25th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 1 1 a.m., and read prayers.
– I direct a question to the Minister in Charge of Commonwealth Activities in Education and Research. In view of the Commonwealth Government’s financial responsibility in relation to university education, will the Minister say whether it is or is not the Government’s policy that, in principle, every matriculated student should be free to commence studies in the faculty of his choice?
– This is basically a matter for decision by the councils of autonomous universities, but I believe it would be agreed by all concerned with education that it would be quite unrealistic to expect that a matriculated student could enter any faculty of his choice at any time. I do not believe the universities would suggest that that was either desirable or possible.
– I ask the Minister representing the Prime Minister: In view of the fact that 20 Ord River farmers this year averaged 1,937 lb. of seed cotton per acre, which is a 37 per cent, increase on the previous year’s production and 48 per cent, more than America’s average annual production of 1,362 lb. of seed cotton per acre over the years from 1958 to 1962, could he advise me whether the Western Australian Government can expect, before Christmas, a favorable reply to its application for Commonwealth financial assistance to complete this important project of northern development?
– I understand that the Premier of Western Australia has submitted a revised and up to date case for assistance for the completion of the Ord River scheme. I understand also that this is in the hands of the Government at the moment and is being considered. I am sure that the Government will, as quickly, as possible, give a decision on this revised proposition.
(Question No. 515.)
asked the Minister representing the Acting Minister for Defence, upon notice -
Referring to the Prime Minister’s announcement in the House of Representatives on Wednesday, 18th August, 1965, that the Government had decided to send a further 350 Australian combat troops to Vietnam -
before the Government made this decision, did it receive any request from the Government of South Vietnam for an increase in the number of Australian troops in that country?
if it did, was this request similar to that made at the time when the Government first decided to send troops to Vietnam, and which the Government has so far declined to make public?
in any event, will the Government on this occasion table any such request in the Senate? and
if no such request was received, upon what basis was the latest decision made?
Notice of this question was given on 24th August 1965.
– The Acting Minister for Defence has furnished the following reply to the honorable senator’s questions -
The Government’s decision to send to Vietnam supporting forces to make up the infantry battalion already there to a battalion group was taken after considering how most effectively to meet the request of the Government of South Vietnam for further military assistance which was announced by the Prime Minister on 29th April. There is continuous consultation with the Government of South Vietnam regarding developments in the situation and how the help Australia is capable of giving can most effectively be applied.
(Question No. 681.)
asked the Minister representing the Prime Minister, upon notice -
Is Australia at war, declared or undeclared; if so, with whom?
– The Prime Minister has provided me with the following answer to the honorable senator’s question -
I presume the honorable senator’s question refers to the Australian commitment in South Vietnam. I would, therefore, draw his attention to the reply I gave on 17th August to a similar question asked in another place by the honorable member for Yarra. The appropriate “ Hansard “ reference is to be found on pages 146-47 of 17th August 1965.
(Question No. 723.)
asked the Minister representing the Prime Minister, upon notice -
With reference to the reported announcement, of 9th November, by the Australian Wheat Board, that Australia has sold a further500,000 tons of wheat, worth about £13 million, to Communist China, how long does the Government intend to continue the double standard of selling our produce to China while refusing to recognize that country and opposing its admission to the United Nations?
– The Prime Minister has supplied the following answer to the honorable senator’s question -
The Australian wheat crop is marketed by the Australian Wheat Board and not by the Australian Government. The Government does not interfere with commercial arrangements entered into by the Wheat Board and other marketing authorities or by private firms with buyers in Communist countries unless the commodities involved are strategic materials, the export of which is banned. Wheat is not regarded as a strategic material. Trade with Mainland China is a separate matter from the Government’s attitude to the recognition of Mainland China and its admission to the United Nations.
(Question No. 732.)
asked the Minister representing the Minister for Immigration, upon notice -
In view of the immediate prospect of rapid deterioration of race relations and the internal economy of Rhodesia, and its impact on those who disagree with the unilateral declaration of independence by a Rhodesian minority -
will the Minister give immediate instructions that assisted passages, similar to those offered to British or South African citizens, be offered to those Rhodesians who see a changing and unacceptable way of life ahead to come to this country as assisted migrants; and
will the Minister treat this matter as urgent and so relieve many Rhodesian citizens of the cloud of social, political and economic uncertainty which presently hangs over them?
– The Minister for Immigration has supplied the following answer to the honorable senator’s questions -
As a general rule, British subjects resident in countries other than the United Kingdom, where the United Kingdom-Australia. Assisted Passage Agreement applies, are eligible for consideration under the General Assisted Passage Scheme. However, at the specific request in 1959 of the Government of the then Federation of Rhodesia and
Nyasaland, this scheme was not made applicable to residents of Rhodesia and Nyasaland. The Federation itself had adopted an active immigration policy and was anxious not to lose population through assisted migration to other countries.
