for primary products. It has been prepared to support any orderly marketing arrangements which are fair and reasonable, which are set up by statute and are subject to public supervision. Growth, in itself, can be and often is desirable but, like living cells, it can be pathological, choking the vitality of and eventually destroying the organism. In Australia the growth of monopoly and restrictive trade practices has gone so far as to become a disease. The activities which should be aimed at by a Bill of this nature are ones which are criminal in other countries but, with few exceptions, are lawful here. We allow companies to get away with actions which would involve them in fines and other penalties in the United States, the home of free enterprise. The rewards for the type of conspiracy to which I refer and the type of gangsterism that I have mentioned are so great that even when these practices are outlawed by the most stringent laws, as in the United States, there arc persons who are still prepared to carry them on.
The famous General Electric case in the United States, in which directors of the million dollar corporation were gaoled and fined huge sums, shows that not even the most drastic deterrents will prevent indulgence in those practices where the rewards are sufficiently great. I shall cite the remarks of Mr. Justice Schaeffer of the United States in connection with this case. He said -
Recently there has been the spectacular situation with tremendous conspiracy of the major electric companies - General Electric and Westinghouse. These men, not in most cases the presidents of the companies, but vice-presidents and sales managers, would meet incognito, and would use codes and communicate with one another but not on the stationery of the company, and they would alter their expense accounts to conceal the place where they had met, and they would telephone one another from public telephone booths to the home of the other, instead of to the office, and they had codes, and one of the codes dealt with the allocation of contracts, and was referred to under the code title of “ Phases of the Moon “. It would be the phase of this company or that company. There were 29 companies indicted and 45 executives of those companies. All of them pleaded guilty or made plea which had that effect. They were found guilty and they were fined total fines of almost two million dollars and 7 executives were sentenced to 30 days imprisonment.
In Australia, how are these practices carried out and how do they affect the people? Every time the local council purchases oil, petrol, paints, electrical equipment or a dozen other commodities, it is held to ransom. Every councillor has the experience of identical tenders for such commodities. Sometimes tenders are identical down to the last penny, although thousands of pounds are involved. Sometimes there are trifling variations. Sometimes all tenders are identical except for one - each tenderer in turn submits a slightly lower tender than the others. Councils have no real choice under this system. They are required to pay anything up to double the proper amount. When councils are held to ransom, this affects every ratepayer because he is paying, through his rates, outrageous prices forced by those who control the monopolies or groups of companies.
Similarly, State and Federal Governments are cheated in a dozen ways by these tactics. We know that companies in the United States of America have cheated their Government in defence contracts. We know that even despite the drastic American legislation providing for fines, for imprisonment and for treble damages, persons have still been prepared to break the law and cheat their own Government. What hope is there for us in Australia, when in many cases our Government is dealing with the very same firms? Does anybody think that some tender regard would be shown to the Federal and State Governments in Australia by these firms when there is no real sanction against them in this country; when those same firms have been prepared to break the most drastic laws in the United States of America in order to rob the public and cheat their own Government? Governments can be cheated in contracts and in other ways. We know that at auctions there are spurious bids; that the professional bidders go through the farce of bidding for government commodities and then repair to the nearest hotel to have a little auction among themselves and split up the profits they have made. This is a regular procedure, which has been going on for years.
In all these ways governments, national, State and local, are being cheated and through them the citizen is being cheated and our development is being hindered because of excessive charges for commodities. We could engage in much greater development if our governments were paying fair prices for the commodities supplied to them. We know that they are not being treated fairly by those who consider only their own profits. Unfortunately these are the great ones of the land, not the small ones. What hope has the average citizen of protecting himself against outrageous prices and from being got at in one hundred different ways, if governments, local and national, are unable to protect themselves? Young people are unable to purchase homes because they cannot afford housing and furniture at inflated and unreasonable prices. What hope is there when old people, some of them on small pensions, have to eke out- their lives in rooms, unable to live with dignity? Indeed, they are unable to die with dignity. These practices do not end with death. The relatives of the deceased are held to ransom by undertakers, even in the time of distress. Retired people and others wanting to save are forced either to invest in bonds and suffer inflation or invest in public companies and subject themselves to the danger of loss through manipulators who engage in mergers and in take-overs.
If the extraction of these money tributes, which in the aggregate are vast, was all, it would be bad enough, but the vice does not end there. If the small shopkeeper or businessman is driven to insolvency, not because he is lazy or because of failure to give personal service, not because of hard working competitors, but because of rackets and unfair methods of competition - for example, those which enable his giant competitors to get discounts while preventing the supplier from giving such discounts to the small shopkeeper or, perhaps from supplying him at all - such a man suffers in spirit as well as being ruined.
When the small manufacturer by hard work and efficiency wishes to expand his markets, internal or overseas, he finds that they are closed to him. If he resists he is destroyed by these combinations. When the author finds he cannot get a world sale for his book published in Australia he has to submit to the dictates of overseas publishers on royalties. The trade combinations which span the world in fields such as book publication treat the Australian market as that of a colony. They insist that this part of their empire be left to their dictates. This means that those who engage in this important field of publication are left to the mercies of those who dictate whatever terms they will. No real protection is afforded by our laws, although this evil has been apparent for many years.
What hope is there when the young mechanic finds that he has to work on vehicles in which there is inbuilt obsolescence - they are deliberately built to wear out quickly? What does this do to ambition and incentive? What does it do to the satisfaction which he otherwise may find in his job? When hard work and efficiency do not count and when the rewards go to those who can scheme to force prices up, to drive out competition by underhand methods, to cheat councils and to cheat their own governments, does anyone blame people, especially the young, for concluding that commerce and industry have become a giant racket and that there is no real place for people of integrity? How can we blame them for becoming disaffected or, in some instances, for entirely rejecting this society and its values,
Madam Acting Deputy President, in every age we have had commercial conspiracies and some monopolies. In ancient Rome, there were constant attempts to corner the market in corn, oil and other commodities. Periodically, strict laws were enacted to counteract this but however strict they were, they were still evaded. In the middle ages cornering the market and forcing up the price of some goods was illegal in common law. In the mercantile age, contracts in restraint of trade were held to be against public policy, unless it could be shown that they were in the public interest. Otherwise, they were declared to be unenforcible. As methods of transport quickened this problem of trade practices ceased to be a merely local one and became a national one.
The young and expanding United States of America found it necessary in the 90’s of last century to introduce drastic laws against restraint of interstate trade and commerce, because the evil had spread into interstate trade and commerce and the monopolies were spreading their tentacles over the whole of the growing United States. This was the genesis of the famous Sherman anti-trust laws, which were copied in other countries and amplified in the United States to deal with attempts at evasion. There were similar laws earlier than this in the dominion of Canada. The remedies in Canada and the United States were found to be reasonably effective. The United Kingdom has more recently adopted cumbersome and less effective methods than those of the United States. Other industrialised countries have found it essential to protect their governments and citizens by strict laws. Not being subject to so much monopoly control as is our Government, they outlaw or control restrictive practices.
Several years ago Sir Garfield Barwick publicised some of the results of governmental inquiries which showed that we had widespread restrictive practices which were harmful to the economy. Despite this evidence, the Government seems strongly disinclined to take any action. When the Barwick proposals were announced, no legislation was introduced but there was an outcry from those engaged in the restrictive practices. They were powerful enough to prevent the Government introducing legislation until earlier this year and then it was a watered down version of the Barwick proposals which have now been watered down still further.
During those years, the monopolists and conspirators have been able with impunity to carry out practices to the public detriment. The necessity for this legislation was evident many years ago. The Joint Committee on Constitutional Review in 1958 and again in 1959 recommended unanimously that a referendum should be held to clothe this Parliament with power to make laws against restrictive practices. The Governor-General’s Speech in March 1960 contained this statement -
The development of tendencies to monopoly and restrictive practices in commerce and industry has engaged the attention of the Government which will give consideration to legislation to protect and strengthen free enterprise against such a development.
Instead of taking steps to seek clear constitutional power, the former AttorneyGeneral announced federal laws based on insecure foundations, mainly of interstate trade and commerce and the corporation power. The Government announced that it would ask the States to pass complementary laws. Liberal Governments in the States were prepared, of course, to sabotage the proposals as was exemplified by the Victorian Bolte Government which has refused to co-operate. In his policy speech in November 1961, the Prime Minister said -
We desire, in co-operation with the State Governments, to do something to protect and strengthen free productive and business enterprise against monopoly or restrictive practices.
In February 1962 there was this comment in the Governor-General’s Speech -
Discussions between Commonwealth and State Attorneys-General in relation to monopoly and restrictive practices in business are continuing.
In December 1962 when the Barwick proposals were outlined to Parliament, it was stated on his behalf -
As a result of my discussions with the State Attorneys-General 1 have reason to believe that at last a clear majority of the State Attorneys^ General will recommend to their Governments the introduction of complementary Slate legislation to implement the scheme of legislation I describe.
On 9th November 1965 Victoria went it alone in introducing the Collusive Practices Bill. The State Attorney-General, Mr. Rylah, in introducing the Bill complained of the failure of the Commonwealth to carry out its expressed intention of seeking the co-operation of the States. Mr. Rylah said that Sir Garfield Barwick when Attorney-General in 1962 had proposed that when the federal Bill was drafted, it would be shown to the State AttorneysGeneral so that action could be co-ordinated but this had not been done and the States did not see it before it was introduced to the Commonwealth Parliament in May. Mr. Rylah said also that in July of this year, at a meeting of the Attorneys-General, a request was made that the States either pass complementary legislation or refer their powers to the Commonwealth.
What does this mean? The conclusion is that the framers and proponents of this Bill believed it had a shaky constitutional foundation and that it needed either more constitutional power in the Commonwealth or complementary legislation by the States.
What did the Government do? It treated the States, according to their own Victorian colleague, in a way which honorable senators may think was deliberately designed to destroy the chances of State co-operation. This gave the States no inducement and instead the Commonwealth broke the undertaking given to them. Thus, we have no hope of complementary State legislation by those States whose cooperation is essential, and no hope of reference of State power.
The clear course recommended by a unanimous body of federal Liberal and Country Party members as well as members of the Opposition on the Constitutional Review Committee was to seek Commonwealth power from the people. There was ample time in the last five years to seek this power. The Government knew it had the support of the Opposition. Its only fear was that success in the referendum would mean the end of excuses and the end of procrastination. The Government refused to go to the people to obtain clear power to make laws to .protect the people and for this it deserves our condemnation.
The legislation that has been introduced is a complicated measure which is not likely to be effective. The conspirators are resting easy. They know they need not desist from their plunder. This Bill is inadequate, full of loopholes and ineffective, lt will not work because it was not intended to work. It is full of vague generalities and meaningless phrases. It would seem that the framers of the Bill examined the experience of legislation elsewhere and then, with few exceptions, incorporated in this Bill the worst features of those laws and rejected the best features.
Apart from overseas shipping, the Bill destroys the future operation of the Australian Industries Preservation Act. That Act was beginning to prove effective in some cases. The Barwick proposals did not call for its repeal, but the friends of the Government were in danger of being hurt by it so it had to go. Its simplicity, its outlawing of restrictions on interstate trade and commerce and its outlawing of destruction of Australian industry by unfair competition will all disappear. The right conferred on the citizen to sue for treble damages for injury done to him by a breach of the law has proved a great deterrent in the United States of America; but it might hurt those engaged in commercial conspiracies here as it is hurting them in the United States. The Australian Industries Preservation Act with its definite offences and definite penalties is being repealed just when it ought not to be repealed. Why? In Hs place is this miserable Bill.