For the same reasons, when the Federation was dissolved, no arrangements were made with Rhodesia for assisted migration to Australia.
(Question No. 767.)
asked the Minis ter representing the Minister for Health, upon notice -
– The Minister for Health has furnished the following reply to the honorable senator’s questions - 1 and 2. Information is not available regarding the amounts written off as bad debts by public hospitals in the States.
1961- 62 .. .. .. £2,195
1962- 63…… £6,967
1964-65 .. .. .. £11,894
No dissection into the amounts written off in respect of (a) public wards (b) intermediate wards and (c) private wards is available.
(Question No. 781.)
asked the Minister representing the Prime Minister, upon notice -
Has the Government given consideration to repealing section 49 (2) of the Public Service Act, commonly known as the “ marriage bar “ which provides for the retirement of every female officer from the service upon marriage, unless the Board certifies to special circumstances which make her employment desirable, and prohibits the employment of an already married woman, either permanently or temporarily, unless a similar certificate is given by the Board? If so, what is the Government’s decision?
– The Prime Minister has provided me with the following answer to the honorable senator’s question -
The subject referred to by the honorable senator is currently under examination by the Government
There Is a variety of considerations that need to be looked at. I would think that early in the new year something further could be said on the matter.
– I present the following papers -
Conference on Trade and Development, Geneva, 23rd March to 16th June, 1965-
Statement by the Right Honorable J.
McEwen, M.P., Minister for Trade and Industry, at the Conference, 26th March, 1964.
Statement by Mr. A. P. Fleming, O.B.E., Head of the Australian Delegation, to the Conference, 10th June, 1965.
General Assembly- Resolution 1995 (XIX) establishing the Conference on Trade and Development.
Motion (by Senator Henry) agreed to -
That Government business take precedence of general business after 8 p.m. this sitting.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henty) read a first time.
– I move -
That the Bill be now read a second time.
In 1961, as honorable senators will know, the Government introduced a system of payroll tax rebates to provide an incentive for Australian manufacturers to increase exports of their products. This Bill relates to the special rebates as they apply in relation to motor vehicles exported from Australia. Vehicles are exported from Australia to various countries and the preliminary figures for 1964-65 show that the value of this type of export is significant. It is also increasing. In 1964-65 exports of cars, commercial road transport vehicles and certain other motor vehicles amounted to approximately £8.3 million. Exports of components for use overseas as original equipment to be assembled in finished vehicles of this type were valued at £7.7 million.
Various factors have led manufacturers to export vehicles in what is known in the trade as a completely knocked down condition, rather than as finally assembled units. One factor is the desire of the governments of countries to which the exports go that imported vehicles be assembled there. Another is that freight rates on finished vehicles are higher than on export packs of vehicles in a completely knocked down condition. Where a manufacturer exports a vehicle as a completed unit he is able to include the full f.o.b. value of it in his export sales for the purposes of the special rebate. Where, however, the export is made in the form of a completely knocked down pack, this is not the case. In these circumstances, the manufacturer is technically not entitled, as the law stands, to include in his export sales the value of components he has purchased in Australia from other manufacturers and which he exports without altering them in any way. He is not able to include, either, the value of components that have been imported from overseas, but with the Government’s policy of increasing local content of vehicle exports imported components are a diminishing factor.
This Bill will permit a motor vehicle manufacturer to include in the value of his export sales the value of components purchased from local suppliers or imported from overseas which are included in export packs of vehicles in an unassembled form. This position will apply in relation to the 1965-66 financial year and subsequent years. To qualify for this extended rebate, however, a manufacturer will be required to make use as far as practicable of components manufactured in Australia. The precise levels of Australian content are not stated in the Bill because they will change from time to time with changing conditions, and are matters to be settled administratively according to conditions prevailing from time to time. Manufacturers will, however, be advised at appropriate times of the levels of Australian content that have to be maintained in relation to their export packs so as to qualify for the extended rebate.
The Bill also makes a minor amendment of a formal nature. The Commonwealth War Graves Commission, which is exempt from payroll tax, was previously known as the Imperial War Graves Commission. The Bill deletes the old name of the Commission and inserts the new. Explanations of the technical provisions of the Bill are set out in an explanatory memorandum which is available to honorable senators and I do not propose to speak at greater length at this stage. I commend the Bill to the Senate.
Debate (on motion by Senator Kennelly) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator McKellar) read a first time.
. -I move -
That the Bill be now read a second time.
The purpose of this Bill is to clarify and simplify the manner of voting at future referendums. Under the existing law, a voter at a referendum is required to indicate his vote by writing the figures “ 1 “ and “ 2 “ in the squares printed on the ballot paper. If he approves the proposed law, he writes the figure “ 1 “ in the square opposite the word “Yes” and the figure “2” in the square opposite the word “No”. Conversely, if he does not approve the proposed law, he writes the figure “ 1 “ opposite *’ No “ and the figure “ 2 “ opposite “ Yes “. The use of a cross only, or the figure “ 1 “ only, in one of the squares does not render a ballot paper informal, providing the other square is left blank. In that case, the cross is deemed to be equivalent to the figure “ 1 “.