The only outright offences stated in the Bill are collusive tendering and collusive bidding. Certain restrictive agreements and four practices, whether good or bad, are required to be registered within 30 days on a register kept secret from the public. Then, the agreements - and we know there are thousands - will be examined individually by a Commissioner to determine whether they are against the public interest. The definition of public interest is so vague and subject to so many considerations that there is no rule and no law. The Bill throws the problem to the Commissioner and he is smothered in a tantalising gossamer. Even if the agreement is in the Commissioner’s opinion clearly against the public interest, it has to be taken to the Tribunal; but only by the Commissioner, not by anyone else, and only after the Commissioner has had consultations with the parties to the agreement.
The Tribunal then examines the whole position. If it finds against the agreement, it can make orders preventing its implementation. Only after this has been done it is illegal to carry on in defiance of such an order. Orders of the Tribunal will have the force of law but only in regard to each single agreement. It means that instead of this Parliament making a law and requiring everyone, great or small, to obey it, it is left to the Tribunal to make a law for each and every agreement brought before it. This is a hopeless way of coping with the host of restrictive agreements which are smothering the economy.
Experience in the United Kingdom shows that under such an administrative nightmare of a system, only a handful of cases can be dealt with in each year. As I understand it, in the United Kingdom the tribunal deals with between three and six cases in each year, each case taking about 30 full days of hearing. In order to make sure that the system will be unworkable, this Bill proposes that members of the Tribunal, except the President, can be part time. This is an elaborate farce. In the event of defiance of the orders, which defiance damages someone, the conspirators do not have to pay treble damages, but have only to repay to the damaged person the amount of injury caused to him. This means that a profit - perhaps a great profit - might well still be made.
Avenues of evasion are obvious. The simplest avenue is not to register. Such failure will involve a maximum penalty of only £1 ,000, even though the profits of the improper conspiracy may well be hundreds of thousands of pounds, or millions of pounds. Other obvious methods of evasion come to mind. The system will have no hope of controlling those persons who are determined to evade it, for instance, by entering into frequent new agreements. Anybody big enough to be able to employ accountants and experts will have no difficulty in outwitting this law. As always, a few small operators will be caught; the large operators will escape, except insofar as they offer a token sacrifice to gull the public into thinking that the legislation is a real protection against restrictive practices.
There are serious omissions from this Bill. A substantial part of the proposals of Sir Garfield Barwick has been abandoned. The first omission is a failure to secure complementary State laws. This legislation also fails to ban monopolisation and persistent price cutting at a loss designed to drive out a competitor. There is also failure to provide for the investigation of mergers and for examination of individual resale price maintenance. Under the former proposals, such persistent price cutting to drive out a competitor would have been inexcusably unlawful, but it is now only to be examined. This is a great change in philosophy. A few short years ago the practice was regarded here as so obviously wrong that no possible legal justification could be seen for it. But now, after the watering down process, apparently the view is taken that no longer is even persistent price cutting at a loss designed to drive out a competitor to be regarded as unlawful by itself. Honorable senators are aware of this practice and that such persistent undercutting will not benefit the public. It may benefit the public temporarily, for days or weeks until a competitor is driven out. But what is the purpose of driving out a competitor except to gain control of the market in order to force up prices to the maximum? This has gone on through all history.
We are aware of the great rewards that can be made by a person who gains control of a market. Obviously this is a pernicious practice. The change from the former proposals to those contained in this Bill ought never to have been made. How many small businesses will be destroyed while a process is being looked at through the administrative morass which is contained in this Bill? First, the practice must be put on the register. Then it must be examined. Then after consultations are held, it might be brought before the Tribunal. It may take some time for the Tribunal to get around to a hearing, because it will have a stack of other cases to consider. After a hearing, the Tribunal may make an order. Meanwhile, the competitor is driven out of business.
Monopolisation would have been inexcusably unlawful, but is now to be only examinable. Australia is suffering from a tremendous degree of concentration of power - of monopoly. As this country grows, inevitably we will suffer. We must be suffering now in the same way as the United States of America suffers, despite its stringent laws. Yet we are not prepared to do even the same as the United States has been doing for generations. What is good for the home of free enterprise is not to be good enough for us, even though we have clear evidence that persons are prepared to go to the greatest lengths to break even the most stringent laws by monopolistic trading practices.
Individual resale price maintenance is stripped completely from the Bill. This is maintenance of prices by a supplier, a device to exclude competition in proprietary lines. It tends to raise prices and is widely practised. It is one of the main ways in which the public is forced to pay higher prices than if there were a free market in those goods. It is a form of private price control, not subject to any public supervision. Resale price maintenance applies in Australia to a wide variety of goods, as was found by a Tasmanian royal commission this year. The list was found to include electric lights, beer, bread, tyres and tubes, automotive parts, books, sporting goods, hot water systems, paint, cement, steel pipes, hardboard, plywood, most hardware, cigarettes and tobacco, pharmaceutical goods, footwear, much clothing and drapery and many other goods comprising a significant segment of the wholesale and’ retail trades. The United Kingdom has legislation against resale price maintenance, but no such provision has been included in this Bill. Why? Because to deal with it would protect the public from those persons who finance the Australian Liberal Party.
The Barwick proposals in relation to mergers have also been stripped from this Bill. The former Attorney-General proposed that mergers should be investigated and delayed for a period if more than £250,000 was involved. Mergers are part of the process of monopolisation. Some are to the public detriment. Some may be beneficial. Why should they not be investigated? The answer is that to do so would not suit those persons who finance the Liberal Party. The little people might be protected from company sharks who devour their investments, leaving but an empty shell for the liquidators. A provision relating to mergers was in the Barwick proposals, but now it is to disappear without trace.
– I have not heard a word of sense from the honorable senator since he started.
– Senator Morris interjects. Let the honorable senator say why, although Sir Garfield Barwick thought that it was proper to provide for such an investigation, it has not been provided for in this Bill. The only explanation that has been given by the Attorney-General is that such an investigation would be difficult. It has not been too difficult for the United Kingdom to pass legislation about it. Many people in this community have been ruined by manipulations carried out through mergers and takeovers. Why should they not be looked at?
– They would be ruined if they followed the honorable senator’s philosophy.
– The honorable senator should oppose the Bill if he believes that.
– Why should these things not be looked at? Does not the history o.l: commercial immorality in recent years make even honorable senators on the Government side who are interjecting think that something should be done about it?
– The honorable senator is living in a world of fantasy.
– I have not said that every merger and takeover is detrimental. I have expressly said that some might be beneficial. But when they are large enough they ought to be looked at. Is the suggestion that, in the interests of the public, there should be some investigation of mergers and takeovers offensive to those who sit on the Government side? I have no doubt that it is offensive to some who support them.
The Government has also kept out of this Bill the Barwick proposal that the carrying on of a registrable practice without registration should be an offence. Without such a provision those who now injure the public interest can carry on and, if caught, will be liable to a penalty only for not registering. Exemptions that were introduced into the Bill by Government amendment in the House of Representatives perpetuate the modern serfdom of tied houses and petrol stations. A petrol seller or hotel licensee can be forced to purchase all his requirements from the owner and, by the use of the credit device incorporated in the Bill, can be forced to purchase other lines from other suppliers. This makes a mockery of provisions that are intended to outlaw or control practices in these fields. Apart from its effect on the retailer, such a practice excludes manufacturers of new, cheaper or more efficient products from these retail outlets. The Government’s latest amendment helps such interests as the great oil companies and the breweries - the very interests which finance the Liberal Party at election time.
– Prove it.
– Does the honorable senator who said “ Prove it “ deny-
– Does he deny that the oil companies of Australia finance and support the Liberal Party at election time?
– To what extent?
– Now he retreats and asks: “To what extent?” Is not this a blatant misuse of legislative power in order to pay for past and future favours? Why is this special exemption being made in regard to this group? The petrol sellers have been ground down under mortgages; they are tied up in 100 different ways. They are the serfs of modern times. Why should there be this special exemption which will leave them and those who would seek retail outlets through the petrol stations without protection?
– They are working 18 hours a day.
– I thank Senator O’Byrne for the interjection. One of the effects of these vicious practices, of this pressure of monopolisation by which the individual becomes submerged, is that people who operate petrol stations are forced to work extraordinarily long hours to make even a reasonable living and to give them even a hope of getting free of the ties by which they are held down.
I ask honorable senators to compare this Bill with the strict laws that have been passed against the restrictive practices of workers who have only their services to sell, whether they be of the body or the brain. Since 1904 we have had industrial laws which now are so strict that we work under a system of industrial conscription. The trade associations which the workers set up to protect themselves - the trade unions - have been used by the law as vehicles by which industrial conscription has been enforced by orders of the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court. The workers are crushed between the anvil of restrictive practices which force up the cost of living and the hammer of the industrial wage system. The result has been so pronounced that many of them have pledged themselves in hire purchase agreements for years in order to pay for the necessaries of life. It is the duty of the Government to protect the people. It has failed to do so. It has exposed them to the commercial vultures. It has been claimed that this legislation will give certainty. The only certainty is that the public has been robbed and that it will continue to be robbed, despite this legislation. It is with excessive charity that, on behalf of the Opposition, I move this amendment -
That the following words be added to the motion: - “ and the Senate notes with approval that, in response to public pressure, the Government has introduced this limited Bill but deplores -
the Government’s failure to hold a referendum, as unanimously recommended by the Joint Committee on Constitutional Review in its reports presented to the Senate on 1st October, 1958, and 26th November, 1959, to give the Parliament power to make comprehensive national laws with respect to restrictive trade practices; and
its abandonment of a substantial part of the proposals of the former AttorneyGeneral for legislation on restrictive trade practices and monopolies, as outlined to the House of Representatives on the 6th December, 1962, particularly with respect to resale price maintenance, persistent price cutting, monopolization and mergers “.
– With excessive charity may I say that we have just been treated to a hate session of the first order against all sections of business. That hate session was characterised by sweeping assertions and exaggerations which Senator Murphy made no attempt to substantiate. I believe that the honorable senator destroyed his own case by overstating it. He said - of course, without hate - that those who dominate business dominate the Government. I have heard that sort of statement come from the opposite side of the Senate for years, but I have never heard the slightest proof advanced. That is a mere statement which has not been substantiated. It cannot be substantiated. In an attack upon overseas ownership of Australian undertakings, Senator Murphy said that the whole of the industrial economy was under overseas control. Surely that statement is palpably wrong. That part of our industrial economy which is under overseas control is very small indeed. Senator Murphy used such words as “ rackets “, “ gangsters “ and “ plunderers “. I suggest with great respect that it was very unworthy of the honorable senator to accuse great sections of industry of being racketeers, plunderers and gangsters. That is a statement that I had never expected to hear any responsible person make in this chamber.
– Is the honorable senator making an apology for “ Sausage “ Johnson?