At a referendum, the voter has to answer a specific question. The question set out on the ballot paper reads -
Do you approve of the proposed law for the alteration of the Constitution entitled …
Then follows the title of the proposed law. Of course, the straight out answer to this direct question is “Yes” or “No” - not “ 1 “ and “ 2 “. Under the provisions of this Bill the voter will be required to write simply either “Yes” or “No” in answer to the question. This is a more positive and, indeed, a more correct method of voting at a referendum. As the arguments in favour and against the proposed law must be forwarded to the Chief Electoral Officer by 30th December, that is within four weeks of the passage through both Houses of the Bill to alter the Constitution, any change in the method of voting at a referendum would have to be passed this session to be effective at the referendum to be held next year. This is so because the arguments may well contain instructions to the electors as to the manner of voting.
Consideration has been given to the question of possible confusion to voters if this Bill is passed should some future Senate or House of Representatives election be held at the same time as a referendum. However, the Government believes that the proposed form of voting simplifies and clarifies the method of voting and, indeed, minimises the risk of confusion to voters. The present provisions which provide that a ballot paper marked only with a cross or marked only with the figure “ 1 “ constitutes a formal vote will no longer be appropirate. Clause 3 of this Bill repeals those provisions. I commend the Bill to honorable senators.
Debate (on motion by Senator McKenna) adjourned.
Consideration resumed from 2nd December (vide page 1985), on motion by Senator Henty-
That the Bill be now read a second time.
Question resolved in the. affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Consideration resumed from 2nd December (vide page 1986), on motion by Senator Henty-
That the Billbe nowread a secondtime:
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
Debate resumed from 25th November (vide page 1860), on motion by Senator Henty -
That the Bill be now read a second time.
– The Bill now before the Senate declares the rates of tax for the current financial year. For the very first time, the rates are expressed as a percentage of taxable income rather than in pence or shillings and pence per £1 of income. This is designed to fit in with the introduction of decimal currency in February of next year. The changeover to decimal currency will, according to the Government, involve no increase in tax rates on incomes up to as high as £24,000 per annum, but it will, we are told, involve some loss of revenue. In the case of incomes in excess of £24,000 per annum, the adjustment of fractions in relation to the changeover to decimal currency will involve an increase to the taxpayer of £1 per £3,000 in excess of £24,000. I shall not shed any tears about that, and I should imagine that people in receipt of incomes of that order would not shed any tears either.
The Treasurer (Mr. Harold Holt) has indicated that the overall changeover to decimal currency will cost revenue £600,000 per annum. It is good to see the Treasurer setting an example in relation to the conversion to decimal currency by converting to the lower decimal unit rather than to the higher, although that will involve the country in a loss of revenue of £600,000 per annum. This is quite good. I repeat that I hope his example will be followed in the commercial community. The Bill also follows what was done in the Income Tax and Social Services Contribution Bill as it was formerly known and cuts the title down to the simple words Income Tax Bill. This is an advantage.
One of the main changes made in the rates bill is to increase tax on individuals by 2i per cent. The Treasurer (Mr. Harold
Holt) has indicated in his Budget speech that this increased taxation will cost the taxpayers £17.8 million this year and £18.9 million in a full year. This increase was part of the general increases in taxation that were mentioned by the Treasurer in his Budget speech which in all were to cost £84.7 million in a full year and for the part of this financial year to which they are applicable £72.4 million. Apart from the increase in the tax on individuals, I remind the Senate very briefly of what the other taxes were. They are set out in detail in the Budget speech.
The rates of customs and excise duties on petrol, automotive distillate, aviation gasolene and aviation turbine fuel were increased by approximately 3d. a gallon. This was estimated to cost £25,060,000 in a full year and £21,890,000 in this current year. The rates of excise and customs duty on beer were increased by ls. 6±d. per gallon which the Treasurer said, was broadly equivalent to an increase in duty of something over Id. for a 10 oz. glass. I understand that those who are drinkers found that far more than that amount was added to the price of this commodity. Under that head beer drinkers were to pay £20.9 million in a full year and for this year the Treasurer expected to collect £16.56 million from that duty. On spirits the rates of customs and excise duty were increased by £1 lis. a proof gallon. The Treasurer indicated that that would raise £6,420,000 in a full year and £5,390,000 in 1965-66. With regard to tabacco, the rates of customs and excise duty on cigarettes were increased by 4s.lld. a lb., on cigars by 4s.l0d. a lb. and on manufactured tobacco by £1 lis. 8d. a lb. The Treasurer indicated that the increased taxation on these items would yield £13.3 million in a full year and £10.7 million in the current year. As I indicated, the total overall collection on items that impact upon the daily lives of the people of Australia represent a charge of £84.7 million in a full year and £72.4 million in the current year.
We of the Opposition indicated our objection to these taxation proposals when the Budget was under consideration in the Parliament. For the reasons that we then gave we shall press our objection to voting against the motion for the second reading of this Bill. The other main purpose of the Bill is to Impose taxation, at the rate of 50 per cent, of taxable income or 10s. in the £1, on three classes of income; namely, certain income of trust estates, certain income of the members of partnerships, and income of certain superannuation funds. This tax, as we well know because we debated it recently on the Income Tax Assessment Bill, is designed to discourage or penalise forms of tax avoidance to which the Commonwealth Committee on Taxation - the Ligertwood Committee - directed attention. We offer no specific objection to this tax.
The tax on individuals will have an adverse effect on the Australian economy. My comments also embrace the other taxes to which 1 have made reference. They all play a part in restricting demand and, therefore, in restricting productivity. They have had an adverse effect generally. Unquestionably, they have brought about a slowing down of the economy. There are other factors in that slowing down; but the taxes which are imposed and which reach into the pockets of the ordinary individuals in Australia - some, such as the excise taxes, at flat rates, and others on the basis of income - have a depressing effect in the community. We are asked to approve these substantial provisions at a time when there is a clear fall in consumer demand. I suppose that the most outstanding example of that is what has happened in the motor vehicle industry.
That brings me to the second point that I make; namely, that unemployment is now on the move. There have been dismissals in the motor vehicle industry, which unquestionably is a key industry. Unemployment is on the move at a time when Australia is to be faced with the problem of accommodating numerous school leavers in the next month or two. According to the Commonwealth Statistician, stocks in the hands of wholesalers and other people are accumulating. That is due to the falling off >in demand. That, of course, predicates that the slowing down will have future effects. Manufacturers are not disposed to proceed with production when their stocks are accumulating. It takes quite a period for the economy to recover from any slackness in demand leading to slackness in production.
It takes time to restore the impetus and business confidence, both in buyers and ia sellers.
At the present time we are also faced with evidence of a slackness in housing construction, which unquestionably is a key industry. The effects of a slowing down in that industry radiate right through the economy. Housing activity is always one of the first activities to be hit in a depression or any kind of recession. When it recovers or begins to recover, the other elements in the economy follow suit and recover, too. I refer now to the adverse trend in the balance of overseas payments. The present situation is an unhappy one and does not look like improving. It is contributed to by factors that are beyond the control of anybody, such as factors connected with the drought. Nevertheless, the adverse trend of those factors combines with the imposition of higher taxation to bring about a clear slowing down in the Australian economy. This increased taxation on individuals - I confine this comment to that aspect - would not have been- necessary if the Government had properly addressed its mind to the recommendations of the Ligertwood Committee much sooner than it did.
It is well known to the Senate, but I repeat it for the record, that the report of the Ligertwood Committee was in the hands of the Government in June 1961. The Government announced on 17th August 1961 that the recommendations of the Committee to put an end to tax avoidance which, according to the Committee, had been running at the rate of £14 million a year, would be accepted and that the legislation which would be introduced to deal with the matter would operate from 17th August 1961. It is true that this matter was most complex, but it is completely wrong that the Government should have taken more than three years to present legislation to the Parliament to put an end to losses to revenue which, at that time, were running at the rate of £14 million a year.
It took the Government until October 1964 to introduce the legislation, which was passed in November 1964. However, the provisions of the legislation were not made retrospective to 17th August 1961, as the Treasurer had indicated they would be. Having regard to the normal growth of the
Australian economy, 1 believe the loss of revenue, which was estimated by the Ligertwood Committee in 1961 to be £14 million a year, has increased in the intervening years. I can fairly make the point that as the new legislation to close the gaps which were discovered will largely not be operative upon incomes until 1st July of this year and will apply to income earned in this current financial year, another year will elapse in which there will be a further loss of revenue. In other words, it will be something like four years before the action taken to stop up the gaps will be operative.
Had the Government earlier collected the amounts that have been avoided, had the Government earlier closed the avenues for avoidance and evasion of tax, as the Committee had recommended and as the Government is now trying to do, there would have been no need to impose this additional burden of £17 i million upon the individual taxpayers of Australia. I point out that companies have not been touched by these taxation proposals. The whole of the taxationproposals, apart from, shall I say, the punitive ones which relate to three special categories of income earners, impact upon the spending capacity of the individuals of Australia. Whilst, in the whole scheme of things, the taxation on individuals is not unduly high, the difficulty is that the increase now proposed will set up a cycle. It will feed on itself and grow in the way we have seen inflation grow in Australia in relatively recent years.
I have addressed myself briefly to the Bill only to make those points. We oppose the Bill because the increased taxation on individuals forms part of a general taxation policy to which, over the years, we have expressed our opposition.