– I am not making an apology for anybody. I do not have to. It would be difficult to recall any legislation of recent times that has been the subject of such public discussion and controversy as has the legislation which we are now debating and to which I give my fullest support. It is now approximatelyfive years since Sir Garfield Barwick first produced draft legislation to control restrictive trade practices which operate against the public interest.
It is true that the legislation now beforeus has been changed quite drastically from the first draft which was prepared by Sir Garfield Barwick. As I recall the position, the whole purpose behind Sir Garfield’s proposals was to enable discussion by interested parties and by the Australian public so as to ensure that the legislation finally produced would, as far as practicable, meet the particular requirements of Australia. I note that the Australian Labour Party has, with obvious reservations, accepted the Bill. But members of the Australian Labour Party argue that it does not go far enough. Some members of the Liberal Party believe that it is either unnecessary or goes much too far.
– Not Sir Garfield Barwick.
– He will speak for himself. From these reactions I believe it is possible that the Government has struck a happy medium. Some critics of the legislation - and they come mainly from the Opposition - have compared, as Senator Murphy did, the provisions contained in this Bill with legislation in the United Kingdom and in the United States of America. I suggest that one cannot make a fair comparison between legislation in one country and legislation in another country unless one also makes an analysis of the variations in the economic conditions in the countries concerned. Both the United States and the United Kingdom are well developed industrial nations. Although we, in Australia, have advanced to a certain level of industrial growth, we have not, by any standards, reached the maturity of development or attained the concentration of commerce and financial power that has been achieved in the more industrially developed countries.
It is my belief that we do not want to be frightened of size in business, as apparently Senator Murphy is. Size in itself is not evil. On the contrary, size can mean economies and efficiency. That point of view should be encouraged. This legislation does not attack that principle. But care must be taken to ensure that we do not interfere needlessly with business. There are in operation, however, and I do not deny this, many practices which without question restrict trade to a degree that must operate against the public interest. It is these practices that we seek to eliminate. They often bear heavily on the small businessman and they have serious effects on the primary producing sector of the community.
I am not impressed with the argument that because the United States and the United Kingdom have certain provisions in their legislation, we should have them in our legislation. Legislation in this country must be tailored to meet our own requirements and problems. I note that the Deputy Leader of the Opposition in another place (Mr. Whitlam), in a rather pedantic speech, made certain suggestions - and Senator Murphy repeated at least one of them in the course of his speech - which I regard as being somewhat odd. The Deputy Leader of the Opposition seemed too intent on scoring rather doubtful debating points that made little contribution to constructive discussion. I shall comment on one or two of those points, particularly the one to which Senator Murphy referred.
Both the Deputy Leader of the Opposition and Senator Murphy appeared to suggest that the Australian Industries Preservation Act should operate alongside this legislation. Indeed, quite unfairly, both the Deputy Leader of the Opposition and Senator Murphy contended that it was only when the Government found that this legislation had teeth - certainly more teeth than previously they thought it had - that any interest was shown in introducing it and that the Government became determined that the Australian Industries Preservation Act should be repealed. I should have thought it would be obvious that to have the Australian Industries Preservation Act operating alongside this measure would have the effect of creating only confusion and uncertainty.
To my mind, it is desirable to have a large degree of certainty in legislation controlling restrictive trade practices so that anybody may know or soon learn where he stands. I would have been disappointed if somewhere along the line the Opposition had not referred to Mr. Ansett. Members of the Opposition seem to have a paranoiac obsession so far as Mr. Ansett is concerned. The Deputy Leader of the Opposition in another place chided the Government on the score that, while apparently it wishes to maintain competition in some fields, it has destroyed competition in the aviation field. Recently Trans-Australia Airlines rather unkindly inserted a large advertisement in the daily Press of Australia. It announced what a successful business enterprise it was and that it had just made a record profit. The airline proudly referred to its success in “ this vigorous competitive climate”.
Of course, the Opposition proposes that competition can best be preserved by the Government entering into the field of business in competition with private enterprise. There is a fundamental difference of opinion on this matter between members on this side of the chamber and the members of the Opposition. We believe that the free enterprise system is capable of maintaining and should maintain a high level of healthy competition. But unfortunately in some sections the temptation to take the easy way out becomes rather overwhelming. That is why legislation of the type we have before us becomes necessary. I am curious about the Opposition’s new found interest in the virtues of competition. Its policy is one of government ownership and control in large areas of business activity. Its objective is to replace private ownership with government monopoly in fields such as banking and airlines. I am also reminded that on this question of competition in which the Opposition has found some new virtue, it was Mr. Ansett who in the late 1940’s refused to accept a direction from the then Labour Government to raise air fares to the level desired by T.A.A. Of course, members of the Opposition have short memories in these matters.
This Bill is a highly complex legal document. It is not possible for a layman, such as myself, to discuss with any degree of certainty the many legal problems in it. My one interest and concern is to see that the legislation will, to a larger extent, control those practices that are undesirable in the public interest. I agree that it is difficult to define with any precision the term “public interest “. Despite what Senator Murphy has said, I note that in clause 50 the Attorney-General (Mr. Snedden) has defined what can be regarded, with reference to the Bill, as being in the public interest. It is true that not all agreements and restrictive practices are opposed to the public interest. If they do not operate against the public interest, quite rightly they have nothing to fear from this legislation.
Sir Garfield Barwick, as mentioned in the Minister’s second reading speech, published a list of known practices and agreements that could be harmful - despite the fact that Senator Murphy said, I think, that they were not harmful - and against the public interest. Sir Garfield Barwick said that they could operate in a harmful manner, not that they were operating in a harmful manner. This list was prepared from Tariff Board reports, from reports by the Western Australian royal commission and from evidence put forward from other official and reliable sources. As mentioned in the second reading speech, this Bill outlaws two practices, collusive tendering and collusive bid ding. It makes five types of agreements and four types of practice examinable. These are contained in clauses 35 to 39 of the Bill and I will not go through them. The Bill provides that examinable agreements must be . registered except for certain categories. Examinable practices need not be registered but if it is found that they are escaping scrutiny then the Bill can and should be amended. But if the attention of the Commissioner is drawn to them by persons affected then this should not be necessary.
Senator Murphy levelled some strong criticism at the Government for watering down the final proposals made by Sir Garfield Barwick, particularly with regard to examinable practices. For my part I feel there are good reasons for not placing unduly onerous burdens on industry unless they are proved necessary. There is considerable merit when entering a field such as this for the first time to enter it with a little caution. We must be ready to take action should it be found necessary. I might also say that I have little sympathy for the pleas from some sections of industry that already too onerous a burden is being placed on them in that they have to examine all agreements they have made to see whether or not they are registrable. My only reply is that if they had not made these agreements in the first place they would not have had to examine them now. I say quite bluntly that I do not accept the view put by some organisations which have made representations to me that they are lily white. Nor do I sweepingly condemn industry as a whole. I believe that there are only small sections of industry that engage in these harmful practices now. Modern social thinking will not allow unfair practices, even though long regarded as normal, to continue. It is in the interests of industry itself to eliminate these practices. I note that a few weeks ago this view was supported by Mr. R. A. Irish when addressing the Australian Association of Advertising Agencies. In a newspaper report he was reported as follows -
He went on to say -
One thing which would flow from the trade practices law was that businessmen would all know at heart what was socially questionable and if in doubt would steer away from it.
They would also realise that they survived in the face of competitive forces and could not build a fort to keep them out.
I subscribe fully to the views expressed by Mr. Irish. This statement recognises that considerations other than those which businessmen regard as normal are involved. Today governments have an obligation to protect the community.
One sector of the community which I believe stands to gain from this legislation is the primary producing sector. Economists have divided the economies of the world, broadly, into four categories; industrialised, semi-industrialised with some primary industry, some industrialisation with very strong primary industry, and all primary industry. It has been long recognised that the highest standards of living are enjoyed by those countries which are basically industrialised and that to the degree that industrialisation proceeds down the scale and primary industry moves up the scale so the standards of living go down.
Australia is uniquely placed in this situation in that whilst basically it remains heavily dependent on its primary industries - in fact it is still often referred to as a primary producing country - nevertheless its standard of living has been amongst the first three in the world. Whilst a great deal of this is due to increasing industrialisation, Australian primary industry, as a highly efficient low cost producer, has, despite world price vicissitudes, earned the funds that have enabled us to develop and lift living standards. It is true that in all countries of the world where there is a primary industry, large or small, specific steps have been taken to support rural production programmes and to buttress the income of farmers. No one country in the world has avoided this but we in Australia have, to a large extent, avoided the excesses of this system. Our primary industries, except in minor cases, require no tariff protection. Of the three major export items, wool, meat and wheat, only wheat has a stabilisation scheme. Because the bulk of our production is sent abroad, and because of the protection I have just referred to, the prosperity of farmers in Australia is determined by the export prices they receive for their products. Although the Australian home market is growing it does not consume enough to be a price determining factor.
Successive governments over the years have recognised that the viability of Australian primary production depends upon low cost, high grade production and have endeavoured to minimise the effect of cost increases. The cost price squeeze today is the greatest deterrent to the profitability of the Australian farmer, and failing our ability to move prices upwards we have had to resort to minimising costs. Governments, to some extent, have adopted the principle - insofar as it has been possible - of subsidising input rather than output. The subsidy on superphosphate and other bounties are examples of this.
This legislation is aimed specifically at preventing practices which maintain high prices to consumers and producers. These trade practices, by their very nature, eliminate competition and so prevent the passing on to purchasers of the benefits of mass production and improvements resulting from changes in scientific techniques. It must be recognised that the Australian primary producer already has to pay for the cost of import duties on machinery and agricultural equipment which he purchases in order to enable Australian industries manufacturing this equipment to be protected. The primary producer has not complained about this although, as a producer relying on free market prices, it represents a large amount of his overhead. I make no sweeping assertions as did Senator Murphy, but when the people who already enjoy the protection of a high tariff wall combine amongst themselves further to restrict competition and increase the costs to primary producers, then it is time for legislation of this nature to be implemented as rapidly as possible.
There are those people who say, rather foolishly I believe, that the Australian primary producer is more than adequately protected by the Government and the Australian taxpayer. But this is only true of a very small percentage of the primary producer’s output. Australian secondary industry, on the other hand, has a very lucrative home market. Only now is it very tentatively exploring the export field. To allow to exist a position in which, on top of the tariff protection that we in the Parliament give by legislation, secondary industry gives itself protection by eliminating competition would be to allow to persist a corruption that is against our welfare. I wish to make quite clear one point that has been somewhat obscured already in this debate. This legislation will not and should not affect the great bulk of Australian industry, which in my opinion is doing a magnificent job. lt is aimed only at the excesses of the greedy.
I wish to make only one other comment on this Bill. As Senator Murphy said, it makes provision for complementary State legislation, which is required because of constitutional limitations. Let me say here and now that 1 deplore and condemn the lack of interest, if not the open hostility, of at least some of. the State Governments in respect of this legislation. Those State Governments are taking a narrow, selfish outlook when a national outlook is required. 1 wonder whether they believe that capital can bc attracted only if business is free to monopolise, to rig prices and to crush competition. 1 make no charges, but I believe that that is their attitude. If that is so, it is an outrageous attitude. I can only express the hope that better sense will prevail.
– They are Liberal Governments.