.- The opposition offered to this Bill by the Australian Labour Party presents to the Senate now the possibility of a most important vote. I remind the Senate that the Bill we are considering is designed to approve the rates of taxation that should apply to the financial year that commenced on 1st July 1965. Senator McKenna has announced on behalf of the Opposition that he opposes the Bill because the schedule of rates of tax in it involves an increase of some 21 per cent, on individual incomes, and he has referred to various aspects of the economy that he claims justify that position. I made it quite clear in the Budget debate that I thought that those proposals were sound in the circumstances that existed with the increased needs of defence, and I do not resile from that position at all. But for another reason, which to me is of first importance, I do oppose the Bill, and I shall take the course of opposing it because I can foresee, from what was embedded in the speech of the Leader of the Opposition, that I will have no support for individual requests by which I wish to have this schedule put in order.
I have made plain that in the Income Tax Assessment Bill which we discussed all day and half the night on Tuesday are embedded principles which are totally unacceptable to me and destructive of any principle that I can support iri public life or elsewhere. Embedded in the legislation are discretionary powers conferred oh the Commissioner of Taxation - I shall not go through the whole of the argument again - and he is required by law to exercise his authority secretly. He is an officer whose primary function and duty are to gain revenue and, therefore - I say this in no offensive sense but in the proper sense - he is an officer biased in favour of revenue. He is a functionary whose duty is not appropriate for the examination of superannuation funds, partnership deeds, or family trusts. When I find that the adjudication upon fields of family income, so personal to the individual as those branches of income are, is committed to the decision, in his discretion, of an official of that nature, I can never submit a penny of a taxpayer’s income to a decision of that order.
If there were a tribunal, even though an administrative tribunal, which consisted of more than one person, exercised its authority at the request of any party in public, was subject to some rule of law and was not guided solely by an individual discretion, I would have another view, as I indicated in relation to another administrative tribunal during the debate on the Trade Practices Bill last night. Under the Constitution, this chamber has no authority to amend a rates bill; it has authority only to request amendments. That distinction between authority to amend and authority to request amendments is fine. Senator McKenna, in 1951, with the assent of the Liberal Attorney-General, sought to obliterate the distinction - unsuccessfully, I am pleased to say. But I want to make it clear that a rates bill of this description is one which, within the constitutional concept of the Senate, it is the right of the Senate to reject. That is a right that should not be exercised lightly or irresponsibly. I will contribute to that course on this occasion with my vote, only for the purpose of again seeking from the Government the elimination from this Bill of the provisions which seek to impose for the first time - subject to the totally unacceptable discretion of the Commissioner to which I have referred - ‘taxation at the rate of 10s. in the £1 on the income of superannuation funds, partnerships and trusts. I refer to the provisions of the Fourth Schedule, where, for the first time, a tax of one-half of the taxable income of the person is imposed for the purposes of partnerships; to the provisions of the Sixth Schedule, where, for the purposes of family trusts, under section 99a the rate of taxation is 50 per cent.; and to the provisions of the Seventh Schedule, where, for the purposes of superannuation funds, the rate of taxation is 50 per cent.
If this Bill is rejected by the Senate it is capable of ready remedy by the deferment of those three items. If that course is taken, it will remove the only objection that I have to the Bill. It will be seen, therefore, that the Australian Labour Party has announced opposition to the Bill for reasons that are unacceptable to me and has announced approval of the Bill because of items to which I object. Notwithstanding that rather curious situation, I am in the position that my whole public life is staked upon the view that I will not vote for this type of legislation in any circumstances. I do not think it is necessary for me to refer further to that. I want to enumerate, for the purposes of the record, the discretions that are committed to the Commissioner of Taxation as means of modifying this tax of 10s. in the *1. With regard to partnerships, the discretion is expressed in these terms -
Where the Commissioner is of the opinion that, by reason of special circumstances, it would be unreasonable that this section should apply to any income, this section does not apply to that income.
That is the section that adumbrates the Schedule, to which I offer opposition, which applies a tax of 10s. in the £1 tax to certain types of partnership income. As to trusts, the discretion is expressed in these terms -
This section does not apply in relation to a trust estate … in relation to a year of income if the Commissioner is of the opinion that it would be unreasonable that this section should apply in relation to that trust estate in relation to that year of income.
That is a discretion which may vary from year to year. The tax referred to in section 99A of the Income Tax Assessment Act is now sought to be imposed under the Sixth Schedule to this Bill. With regard to employees’ funds, it is provided that if, by reason of special circumstances, the Commissioner is satisfied upon the application of the trustee that it would, by reason of special circumstances, be unreasonable for the section to have effect, then the Commissioner shall allow the section to have effect as if he were satisfied. I read that section in my speech on the second, reading. I consider the Commissioner of Taxation a completely inappropriate person to have discretions of that order and, subject to those objectionable discretions, to impose a confiscatory tax of 10s. in the £1 on partnerships, family trusts and superannuation funds.
– 1 rise to support the Bill and offer a few statistics to the Senate to. indicate that what the Government proposes in this Bill is not unreasonable in the light of comparable provisions in other countries of the Commonwealth of Nations. The Leader of the Opposition (Senator McKenna) said that the Australian Labour Party would oppose the Bill because it provides for an increase of 24 per cent, in income tax. Then, to make his argument a little more forceful, the Leader of the Opposition referred to the rise in taxation on cigarettes, beer and other goods. Obviously, the way to beat the rise in the tax on cigarettes and beer is to cut down on smoking and drinking. So really the additional tax on cigarettes and beer is simply a self inflicted wound.
– Beer is a necessity.
– According to one of the honorable senators of the Democratic Labour Party beer is a necessity. Possibly he could cut down on other things. The additional 2½ per cent, on income tax is not unreasonable in the light of Australia’s present position.
Might I remind the Senate of some of the additional charges that have been imposed upon the nation this year. For example, £385 million has been allotted to defence, an increase of 27 per cent. The largest item in the Budget is £550 million for the States representing an increase of 12½ per cent. Social services will cost £465 million this year, an increase of £20 million. This is apart from the additional commitments for Territories and development, so it is obvious that we have to face a rise in taxation. The increase of 2½ per cent, in income tax is quite moderate in relation to the additional expenditure of the Commonwealth Government. To support my argument, I shall quote comparable rates of taxation paid in Australia, the United Kingdom and New Zealand. First, let us compare the taxation paid in those three countries by a taxpayer without dependants. The tax paid by such a person on income from personal exertion would be -
– Are the rates in sterling?
– They are expressed in the relevant currency of each country. Let us now take the the case of a taxpayer with a wife and one child over 1 1 and under 16 years of age. In Australia, tax of £65 is payable on a taxable income of £1,000; in the United Kingdom £134; and in New Zealand £107. On taxable income of £1,500, tax of £169 is payable in Australia; in the United Kingdom £294; and in New Zealand £225. Honorable senators will see from the figures I have cited that even after Australia’s income tax rates have been increased by 2½ per cent., in many cases the tax payable is only half the amount payable in the United Kingdom, and is well below the amount payable in New Zealand. The main reason why the Labour Party is opposing this measure is not valid, in the light of the added responsibility of the Treasurer to find money for greatly increased expenditure. The comparisons I have drawn between taxation payable in Australia, the United
Kingdom and New Zealand show that the rates applicable in Australia are not unreasonable.
I refer now to Senator Wright’s criticism of the Bill. Obviously we are all aware of the honorable senator’s attitude towards the assessment provisions of taxation law in respect of trusts, partnerships and superannuation funds. He is really objecting to the penal rate; that is the rate which the Commissioner is entitled to’ apply if he considers that the exemptions or lower rates are not appropriate to the particular taxpayer. A penal rate is a penal rate. If you do not comply with the law as Parliament spells it out, you must pay the penal rate. In this case, Parliament has spelt out the law by giving a discretion to the Commissioner. It has been explained to us and we have agreed that the correct way to tax superannuation funds has been provided in the legislation. The same is true of certain income from trusts, and so on. Parliament has agreed to that method of assessment and I think that a penalty of 10s. in the £1 to be paid by taxpayers or groups that are not prepared to comply with the law as directed by Parliament is not unreasonable. I wholeheartedly support the Government on this Bill, which raises in a modest way the rates of income tax and allows for the imposition of a penal tax. I shall not vote for the amendment proposed by the Opposition, nor for any amendment submitted by Senator Wright.
That the Bill be now read a second time.
The Senate divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority . . . . 1
Question so resolved in the negative.
– -On behalf of the Public Accounts Committee, I present the following reports -
Seventy-sixth Report - Treasury Minute on the Sixty-fourth Report, together with summaries of that Report;
Seventy-seventh Report - Treasury Regulation 53.
I ask for leave to make a short statement.
– There being no objection, leave is granted.
– The seventysixth report relates to a Treasury minute arising from your Committee’s sixty-fourth report which dealt with expenditure from the Consolidated Revenue Fund for 1962-63. Over the years, your Committee has made a practice of submitting Treasury minutes to the Parliament either as part of subject reports going forward in the normal process or, particularly in more recent years, in reports relating specifically to groups of Treasury minutes. However, the Treasury minute relating to the sixty-fourth report contains an expression by the Department of the Treasury of important principles affecting the financial responsibilities of the Executive and the Parliament and for this reason we believe that its significance extends beyond the scope of your Committee’s sixty-fourth report and should be reported upon separately.
Your Committee desires to invite particular attention to the re-enunciation of fundamental principles relating to the formulation of Estimates of Expenditure as set out under the general heading in the
Treasury minute. This statement fs consistent with your Committee’s observations relating to estimating procedures in its seventy-fourth and seventy-fifth reports which were presented to the Parliament yesterday, as well as in previous reports which, over the years, have related to inquiries into departmental expenditure.