– I am not saying which government is involved. I am merely referring to State Governments, whether Liberal or Labour, which are not prepared to introduce complementary legislation. I make my position quite clear. I do not suggest that this legislation is perfect or that it should be regarded as the last word. In the light of experience, it can be clarified, modified or strengthened. But it is a sincere and honest attempt to deal with a difficult and complex problem.
.- Senator Sim seems to have some difficulty in understanding why Senator Murphy or anybody else should suggest that some business and commercial interests have a very strong influence on this Government. Whether we call it dominating the Government, as Senator Murphy did very frankly, or whether we choose more polite language in which to wrap that arresting thought, the fact is that Senator Simm, who followed
Senator Murphy in this debate, apparently was rattled by the impact of a very forceful attack on these unconscionable restrictive trade practices operating over a wide field in Australian industry.
Senator Sim was so anxious to deny that any such powerful influences were operating on the Government that he quickly got around to defending Mr. Reg Ansett who, as far as I know, Senator Murphy had not mentioned.
– I did not say that Senator Murphy had mentioned him.
– I know that the honorable senator did not do that; but he was obviously shaken by what Senator Murphy said and so he had barely spoken two sentences before he entered upon a defence of Mr. Reg Ansett. Why he needed to raise that name or that issue in dealing with the question of domination of the Government or influence on the Government, I do not know. But if he needs the reassurance that such strong influence is not operating on this Government, I am not quite sure where he will get it if his own researches have not satisfied him.
This Bill is nobody’s Bill. From the history of this matter it is difficult to tell who is putting forward this Bill. It is not the original scheme contemplated by the former Attorney-General, Sir Garfield Barwick - not by a long shot. Nor does it contain the original proposals in the Bill that was introduced by the present Attorney-General (Mr. Snedden) last May, because only a day or two before the second reading debate was resumed in another place the week before last, he introduced 45 amendments to the Bill that he had presented in May.
The effect of those amendments was to further dilute a Bill which was already a substantial watering down of the original Barwick proposals. There can be not the slightest doubt that that statement is correct. I know that Senator Sim, and perhaps other honorable senators, will want to defend the change.
– We do not apologise.
– The honorable senator is not apologising for the change.. But not a single Cabinet Minister spoke in support of this Bill in the course of the seven day debate on it in the House of
Representatives; not a single Minister of Cabinent standing came forward to say: “ The Government is behind the AttorneyGeneral in these proposals.”
– They could not get a word in edgeways.
– 1 think there were plenty of opportunities in the seven day debate. I understand that the honorable member for Moreton (Mr. Killen) had no difficulty in moving some 38 amendments, in addition to those moved by the AttorneyGeneral and the Opposition. The Minister for Works cannot tell me that, if any responsible senior Cabinet Minister had wanted to get the floor either in the second reading debate or in the Committee stage, he could not have obtained the call and thrown the weight of the Government behind the Attorney-General.
The fact is that the Attorney-General has had to do the best he can, having regard to the tremendous pressures - I use that word advisedly - that have been exerted on the Government ever since Sir Garfield Barwick put forward his proposals on 6th December 1962. Since that day the Government has been in retreat. The present Bill represents an abdication from the reasonably firm position that was taken by Sir Garfield Barwick. As expressed in the Opposition amendment that is now before the Senate, there has been an abandonment of substantial parts of the original Barwick proposals. Honorable senators opposite may deny it if they want to; but let us have no humbug about whether or not this Bill is a retreat. It is a substantial retreat from and a substantial watering down of the original proposals.
I believe that the position was expressed very well in an editorial in the “ Sydney Morning Herald” of 26th November, which said this of the Bill -
What finally emerges-
This was written after the Attorney-General announced his 45 further amendments - is a reluctant looking piece of legislation, squeezed out of the long tube after pressures on all sides.
That is picturesque, but it is absolutely true. That is just what happened. The AttorneyGeneral, no doubt out of a desire, to present a bill and have it passed at the lowest common denominator of acceptance, has pressed for legislation and has been able to get this measure passed by the House of Representatives, with all its inadequacies and with its fundamental weaknesses. The same editorial also drew attention to something which it described in this way -
More disappointing than the actual contents of the revised bill is the evident lack of enthusiasm and purpose behind it.
Who can deny that that is the reality of the present political position, so far as this Government is concerned? This extraordinary situation has been allowed to develop: The Attorney-General has conducted through the Lower House a most complicated piece of legislation, with a debate extending over seven sitting days, and not one senior Minister has come in to throw the weight of the Government behind him. Are we to assume from this that when the Bill passes through this chamber there will be some soft pedalling in the application of its provisions?
Much depends, of course, on the working of the machinery which is actually set up as a result of the passage of the legislation. Everything will hinge upon that all powerful man, the Commissioner of Trade Practices, who is to be appointed under the Bill. We will all be watching very carefully and with great interest to see the calibre of the man the Government has in mind. There have been those, including experts, who have suggested that it will be very difficult for the Government to find a single individual who will possess all the talents and abilities necessary to carry out the task entrusted to the Commissioner of Trade Practices under the Bill.
– Will the honorable senator blame the Government if the perfect man is not found?
– No. I would be satisfied with something substantially less than perfection and I am sure the Government will have to be satisfied with that. We must realise that a tremendous discretion rests within the Commissioner because he is the man who will say what is the public interest.
– The honorable senator should not talk to rae about discretion after his performance last night.
– We are not discussing anything that happened last night. I will be interested to hear what the honorable senator has to say about this Bill. I ask him not to try to sidetrack me by talking about a Bill which the Government sponsored and which passed through this chamber last night. As I have said, the Commissioner of Trade Practices will have the job of deciding what is the public interest. Senator Sim has said: “ One thing that this Bill will give the businessman is certainty “. I have never heard a more ridiculous statement. One thing that this Bill will not give any businessman is certainty because the businessman will be at the mercy of the Commissioner of Trade Practices who will decide, after taking into account the required dozen or more factors, what is the public interest.
– I see the Minister is shaking his head. Did he say “ No “?
– I did. The businessman has the certainty of knowing that nothing he is doing is unlawful until after a finding has been made by the Commissioner that it is contrary to the public interest.
– That is right. Then the matter is referred to the Tribunal so that an adjudication can be made upon whether the particular practice or restriction involved in a particular agreement is contrary to the public interest. But he will not know perhaps for a long time whether what he is engaging in is contrary to the public interest. I have another complaint about this which arises from the basic attack we of the Opposition make on this Bill. I believe that it really will allow the guilty man to get away with murder.
– How does the honorable senator come to that conclusion?
– Because failure to give particulars is an offence but carrying on a practice or operating under an agreement without registration is not an offence. In this respect the Bill is a wholesale retreat from the Barwick proposals. The Minister for Shipping and Transport, Mr. Freeth, when introducing the Barwick proposals on 6th December 1962, had this to say -
The next step is to make it an offence to carry on a practice within list A unless a document covering that practice is, and remains, registered. In addition, failure to register such a document would be an offence.
The easiest way for the big fish to evade this legislation is for them to decline to register, for which they will be fined a maximum of £1,000 and that will be the end of it. We want the failure to furnish particulars made a continuing offence so that for each day and each week on which the practice is carried on without being registered there will be a continuing and additional fine. Why has the Government dropped this proposal from the Barwick scheme? Why are the big fish now to be permitted to escape? I refer to the big fish because they will not be hurt by a single fine of £1,000. They can make a lot more than that in the year or two while the Commissioner is catching up with them. They will not be worried by a fine of £1,000 or even more. This is a serious defect in the Bill.
We are told that the Government will rely on sweet reasonableness and consultation and that, in any event, the Commissioner will catch up with these people eventually because he has power to deal with practices and agreements that are not registered. Of course he has, but there will be so many agreements that will require to be registered in the first year or two in the operation of this scheme that the Commissioner’s staff will have plenty to do examining the registered agreements without having to chase those who, whether by accident or design, have not registered an agreement.
I do not want to be led away from some of the other things I have to say about this important legislation. First, if ever proof were needed that pressures have been applied on the Government and that the Government has succumbed to them, it is to be found in some of the 45 amendments which were introduced at the eleventh hour by the Attorney-General to make this Bill more acceptable to those sections of the business community which fear even the mildest infringement of their right to engage in predatory practices. Let me refer to the example given by Senator Murphy relating to oil companies and petrol service stations. Only a week before the debate on this Bill commenced Professor J. E. Richardson, Dean of the Faculty of Law at the Australian National University - I am sure no-one would suggest that Professor Richardson, in view of his experience especially in this field, was not an expert and that his views were not entitled to the keenest consideration and respect - had this to say in one of four articles published in the “Canberra Times” of 10th November 1 965-
The second practice covered by the Bill is that in which a supplier requires as a condition of supply that the customer buy other goods or services from someone else. Thus it covers the practice of an oil company supplying petrol to a reseller only on condition that the reseller buys lines of tyres, batteries and spare parts from associated suppliers.
One can only assume that the oil companies, after having received advice or after having read Professor Richardson’s article, took fright and came to see the Government. As a result, we now have clause 39 (4.) in the Bill which specifically exempts cases where a term or condition is imposed in connection with the grant of a lease or a licence in respect of the land, being a term or condition by which the grantee - in this case the person who runs the petrol service station - or a person deriving rights in respect of the land through the grantee, is required to acquire from the owner all or any of the goods or services required in connection with the conduct of a business on the land.
The same thing applies to a term or condition imposed in connection with the lending of money or the granting of credit to a person for the purposes of carrying on a business. They are specifically exempted. That, to my mind, is the greatest example of intervention by these predatory business interests in an attempt to secure either the abandonment or the amendment of the legislation. There can be no two ways about this. It is an extraordinary concession to make at the very last hour, when the provision was in the Bill and when it was clearly interpreted by those who were able to read the Bill as covering those oil companies. I am not impressed in any way by the arguments that were put up by Senator Sim and that were advanced in another place, suggesting in effect that the business community had to be approached with kid gloves.
Senator Murphy made it absolutely clear that this was not a general attack upon people carrying on business in the ordinary way and entering into legitimate business arrangements within the general purview of the community’s understanding of commercial morality. It is not a wholesale attack that we make. But the authority for the damning indictment that Senator Murphy launched against some of these gangsters - as he put it - some of these extortionists, some of these people who engage in unconscionable rackets, is not some outlandish stretch of imagination, but is Sir Garfield Barwick’s own statement, publishing a list of restrictive trade practices and monopolies. I invite any honorable senator on the Government side who feels that he can answer this to show that Senator Murphy has in some way misunderstood what Sir Garfield was talking about. I venture to think that he will find it pretty difficult, because here is set out in black and white a list of the practices which have come directly under the notice of the Attorney-General - this is early in 1963 - and of matters that have been referred to the Attorney-General by the Tariff Board. The Minister representing the AttorneyGeneral, in making his second reading speech tonight, drew specific attention to that statement. So let us not have any suggestion that in some way or other the case documenting the existence and the prevalence of restrictive trade practices has been in some way exaggerated. The authority for that is the Government’s own source. We start from that proposition.
They are widespread and there is a very significant degree of indulgence in these practices in the field of Australian industry, and something has to be done to remedy that situation. We have had here in Australia 50 years of virtual freedom from interference with these predatory restrictive practices. We have had an act that was passed in 1906 and which, since 1909 or thereabouts, has until recently been regarded as a dead letter. I refer to the Australian Industries Preservation Act, which in substance is being repealed by this Bill, and which has recently had a new lease of life as a result of a number of decisions of the High Court, holding valid sections 4 and 1 1 of that Act. Section 4 enables proceedings to be taken against -
Any person who, either as principal or agent, makes or enters into any contract, or . . . engages in any combination, in relation to trade or commerce with other countries or among the States-
in restraint of or with intent to restrain trade or commerce; or
to the destruction or injury of or with the intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers and consumers . . .
Such a person is guilty of an offence. What is wrong with that statute, if it is valid and constitutional? A person found guilty of that offence - this is an Act that was passed in 1906 - is liable to a penalty of £500 or, in the case of a continuing offence, £500 for each day during which the offence continues. Section 1 1 of that Act gives a person who is injured the right to sue for treble damages for the injury.
– Does the honorable senator say that we had 50 years of immunity from these practices by reason of that Act?
– I did not say that. What 1 said was that people indulging in these practices had had 50 years of immunity because it was assumed that this Act was a dead letter, until 1963 and 1964 when the High Court indicated that these sections were valid and constitutional. The result was that this again struck terror into the hearts of those who feared the interference of (he State in their monopolies and restrictive trade practices. So the idea of proceeding with this legislation got a new surge of life after the High Courts decision. The position now is that it is no longer time to say that the Act is a dead letter but in fact it can be a very effective instrument for dealing with restrictive practices. It is based upon the American experience in the Sherman Act, simply making unlawful monopolisation and restrictive trade practices.
– Did the honorable senator say that that decision preceded Sir Garfield Barwick’s Bill?
– No, I did not. There is no point in snorting about it. I am not misstating the position. The chronology is clear enough. Sir Garfield Barwick introduced his scheme on 5th December 1962. The High Court gave its decision in the case of Redfern versus The Dunlop Rubber Company in February 1964. It was late in 1964 and early in 1965 that we got a new surge of interest and activity in bringing some legislation forward.
The Government preference, apparently, is to follow the British pattern of dealing with the subject matter case by case. It is the view of the Opposition that something could have been done to strengthen the Australian Industries Preservation Act and put teeth in it and that this would, perhaps, in the long run be more effective than the legislation that is now before the Senate. That is no longer possible, since the Government has taken the decision to introduce this legislation and to approach the problem on a different basis. In July of this year, Professor Richardson, whom I cited a few moments ago, said -
If you wanted a really tough law to control restrictive trade practices, 1 do not think you would do much better than to bring out an up to date Australian Industries Preservation Act.
He said that it was fortunate for Australian businessmen indulging in these practices that this Act was to be repealed in favour of what he called the Snedden plan. He said also that there were certain offences under the old Act which had no parallel in the new Bill, including unfair trading concessions and improper refusals to sell goods.
So we face the position that the Government is departing from the whole pattern of thinking in the Sherman Act and the Clayton Act - the United States examples - and moving over to the pattern of the British Act. But it is leaving out the things that British experience has shown in recent years ought to have been included originally. It is leaving out individual resale price maintenance. It is leaving out monopolies and mergers; it is leaving out full line forcing; it is leaving out a number of things which would give teeth and life to this Bill and which would make it operate realistically. One can only assume either that the Government wants to start so modestly that the Act, when in force, will make no real impact on these unconscionable practices, or that it has no real interest in pushing these matters to their logical conclusion.
One matter in particular that I want to mention, as my time has almost expired, is that this Bill departs from the Barwick proposals to some extent and departs from the practice under the British legislation to a very considerable extent, in that it provides for a secret register. The British provision is that the register is an open register which can be inspected publicly, not only by a person with an interest, but by any person. Sir Garfield Barwick proposed that inspection be limited to a person with an interest.
The British register protects secret agreements containing secret formulae - industrial formulae and matters which are the subject of industrial property, 1 suppose- and any matters which the registrar thinks it would be injurious to the public interest to disclose. But the point is that it is an open register and that has helped to make the British legislation work because it acts as a deterrent to those engaging in harmful restrictive practices.
Here in Australia the Government seems to think that the important thing is that there should be absolute secrecy of communication between persons registering agreements and the Commissioner and his staff. In our view that is an entirely wrong approach to the matter. What has helped to bring many people to heel in the United Kingdom is the fact that the register is a public register and that public attention can be drawn to particular cases, and there the deterrent effect of the legislation becomes obvious.
I conclude by saying that the Opposition is prepared to support the passage of this legislation, not because we have any fundamental confidence that it will do the trick but because there ought to be a universal acceptance in this country of the need for such legislation and this is the method that the Government has chosen in order to deal with trade practices. On that basis, whilst insisting upon the amendment that Senator Murphy has moved because it breathes reality into this debate, we nevertheless do not oppose the legislation.
.- I support the Bill and, before developing the argument that induces me to do so, I want to pay a tribute to a former colleague, Senator Hannah, who I believe had the honour of initiating in the forums of my Party the viewpoint that legislation of this sort was overdue. I want also to express my indebtedness to those Liberal members in the House of Representatives who, I believe, have revived the true spirit of Parliament by subjecting this BUI to scrutiny lasting - I take the figure from Senator Murphy - some seven days. I think that was a healthy procedure and one for which we should all be indebted to those honorable members.
The Bill approaches a mammoth problem in modern trade and commerce and it would ill become the Senate to be guided by the vituperation which fell from Senator Murphy. The honorable senator referred to the people engaged in trade and commerce in this country as conspirators, people who plunder the community, vultures and robbers. Adjectives of this sort, a senseless concatenation of epithets, do not do the debating standards of this place any good and do not add to the force of any argument which may be available to the Opposition in this matter. I suggest that we get down to the fundamental problem here, and that is the preservation of freedom.
– Yes, freedom to exploit.
– There we have that inanity again, coming from Senator O’Byrne. I say that the fundamental problem is to preserve freedom and in human affairs today one can do that only by regulation, and that goes for contracts, or property, or trade or commerce. And whilst we allow a free right of alienation of property and a free right of enjoyment of property, those very concepts demand some restraint on the ultimate freedom. Otherwise we will permit the subject matter of property to be tied up in perpetuity. Contracts unregulated by laws limiting their extent can impose such a degree of serfdom in relation to personal service that freedom will disappear. This is an attitude that was well taken by the original proponent of these proposals, Sir Garfield Barwick, and emulated in equally attractive fashion by his successor, Mr. Snedden. It is from Mr. Snedden’s second reading speech that I wish to quote. He said -
Sir Garfield said that a free enterprise society was desirable, in that it provides for its citizens to be at liberty to participate in the production and distribution of the nation’s wealth, thus ensuring competitive conditions which tend to initiative, resourcefulness, productive efficiency, high output and fair and reasonable prices to the consumer. Further, he said that the Government believed that practices which reduce competition may endanger, those benefits which we properly expect and mostly enjoy from a free enterprise society. However, the Government is conscious that the lessening of competition may in some aspects of the economy, be unavoidable; indeed, it may be not only consistent with, but a proper ingredient of, a truly free enterprise system.
Reference was made in that speech to the fact that a need for some reduction of competition is more likely to exist in a state of growth such as we are experiencing, particularly when we are gearing ourselves more and more for the export of secondary goods. In short it was stated that the Government did not subscribe to the view that there are no circumstances in which the public interest justifies a reduction in competition but that, on the contrary, it believed that there might welt be some practices, restrictive in their nature, which are in the public interest. Now it is no use, in a field like this, if you state that as your preliminary concept, dwelling upon lack of precision in definition. It is the fundamental conception that defies precise definition which has created this ever continuing problem. Senator Murphy went back to ancient Rome. I remind him that this was a problem in feudal times. The very idea he seeks to apply to capital was vigorously applied to labour during the last century and bedevilled the freedom of the working man during that period. It was not until the working man was relieved from that conception, expressed in hateful and odious terms such as Senator Murphy has used tonight, that the people escaped from the restrictions based on class hatred. They did not become the victims of industrial conscription in this country as one Labour spokesman ventured to suggest tonight but came under the protection of the arbitration system to take a place in the prosperity of our economy. So the Australian working man enjoys a standard of living comparable with any other in the world.
Having stated my position with regard to freedom and acclaimed it for the working man, let me say that I acclaim it also for the small businessman or the large businessman who enters into trade or commerce. It should be understood that such men enjoy freedom from restrictive and arbitrary legislation today. The Government is not adopting all the rigours of the Sherman legislation of the United States of America or the rigours of the deceased statute - the Australian Industries Preservation Act - but it is the Government’s view that it should apply to the circumstances of our trade and commerce the fundamental principles in the British Restrictive Trade Practices Act of 1956 and subsequent statutes without doing anything against the public interest. This Bill is evidence that the Government is making a genuine attempt to eradicate anything that is wrong in restrictive trade agreements within the Australian economy, whether they stem from influences abroad or originate within the economy.
The Government has left the Bill open to public scrutiny through two Federal elections. It has been open to scrutiny since December 1962 when the principles of the Bill were first announced publicly by Sir Garfield Barwick, who was then the Attorney-General, speaking through his colleague the present Minister for Shipping and Transport (Mr. Freeth). During that period members on both sides of the Commonwealth Parliament have had an opportunity to receive evidence and arguments for and against this legislation; and yet, on the assertions of Senator Murphy alone, we are supposed to accept without argument that in some way the Bill is an expression of collusion between the Government and big business. Actually, of course, the Bill is couched in such terms that it is not arbitrary or vicious legislation but a measure appropriate to modern business conditions.
As I understand the Bill - and let me hasten to add that I am conscious of the greatest inadequacy - it requires first of all certain agreements and practices to be registered. These practices and agreements have been described in the Bill and I need not repeat them because they have been outlined by the Minister for Works (Senator Gorton) in his second reading speech. This requirement for registration is derived from the English legislation of 1956. This measure is designed not to destroy that which is good in a business arrangement but to eradicate from trade and commerce restrictive arrangements detrimental to the public interest.
If the business community is required to put business agreements and practices into a register, members of that community will hesitate to persevere with practices and agreements which require registration. The very act of establishing a system of registration and requiring certain practices and agreements to be registered is a warning that any party to such an agreement or practice may be brought before the Trade Practices Tribunal if conciliation does not produce a proper result and be subject to an order to discontinue the practice or agreement. If the practice or agreement is not discontinued in accordance with that order, the responsible party may be subject to an injunction involving contempt of court and punishable by the Commonwealth Industrial Court. The Registrar will take up these practices and agreements and apply to them the sanction which the Trade Practices Tribunal believes to be proper.
That Tribunal will consist, first, of a President who will be a man of legal status. He will be a man whose qualifications would qualify him for appointment to the High Court or Supreme Court bench. Therefore he will be a person versed in the principles of law of a very important character. On his right and left will sit two laymen chosen from people with a creditable career in business and who, by reason of retirement from or relinquishment of business will be available to apply not moral or legal skills but commercial skills. This experienced Tribunal will be empowered to make orders. It decides whether a practice or agreement is contrary to the public interest. Perhaps you will permit me to say, Mr. President, that the Tribunal has an administrative character. I do not take much advantage from the newly coined word “sublegislative”, but that is a word that has been used. I recognise that the Tribunal is not a fully judicial body and is not part of the independent judicial hierarchy. If a party claims that it should sit in public, it does so. It is bound to hear arguments from both sides from the parties or their representatives, inside or outside the legal profession. It is bound to hear a case properly put from both sides.