Your Committee notes the view expressed by the Department of the Treasury that any trend towards conservatism in the original Estimates and towards the encouragement of the use of Additional Estimates could lead to undesirable results. Your Committee accepts without qualification, however, that its responsibility to the Parliament is to strive constantly to refine the Estimates which are presented to the Parliament and to achieve the maximum possible degree of realism in respect of the provision of funds. If, in the performance of this task, departments are influenced to exercise more discretion in compiling their initial estimates, your Committee believes that any resultant effects upon financial policy represent the wishes of the Parliament. It believes that, in such circumstances, the Executive would respect those wishes and would make appropriate adjustments to its procedure relating to calculations of expenditure and revenue to provide for any appreciable trend towards a higher demand for funds through the Additional Estimates.
The seventy-seventh report relates to Treasury regulation S3. This regulation is one of several provisions contained in part III of the Treasury regulations under the Audit Act, concerned with the ordering of supplies. The regulation enunciates the basic principle of public disclosure of all Commonwealth contracts arranged. Your Committee became aware of differences of interpretation and practice between Commonwealth Departments regarding the amount of detail relating to contracts let which they were prepared to disclose to inquirers. Accordingly, after preliminary discussion with representatives of the De- .partment of the Treasury and the Audit Office, your Committee conducted a series of public hearings in May and October 1965 in which the representatives of sixteen departments were examined. The evidence submitted to your Committee showed that, during 1961 the AttorneyGeneral’s Department had informed the Treasury that there was an inconsistency between regulation 53 and Treasury Instruction 13/ 28a. In addition, it was learned that there were several unsatisfactory features of the regulation which lead your Committee to the view that proper care had not been exercised in framing it.
Your Committee considers that Treasury regulation 53 and its attendant instructions should be reframed without delay, that in such a process the regulation should specify clearly the details of contracts arranged that are to be included in the Commonwealth “ Gazette “ and that a uniform method of presentation of such details should be adopted in the relevant “Gazette” notices. Your Committee considers also that the reframed regulation should provide that the disclosure’ of unit prices should be confined to disclosure subsequent to gazettal, that provision for subsequent disclosure of details other than unit prices should be provided and that this should be framed in such a way as to permit departments to inform an unsuccessful tenderer of the reasons for the non-acceptance of its tender, in terms of its own insufficiency, but not in terms of the merits of the successful tender.
Your Committee further considers that; when reframed, regulation 53 should include a provision to exempt departments from the requirement to gazette or disclose details subsequently, when it is in the public interest that such details should not be revealed and that the Department of the Treasury should consult the Department of Works regarding the form in which that Department should be exempted from the necessity to disclose, subsequent to gazettal, details of rates in schedule of rates contracts for works and services.
Finally, and more generally, your Committee is of the opinion that the Department of the Treasury, when proposing any amendments to either its regulations or instructions, should first .ascertain from the Attorney-General’s Department that such amendments will not result in inconsistency between the regulations and the instructions. I commend the reports to honorable senators.
Ordered that the reports be printed.
Consideration resumed from 8th December (vide page 2166).
Clauses 1 to 3 agreed to.
Clause 4 (Restriction of application of Australian Industries Preservation Act).
– In regard to this clause, the Opposition takes the stand that the Australian Industries Preservation Act should not be repealed. The clause is aimed at repealing that Act, except to the extent that it deals with overseas shipping. The clause goes on to deal with the repeal of section 6 of the Seat of Government (Administration) Act 1910-1963 and with the repeal of various sections of the Northern Territory (Administration) Act, which were complementary to the Australian Industries Preservation Act and which had the effect of applying the provisions of that Act in those two Territories.
Our stand on this clause illustrates our approach to the whole Bill. We take the view that the type of provision which is contained in the Australian Industries Preservation Act is more desirable than the type of provision which is incorporated in this Bill. The Australian Industries Preservation Act was framed along the lines of the famous Sherman act in the United States of America. Its aim is to deal directly with monopolies. The principal part of it is headed “ Repression of Monopolies “. There are also anti-dumping provisions. The aim of the Act is to prevent actions in restraint of interstate trade and commerce. It is also directed towards the prohibition of unfair competition which is aimed at destroying Australian industries which are operating in the public interest.
It is the view of the. Australian Labour Party that through acts such the Australian Industries Preservation Act one can get certainty. It strikes at those activities which are contrary to the public interest. It does not strike at the small businessman who is operating in a reasonable way. The element of public detriment has to be considered. It is the type of legislation which hammers down the large groups and combinations, to which I referred in my speech in the second reading debate and which may be characterised as commercial conspirators.