The Tribunal’s conformity with the principles of law is required by the fact that there is a tribunal review, although certainly of limited powers. Furthermore, there is the general supervisory jurisdiction of the superior courts by way of the prerogative writs. Although it has a limited jurisdiction, it is a tribunal different entirely in character from the tribunal we were discussing last night. I refer to the Commissioner of Taxation who operates according to no rule of law and in secret, without the necessity of hearing evidence and argument.
I want to establish in the minds of honorable senators that it is for veritable and substantial principles that I announce my adherence to this legislative approach to the problem. Sir Garfield Barwick stated in his proposals that he sought to avoid excessive use of criminal law in this field. By reason of provisions in the Constitution of the United States of America, I suppose, the Americans were induced to adopt the old fashioned notion appropriate to 1890 or thereabouts, when the Sherman anti trust legislation was introduced. That legislation authorised police officers to inquire into commercial matters. If they were satisfied that there was a case which criminally infringed the legislation, they would bring it before the courts so that a fine or term of imprisonment could be imposed on those persons found guilty. I suppose that the inefficacy of the Sherman legislation in the United Stales is partly due to the inappropriateness of its procedures to the subject matter.
The late lamented friend of the Australian Labour Party - the Australian Industries Preservation Act - has been bringing tears to the eyes of honorable senators opposite tonight. It has been acknowledged to be a dead letter in this country since, I think, 1904; or perhaps more accurately, since 1914 or thereabouts when the Adelaide Steamship Co. case was heard. I do not think it has been used as an authority in any case since then. If there is such an odd case, it does not alter the true description tonight of the Australian Industries Preservation Act as a dead letter. It was based upon the principle of police inquiry, criminal prosecution, and imprisonment or fine. In the Adelaide Steamship Co. case the Privy Council said that a restrictive arrangement or agreement in commerce of itself did not create a combination that contravened the Australian Industries Preservation Act. The Privy Council made it clear that it was necessary also to prove that the arrangement or combination was made with intent to bring about public detriment as a result. That Act has been regarded as a dead letter ever since. Is it not unfortunate that we are treated to such inconsistencies from the Labour spokesmen, Senator Murphy and Senator Cohen?
Senator Murphy said that the Government was at fault because it had not implemented the recommendations of the Constitutional Review Committee. That Committee took the view that the Australian Industries Preservation Act was completely inoperative and completely devoid of practical constitutional application. Therefore the Committee made a positive recommendation to the Government and the Parliament that a referendum should be held to get into this Parliament constitutional power to pass a law which would be effective for the purpose of regulating restrictive trade practices. On the basis that that was an effete statute, the Committee made that recommendation. That was my recommendation. With great respect, I have perused the later High Court cases. I think they are subject, to further exposition. I am inhibited by a dim understanding that cannot see that legislation of that type or of the type we are discussing can have effect, except to the extent of its application to interstate trade.
– Does the honorable senator still support the recommendation of the Constitutional Review Committee?
– Indeed I do, and I regret that a referendum was not held to precede the introduction of this legislation. 1 say in all humility that nobody will take any notice of me, but one of the factors of my disquiet is that I believe this legislation is on an unsound constitutional basis.
– We agree with the honorable senator.
– There you are. Therefore let us have no crocodile tears shed because we are repealing the Australian Industries Preservation Act. It is entirely inappropriate to modern conditions. Everybody with sufficient knowledge of what is required for effective regulation of restrictive trade practices would agree that the principles underlying this legislation are infinitely preferable. I regret that this legislation was not preceded by the establishment of a constitutional basis as was recommended by the Constitutional Review Committee. I regret also that it was not preceded by a public royal commission which would, as a responsible mode of inquiry, establish the degree to which trade practices and agreements in this country are contrary to the public interest. I think it was Senator Kennelly who a few weeks ago pointed out to the Senate the degree to which the records showed that our commerce was subject to restrictive control. That does not necessarily mean to say that our commerce is to the same extent subject to restrictive trade agreements.
I do not pretend to understand the complexity of metropolitan trade and commerce, nor do I know the factors of big companies or big business. However, I take it that what has been responsibly stated in Professor Richardson’s articles and in Sir Garfield Barwick’s statement when addressing the House of Representatives is correct. I refer to the statement that there are agreements that should be subjected to scrutiny by the Tribunal which should judge whether they are in the interests of the public.
At the Committee stage of the debate I will be concerned with a further factor as to whether the principles of this legislation are equally applicable to combinations of capital and labour. I shall ask honorable senators to have regard to sections of the Crimes Act and the Commonwealth Conciliation and Arbitration Act which regulate combinations of labour. Perhaps they suffice to put combination of labour on a basis comparable with that of combinations of capital as provided for in this legislation. It seems to me that in the last 60 years we have developed a strength and virulence in combinations of labour which can do just as much damage to the economy of the country as can the combinations of capital that have been referred to tonight.
There is one point of agreement that I shall have with the Opposition, as indicated by honorable senators opposite who have spoken thus far. I refer to the objection that will be taken to the clause which exempts from scrutiny as a restrictive trade practice any agreement associated with land that is made for the purpose of giving the land owner, as the seller of the goods, an advantage which other people will not have and also which gives immunity from examination to a practice which, by reason of its association with money lending, is immune. We will discuss these matters as the debate develops.
Let us not obscure the fact that underlying the operation of this legislation will be a tribunal which in essence will be independent. It will be equipped with skills to do the job required of it according to the principles of justice. Although it will not be bound by the ordinary rules of evidence, it will be bound to act judicially. Its membership will include people who have skills in trade and commerce. In my search for justice I am satisfied if I can find a tribunal which can be required to act in public and according to evidence, even though it may seek the material upon which it acts in any way that it thinks fit. We already give that power to the Commonwealth Conciliation and Arbitration Commission. That power is not likely to be abused when the Tribunal is bound to hear argument from both sides. They are the fundamentals of justice, even though they are not in strict conformity with judicial concepts.
In this legislation provision is made for registration, for a commissioner to scrutinise agreements, and for him to bring before the Tribunal for adjudication, after an attempt to conciliate has failed, any practice or agreement which is claimed to be contrary to the public interest. It seems to me that, if the Tribunal condemns the practice or agreement, that is a proper method of giving justice in this particularly complicated and difficult field. The everlasting test, the fundamental problem, is whether or not the practice in question is contrary to the public interest. That cannot be stated with greater precision. A very creditable attempt has been made in various clauses to define public interest, but what has emerged is not in any sense a precise definition. It is my belief that, when you have to define whether or not a particular transaction is contrary to the public interest, the appropriate remedy is to set up a tribunal specially suited to deal with the particular problem. I believe that the Tribunal provided for in the legislation conforms to those requirements.
.- All political parties accept the principle that the State has the right to legislate to protect people against undesirable trade practices. All of us have known of undesirable trade practices in the past, and most of us have called for action to be taken against them. The party to which I belong has a particularly strong policy for action against practices which may conduce to the setting up of monopolies. Therefore, I suppose the Government can say that to a degree it is offering us what we wanted. However, we are entitled to criticise the Bill that has been introduced by the Government if we believe that in some respects it does not provide what we wanted.
Many people thought that the desired results could have been achieved by bringing the Australian Industries Preservation Act up to date, by modernising it, and by adding some more effective provisions. The Government appears to have adopted the attitude that was displayed by Senator Wright and to have thought that it was better to build upon a new foundation. Of course, the title of the Australian Industries Preservation Act is much more attractive than that of the present legislation. The Government has been criticised for having watered down the original legislation that was prepared some years ago. I suppose we must realise that strong representations were made to the Government from various quarters, including some of its own supporters and others who perhaps do not support it. The Government was intitled to take note of those representations. But certainly this is a much weaker measure than the original Bill that was prepared. Many of us will watch the performance of this legislation carefully, believing, as we do, that it may well have to be strengthened.
There is still a great deal of dissatisfaction in the business community with what is proposed in the Bill. Some of us would like to have seen the Bill, having come from the House of Representatives where some alterations to it were made, held over until February until those alterations and their possible effects were further examined. However, the Government is determined to go ahead with the Bill, and it seems likely to be passed during this session. I am sure that the appearance of this legislation will be welcomed by the legal profession at least, to whom it is certain to prove a bonanza.
I wish to say a word on behalf of a section of the community that has not been specifically mentioned tonight. I refer to the small business people. It would be idle for anybody to deny that there is grave apprehension on the part of these people in regard to the possible effects of the Bill. When I refer to small business people, I mean those who run confectionery shops, tobacco retailers and newsagents - people who in most cases are individual proprietors. Some people say there is no place in modern business for the small business man. The small business people do not believe that to he so; they regard small business as being a way of life. Undoubtedly they are afraid that this Bill, which has been put forward to harm monopoly interests,- instead will in some respect help monopolies and big business.
– Is not the small business man a victim of monopolies now?
– Yes, but he is afraid that in some cases this legislation will make the position worse. Most of these small business people have invested their life’s savings in their business. Their only world is the goodwill, the stock and the fittings. In many cases they have had to take out mortgages in order to purchase their business. They depend upon a low unit of sales. A cut of a penny or twopence to them is a serious matter, whereas a cut of pounds would be necessary for any real effect to be felt by big business. These small business people have been forced, in self defence against the chain stores and big organisations, to form their own trade associations. They depend on price structures which their association negotiates for them with the manufacturers. They cannot negotiate as individuals, as can the big businessman or the chain store, because they are not big enough. In the same way as an individual trade unionist cannot negotiate with the boss on his own, so the small individual proprietor cannot negotiate with the manufacturer on his own. He has to have an organisation to do the job for him.
These small business trade associations have been negotiating for the small businessmen over the years. Nobody can accuse the small businessman, such as the confectioner, the tobacco retailer or the newsagent, of exploiting the community because the percentage profit which he charges today is exactly the same as the percentage which operated under price control which was imposed by the Commonwealth Government during the war years. These small businessmen have retained the same percentage profit which the Government said was fair during the war years.
– What percentage was that?
– Approximately 6 per cent. I would say that one cannot class these people as exploiters. They say that while they are not exploiters, this Bill treats all organisations, whether of big businessmen or little businessmen, alike. From their point of view, that is an objectionable approach and presents dangers to their way of life. They believe that they could be deprived of their traditional right to have these trade associations defend their interests.
I direct attention to clause 92 (2.) (d) of the Bill, which states - where a direction by or on behalf of a trade association has been given to, or was intended to affect the conduct of, all or any of its members, it shall be conclusively presumed that the direction was authorised by the constitution of the trade association and that those members were required by that constitution to comply with it;
Paragraph (e) lays down - an agreement made by a trade association shall be deemed to be an agreement to which all members of the trade association from time to time are parties and by which those members agree to do all acts and things that, under the agreement are to be done by them or the trade association is to cause, require or recommend them to do.
Those provisions will affect the small businessmen’s associations. The small businessmen claim that if they are deprived of their present liberty of manoeuvre, they will be at the mercy of the manufacturers and others who are well placed to impose whatever terms and conditions they see fit.
The small businessmen claim that the manufacturers could decide to reduce a retailer’s margin and confiscate it for their own benefit. On the other hand, they say that if the manufacturers are prevented from maintaining prices on an orderly scale, retailers will be exposed to large establishments which are able to sustain planned losses in certain lines. Let us take a simple analogy. If their trade association is endeavouring to insure that the price of a block of chocolate remains at 2s., the big chain store organisation can come in and, exercising its power to obtain discounts, may be in a position to sell the block of chocolate at ls. 9d. with the result that the small trader is disadvantaged and in areas close to big chain stores may be forced out of business.
– Does not the worker get a cheaper commodity?
– The worker gets a cheaper commodity for a short time, but when the small businessman is forced out of business the big chain store organisation increases the price to what it was before. The small businessmen say that the price cutting operations of these larger organisations could render the position of most small operators untenable and could force their withdrawal from the scene. If they are deprived of their association they have no right of retaliation. The small businessmen make a very strong point in this regard. While the Bill can deprive small business operators of the right to act collectively, it ignores the situation in which the chain stores can purchase for all businesses through a central buying executive. This will not come within the provisions of the Act.
Governments in Australia in recent years have on a number of occasions done something to protect the rights of the small businessmen. Some years ago the Federal Government took very welcome action to amend the taxation laws whereby vendors were taxed on goodwill increments after disposal of their businesses. This was a big consideration for the small businessmen, and all political parties in the Federal Parliament supported the measure. Recently the Victorian Government conducted an inquiry into practices related to the sale of small businesses, and then took action to safeguard purchasers. I would point out that while the Bill we have before us has one conspicuous omission in that it does not define what a small business is, the Victorian Government defined a small business as one in which the value of goodwill, plant, equipment and fittings amounted to £15,000 or less. Some of the trade associations believe that the figure pf £15,000 is too small, for instance in the case of a newsagent. They say that a small business could be defined as one where the value of goodwill, stock and fittings did not exceed £30,000.
The attitude of the small business people to this Bill is that it pays no regard to the equity of their investments. They do not merely attack the Bill. They adopt a constructive point of view. They have put forward certain proposals. They suggest that the need of the small business people is closely related to the provisions in clause 38 (c), which provides -
In determining whether an agreement is an examinable agreement, regard must not be had -
to any provision of the agreement relating to the remuneration, conditions of employment, hours of work or working conditions of employees;
The small business people believe that their trading conditions and margins should be given similar safeguards. Alternatively, they suggest that their case would appear to warrant consideration comparable with that accorded to orderly marketing arrangements for primary producers. Marketing boards which protect producers are immune from this Bill. Surely the investment and wellbeing of both sets of people, whose hard working capacity is comparable, should be equally sacrosanct.
Therefore, the small businessmen would like to see in the Bill a definition of a small business. There is a vague reference in the Bill to consideration being given to the needs of small businesses, but this is completely unsatisfactory to the people concerned. What does the term “ small business “ mean? These small business people believe that if the Act is to be effective it should contain a definition of the term “ small business “. They suggest, for example, that in the case of a newsagent, it could be defined as one in which the value of goodwill, stock and fittings does not exceed £30,000.
The small business people believe that their trade organisations, whose membership comprises at least 75 per cent, of people of this kind, could be included in the exemptions that are provided in clauses 38 and 39 of the Bill. That is their case. These people are not in business to exploit the community. I am one of those who like to go to the corner shop, even if I pay an extra Id., 2d. or 3d. on an article, because in this way I am helping to keep the individual proprietor in existence. I respect the individual proprietor. I think that there is merit in the argument that has been advanced by the small business people.
This is their way of life. They are not exploiters. They are battling for the right of the individual to be his own boss. They are prepared to stand up against the big monopolistic organisations, the chain stores and others, to fight their case. Therefore, I would like to see some recognition given to their case in any legislation which is designed to prevent undesirable practices and the growth of monopolies. If the Government cannot accept the proposal now, 1 hope that it will consider it during the two or three months that the Parliament is in recess. I hope that the Government will give consideration to these little business people who at the moment are gravely concerned about the extent to which this Bill, which contains admirable provisions in other respects, might adversely affect their future.
The DEPUTY PRESIDENT.- Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
– 1 rise to support the amendment moved by Senator Murphy. The measure before the Senate had its origin in the panic action by the Government early in 1960. It was part of the policy of the Government to cure the inflation that occurred before the credit squeeze. This measure was an alibi adopted by the Commonwealth Government in order to make an attack upon the wages of the working people. 1 say that because in February 1960 the Prime Minister (Sir Robert Menzies) announced a five point plan to cure the inflationary process that was quickly developing at that time. The five points of the plan were: Restraint of excessive liquidity by supporting a call for £25 million in the statutory reserve deposit; the removal of import controls on the majority of goods; a promise to avoid deficit financing in the next budget; a promise to oppose an application by the unions for an increase in the basic wage; and a promise to give consideration to legislation aimed at controlling monopolies and restrictive trade practices.
Government action to oppose the application by the workers for an increase in the basic wage was quickly taken. Almost the day after the Prime Minister made the announcement of the five point plan the Commonwealth sent counsel into the court to persuade the court that it was nol an appropriate time to increase the basic wage because of the inflationary spiral. But it has taken six years for this measure to come before the Parliament and during that time the Commonwealth Government has repeatedly gone into court to attack the wages of the working people. The Government was very loath to undertake any activity that would restrict the actions of those people who were exploiting the wage and salary earners who were being deprived of their just rights through the arbitration system. But it is typical of the Government that it always moves quickly when it wants to bring repressive legislation or repressive action against the working people. When the Government has to move against the managers of the Liberal Party of Australia, action is very reluctantly taken and action on this measure has been taken only as a result of continuing public pressure.
The forces opposed to this legislation are supporters of the Government and are even members of the Liberal Party itself. I want to quote from an article that appeared in the Melbourne “ Age “ of 27th September 1965. The article appeared after this legislation had been floated by the Attorney-General (Mr. Snedden) in another place. The article read as follows -
The Trade Practices Bill was unworkable in its present form and should be rejected, the Melbourne Chamber of Commerce legislative committee has reported.
The committee’s conclusions are reported in the chamber’s monthly bulletin.
The report says that when it began its study, the committee felt it was reasonable that restrictive trade practices should be subject to some legislation.
However, after a detailed examination of the provisions of the proposed legislation, it was unanimous that the bill as drafted was unworkable.
Further in the article the Chamber was reported as having said that there was uncertainty in the legislation. The newspaper article stated -
However, in a great number of cases the liability to register would not be clear because of the extreme width of the legislation.
No act should create a criminal offence in terms of uncertainty.
What are Chamber of Commerce members uncertain about? Are they uncertain as to whether or not they have an agreement which could come within the width of this legislation? They do not want to register the agreement so they say that they think there is uncertainty in width. The certainty of the legislation is that if a person has an agreement then it has to be registered; then that person will not be outside the legislation. That is the greatest certainty for those people. For people to object to the legislation on the basis that they may have to register an agreement does not cut any ice with me.
The debate in another place on this legislation has amply demonstrated that members of the Liberal Party are not behind this legislation. Many members of that party who spoke on this particular provision spoke against it. Many others gave it very grudging support and said that the legislation should be amended. One member from South Australia said that agreements should not be registrable. He did not want any legislation at all. He had his tongue in his cheek when he made the statement. He wanted to catch the eye of the Prime Minister because there might be a portfolio available at some time and he might get it if he did -not oppose the measure.
Like many other honorable senators I have received letters from various people and organisations opposing this legislation. Those letters have all come from one source. They have come from the people who have a vested interest in continuing the state of affairs that has existed in Australia for a considerable time. I wish Senator Wright were present because I say that what they want to see continued is a freedom to exploit - a freedom that they have exercised for some considerable time. The opposition to the Bill in another place was along the lines of the correspondence which has been received by honorable senators. That opposition revealed that those members of the Liberal Party who opposed the measure have become the voice of this section of the community. But how does the attitude of those members of the Liberal Party measure up to the redrafted platform of that Party? The platform was redrafted in 1960 after the Prime Minister had announced that legislation of this type would be introduced.
This subject was dealt with in a report which appeared in the “ Sun Herald “ of 27th November 1960, a few days after the introduction of the credit squeeze. That report- stated -
In a redrafted platform issued today, the Liberal Party of Australia reaffirms its policy of preserving a competitive, free enterprise economy.
It also affirms its policy of protecting the community against monopolies, combines and industrial organisations where they operate “ in a manner contrary to the public interest “.
I remind every member of the Liberal Party in this place, and every member of that Party in another place, that they were elected in accordance with that policy. Yet we find that they are prepared to enter this Parliament and argue that there should not be any legislation to control these restrictive trade practices. This is sheer humbug on their part. What right have they to seek entry to this Parliament on a policy put before the people and approved by them, and then repudiate the very people they are here to protect? Of course, they have been repudiating all their lives so it does not make very much difference. But in view of the policy of the Liberal Party, how does the Government explain the action of its supporters in another place in voting for this measure?
We are told that this is pioneering legislation and that for that reason we should be moving very carefully along the line. The Government, after giving attention to this matter for some time prior to 1960, took another five years to bring this legislation before the Parliament. I would be interested to know what other legislation has received such long consideration. Did the Government allow similar consideration of the Stevedoring Industry Bill, which came before us earlier this year? The Government made the Senate sit for a week when it should have been having its week off, in order that that legislation might be passed. The Government gave us about six days in which to pass that legislation. Did the Government provide the necessary length of time for consideration of the amendments to the Crimes Act? That was another piece of repressive legislation against working class people. It was not given long consideration.
But when legislation which may place some restrictions on the managers of the Liberal Party is proposed, it is time for a lengthy debate and for lengthy consideration of the proposals. How can this be pioneering legislation? The following countries of the Western world have legislation similar to this: The United States of America, the United Kingdom, Canada, South Africa, Sweden, Denmark, the Republic of Eire, New Zealand, the Netherlands, Norway and West Germany. The European Economic Community, through the Treaty of Rome, and the Australian States of Queensland and Western Australia also have similar legislation. Some of that legislation has been operating for more than 70 years. Yet we are told that this is pioneering legislation and that for that reason the steps should be taken slowly.
In every other respect, Australia has become a nation of hangers-on and copyists in regard to the United States. But in this respect we do not consider that its legislation would be good enough for us. The reason for that is that, if legislation similar to that which operates in the United States were to operate in Australia, the people who manage the Liberal Party would be caught in the net and they would have to have their wings clipped severely. For a great many years the Government has had knowledge of the practices that are carried on in Australia. They have not been canvassed in this place to any extent; but in 1957 the Western Australian Government held a royal commission into the restrictive trade practices operating in that State. Previously, legislation known as the excess profits legislation had been passed. The report of that royal commission is very interesting. I will quote a few passages from it. Under the heading “ Price Fixation and Control “, the Commission stated -
Considerable evidence was heard on the question of price fixation and control by associations.
Whilst agreement on price fixation was unanimous it was only so provided the associations had the power to be the price fixing authority as the extracts from evidence set out below indicate -
Question: Can you indicate why you are not in favour of Government control and yet are in favour of private control in regard to price fixation?
Witness: Yes, because firstly, we stand primarily for free enterprise-
What hypocrisy - and the voluntary conducting of our affairs without being bound by a statute.
To a further witness. - Question: Why do you fix the retail price of an article?
Witness: There is a very good reason for it. In fixing the retail price we control the price that the public pays for the article. We control the profit margin which the various sections of trade make as between the manufacturer and the ultimate consumer . . .
Question: Do you believe in price control?
Witness: No, I do not believe in State price control.
Question: You believe in fixing a price though?
Witness: Yes, by our own members.
Evidence tendered and extracts from minute books show clearly that many associations have made strenuous efforts to enforce prices agreed upon by members. It was revealed that in some trades suspected offending members were subject to examination of their books by tribunals and in quite a number of instances the offender bad to either submit to a fine or make a donation to the association funds ranging from £25 to £100 or pay into the association funds the profits of the transaction. Minutes indicated that where the amounts were not paid, firms and members were asked to resign. These aspects are set out in minute books and other evidence.
That evidence was available to the Government in 1957. Under the heading “Level or Collusive Tendering”, the royal commission had this to say -
The following list provided by Mr. G. W. Fruin, Comptroller of Stores, West Australian Government Railways, indicates a number of articles which are non-competitive as to price whenever tenders are called . . .
I do not want to read the list. It sets out 46 different items which arc not subject to any competition as to price. The royal commission then quoted the following statement by Mr. Fruin -
When we call quotes for any of thesethe prices offered are identical.
The royal commission went on to say -
Perusal of minute books indicated considerable discussion on various contracts and in many cases the minutes listed the agreed discounts on the different lines for which tenders had been invited.
Whenever it was possible to do so, disciplinary action was taken by some associations against any member who committed a breach of prices in respect of tendering. The Commission became aware of a number of instances where a member who tendered a price below that agreed to by the association was required to pay the profit of the transactions into the association’s funds.
I believe that that amply demonstrates that the Government did not require the five years that have gone by for the consideration of this legislation. The royal commission that was held in Tasmania produced the same sort of evidence for the Government, although that evidence was produced only this year. The other evidence to which I have referred has been available since 1957. Eight years have gone by since the report of the Western Australian royal commission was presented. Tha Government has taken that length of time to present this legislation and to water down the proposals that were put forward by the then Attorney-General in 1962. I simply ask this question: Does this evidence indicate that legislation of this type is not required?
The Western Australian royal commission found that 111 different trade associations were operating in that State. I understand that since its report was presented the number of associations has increased to 172. There is a greater number , of associations in the more populous States of Victoria and New South Wales. It is reliably estimated that between 600 and 700 associations are operating throughout Australia. Those associations are formed, not for the purpose of protecting the Australian public, but for the purpose of protecting particular groups of people.
I should like to read a short extract from the “ Current Affairs Bulletin “ published on 10th June 1963. Sir Garfield Barwick referred this for further reading, but it is interesting to note what the author of this article had to say-
Indeed, a clear presumption, supported by our knowledge. of the origin of restrictive agreements and by judicial examination in other countries, is that restrictive practices are designed primarily to protect the’ interests and income of particular groups. Any advantages to the economy at large which may emerge from these arrangements, are incidental and subsidiary to this main purpose.
Of course, that is why these associations are formed - to protect the interests of particular people. If something flows towards the general public, that is all right for the general public but that is not the purpose of the associations. I do not say that all associations are bad, but I think the real success of the British legislation in relation to restrictive trade practices rests in the fact that all practices are regarded at the outset as being prima facie against the public interest and the onus is on those who are operating a practice to prove that it is operated in the interests of the public and is not detrimental to the public interest. That is where this Bill falls down. It provides that all agreements, not practices, are of public benefit until someone proves that they are detrimental to the’ public interest.
However, we support the measure. It is not the kind of measure we would have brought down had we been in office. The Bill should be regarded as the first tentative step in the right direction. It should be treated like the first faltering steps of a child who, if it is given proper treatment and encouragement, will eventually learn to walk. I hope that that will be the ultimate fate of the Bill but, in the opinion of the Australian Labour Party, it will not be, very effective in its present state.
I think one is entitled to ask a few questions about what happened to Sir Garfield Barwick’s proposals. Why has the number of forbidden practices been reduced from four to two? Why has monopolisation been struck out as a forbidden practice? Why have resale price maintenance and predatory price fixing been taken out of the scope of forbidden practices? Why is there no reference to mergers and take-overs? After all, mergers and take-overs may operate for the specific purpose of avoiding having two or more persons enter into an agreement to operate restrictive trade practices. Mergers and take-overs may operate for the specific purpose of creating monopoly control in a particular area. Yet these things have been dropped from Sir Garfield Barwick’s proposals. 1 should like the Minister to tell us why vertical practices are not within the examinable matters contained in this Bill because these are things which could very well operate to the detriment of the public. Most of all, why are agreements, and not practices, registrable? It is possible that restrictive practices could be operating in industry to the detriment of the public interest and not be reduced to the terms of an agreement. Because they are practices which are not reduced to the terms of an agreement, they are not registrable. The point is that the present Attorney-General sets out to make agreements registrable whereas the former Attorney-General, Sir Garfield Barwick, intended to make practices registrable. That would have been much more satisfactory. The practice could have been reduced to writing and filed in the register, but the Government has- gone past that and does not now intend to carry on with the proposal. In respect of mergers, Sir Garfield Barwick had this to say -
The parliamentary statement of December last referred in several places to restrictions which result in distortions of the market. Such distortions occur when the prices, the availability or the quality or quantity of goods or services are determined arbitrarily by persons acting in their own self interest, or when persons desirous of entering or expanding businesses are prevented from so doing by the arbitrary and irresponsible action of others - irresponsible because not capable of being called to public account. The power to distort the market in this manner may be vested in a single person, e.g. a monopolist, or it may be vested in a group of persons - whether the group be large or small - acting in concert. In either event, if such a power is exercised so as to distort the market, there occurs a restriction of what economists refer to as “ effective “ or “ workable “ competition.
That is what Sir Garfield Barwick thought of the many practices that had been brought to his notice and which are set out in a booklet from which I shall not quote because Senator Cohen has already quoted from it. In respect of mergers the AttorneyGeneral said -
I make reference, in ‘the paper, to the inclusion in the scheme of anticipated mergers. This is new, not only here but elsewhere. It is thought there are occasions when an anticipated merger may be a step towards monopoly - maybe it is a substitute for a restrictive agreement or practice, or for some other reason if effected it would be to the public detriment.
Why were these important proposals of Sir Garfield Barwick disregarded in this legislation? These proposals were presented to the Parliament on 6th December 1962 and today, 8th December 1965, three years later, we have a very much watered down proposal before us for acceptance. Nevertheless, the Labour Party does not oppose the measure. We hope that the Government will have sufficient fortitude to make it work as it should work within its own limitations.
.- in reply- The Bill has been well debated in this chamber tonight with many points of view and arguments being advanced and contravened. I thought that Senator Murphy, who led for the Opposition, was rather too extravagant in his remarks. In fact, he would be very hard put to support most of the accusations he made against numbers of people engaged in commerce, although I have no doubt that some people engaged in commerce are acting against the public interest of Australia and Australians. Indeed, that is why this
Bill was necessary. However, I think the number would be small.
The basic things I want to say in closing this second reading debate are simply these: There are restrictive trade practices operating in many fields in Australia and other countries, and they have been operating in many fields in Australia for some considerable time. There are restrictive trade practices which are entered into by some who mouth the praises of private enterprise and competition but who do not like the hard work required by true private enterprise and competition, and who therefore seek to avoid what they praise by means of restrictive practices. There are practices of this kind which bear on the interests of ordinary Australians and Australian consumers. For these reasons, this Government and these parties, which are not laisser-faire parties and which are concerned for the interests of the ordinary Australian consumer, have brought down this Bill, and it is therefore presented to us tonight.
It has taken a long time to get the Bill here; that is true. This, I think, is because it deals with one of the most complicated fields which one can imagine, because there are kinds of restrictive trade practices other than the ones to which I have recently referred, which do not bear against the interests of the ordinary Australian consumer, or Australian business or Australian farmers, but which can be of benefit to the country and to the community. Therefore, it is necessary to have an independent tribunal which can examine restrictive trade practices to see whether they fall into the’ category which does harm the Australian consumer, or whether they . do not, or whether in fact they might on balance be of benefit to Australia and all Australians. That is what is provided for in this Bill.
Senator McManus referred to some worries that small business men might have about the Bill. Clause 50 provides -
In considering whether any restriction, or any practice other than a practice of monopolisation, is contrary to the public interest, the Tribunal shall take as the basis of its consideration the principle that the preservation and encouragement of competition are desirable in the public interest, but shall weigh against the detriment constituted by any proved restriction of, or tendency to restrict, competition any effect of the restriction or practice as regards the matter referred to in the next succeeding sub-section.
Those matters include the needs and interests of small businesses. So it is in the Tribunal’s competence to take fully into account the needs and interests of small businesses. I should have thought that it would be better to leave the Tribunal - as indeed the Bill does - to make its definition of what a small business is. When one tries to define “small”, “large”, “medium”, “ substantial “ or words of that kind, it is extremely difficult. If one attributes a value, one is immediately under the pressure that somebody is only £500 outside that figure, that there is really very little difference, and that two years ago he would have been inside the value. A rigidity would, perhaps, give less protection to what we would regard as a small business than would the independent tribunal which is able, in public, to examine these matters and make up its mind on them.
– The Minister will be reassured to know that the English draftsman in August 1965 used the word “ substantial “ in the monopolies and merger legislation of the United Kingdom.
– I thank the honorable senator. I do know that I am reassured to know that, but I am sure that he is. Another point was raised by both Senator Cohen and Senator Murphy, I think, although I may be doing one of them an injustice. It was that big businesses might get away with something because they could not register an agreement, and all that could happen to them would be that they would be convicted for not registering an agreement and be fined £1,000 or some other amount that they could well afford without any worry. But an agreement registered or unregistered is examinable by the Tribunal. When anybody has been convicted for not registering an agreement, that is a clear indication that the agreement exists. Otherwise, he could not be convicted for not registering it. It is therefore examinable. It is therefore competent for the Tribunal to tell the person either to abrogate the agreement or to turn it into a form that is in the public interest. If that were not done, he could be treated as being in contempt of court and brought before the Industrial Court to be dealt with.
– On the assumption that there is an eventual finding that it is contrary to the public interest, a lot of plundering could have taken place in the meantime.
– Yes, on that assumption only. There was another point to which I did wish to refer but I shall have the opportunity, I am sure, when we reach the Committee stage. The Government cannot accept the amendment which has been moved by Senator Murphy, if indeed one can call it an amendment. I should think it is an addendum. I had thought of moving a further amendment to it to provide that the Senate notes with approval that the Government has brought in this Bill. Rather than do that and waste time, I hope that the Senate will express its approval now in voting against Senator Murphy’s amendment.
Question put -
That the words proposed to be added (Senator Murphy’s amendment) be added.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . . .1
Question so resolved in the negative.
Original question resolved in the affirmative.
Bill read a second time.
Senate adjourned at 11.44 p.m.
Cite as: Australia, Senate, Debates, 8 December 1965, viewed 22 October 2017, <http://historichansard.net/senate/1965/19651208_senate_25_s30/>.