The small businessman has nothing to fear. Persons who are carrying on a trade association which is set up to provide legitimate and orderly marketing arrangements and which can be justified as being in the public interest, have nothing to fear. The Australian Industries Preservation Act is aimed at the groups which are engaged in unfair monopolies and whose operations are clearly detrimental to the public interest. The legislation leaves aside the small business people. The small business people and the associations which are engaged in legitimate marketing arrangements are not faced with the problem of having to get all sorts of economic and legal assistance in order to go before the Commissioner or the Trade Practices Tribunal. They are clearly protected. They are not affected by the legislation except where they are doing something which is contrary to the provisions set out clearly in the legislation.
We have the experience of decisions in the United States, which set out the limits of monopolisation. From every point of view, this kind of legislation is desirable because it means law and not discretion. Persons can find out where they stand. They can choose whether or not to break the law. They do not have to go through all the paper warfare which is associated with registration, applications to tribunals, lengthy hearings and so on. They know where they stand. Under the Australian Industries Preservation Act it is quite clear that one must keep away from injuring the public through monopolisation. If one does this one is clear of the law. If a person chooses to break the law, he is immediately subject to the heavy penalties, both legal and civil, which are involved in breaches of the legislation. For that reason the Opposition will oppose this clause in its entirety.
.- I am amazed to think that the Opposition is adopting this attitude. The’ Australian Industries Preservation Act has been recognised as a piece of statute law which it has not been practicable to invoke for SO years. I think that no action was taken under it in the period between 1915 and 1962 or 1963. On the basis that the Act was incapable of effective operation, the Constitutional Review Committee recommended that the Constitution be amended so as to provide this Parliament with a specific head of power in order to deal with restrictive trade practices. As was pointed out in the second reading debate last night, the recommendation of that Committee on this subject was the unanimous recommendation of the three parties represented on that Committee - the three major parties in the Parliament.
One or two cases have been advanced in the High Court since Sir Garfield Barwick originally put forward the restrictive trade practices proposals and while we have been waiting for a constitutional referendum to be held to determine what powers the Constitution gave to the Parliament to deal effectively with restrictive trade practices. I am amazed to think that the Opposition, which claims that it is really devoted to the idea that there should be some effective law in the country to repress restrictive trade practices, now wishes to cling to an old statute that has proved to be unworkable for half a century. More especially do I find it beyond my understanding because I would have thought that, however deficient this measure may be compared with the teeth the Opposition wish to put in it - as to that I made my own general observations last night - it was infinitely preferable, from the point of view of regulating and repressing restrictive trade practices that are against the public interest, to have a measure of this description. The basic principles of this measure are to be found in the English legislation of 1956. It is better to do this than to go back to the idea of police prosecution and criminal punishment for these things. This sort of legislation is just as inapt and inappropriate for this type of wrongdoing as it was in the 1700’s to prescribe capital punishment for the burning of a haystack of a value of more than £10. Juries would not convict, and resort was had to all sorts of contrivances in order to justify refusal to impose inappropriate sanctions in respect of a particular wrongdoing. I have not given a very good analogy, but that is the type of idea that I want to convey. I think the inappropriateness of the remedy - this criminal punishment by a fine or imprisonment - is probably more than half the reason why the American legislation is not working with effect. It is being made the subject matter of administration but one takes leave to query its effectiveness. Therefore, I oppose the view expressed - by
Senator Murphy because I feel it quite proper that the Australian Industries Preservation Act should be removed from the Statute Book.
I want to add, though, that in the Minister’s second reading speech there was one sentence on this subject which I regretted. It is the only sentence in his speech that I did regret. For those assisting the Minister I make the comment that it is to be implied in that sentence referring to the Australian Industries Preservation Act that we are to preserve that Act in relation to ocean going shipping. We know, of course, that a special section was introduced into the Act by the conjoint efforts of the Prime Minister of the day Mr. S. M. Bruce, now Lord Bruce, and his successor, Mr. Scullin. Actually, Mr. Scullin came into office after an election that intervened during the passage of the measure. The provision which affected ocean going shipping in that Bill gave an immunity to the owners of ocean going ships and provided for the establishment of what we call the Australian Overseas Transport Association with external shippers on the one side and the exporters and importers of Australia on the other side. That section gave to the owners of ocean going ships immunity from the Australian Industries Preservation Act so that, in effect, the provisions of that Act do not apply to the organisation that was set up in relation to ocean going shipping under the section to which I have referred.
.- I want to speak in support of the position put by Senator Murphy. The Opposition opposes this clause because it’ does not think that the occasion of the passage of this legislation should be allowed to go by without the Committee being reminded of what it is that is being repealed. It is the whole system that is based upon the Australian - Industries Preservation Act, which Senator Wright says has been a dead letter. I agreed that it has been regarded as a dead letter, but it so happens that early in 1964 the High Court of Australia indicated that this Act was by no means a dead letter. It is held in the case to which I referred last night of Redfern versus the Dunlop Rubber Company that section 4 - that is the section denning the offences under that Act - is a valid exercise of the power under section 51 (1.) of the Commonwealth Constitution to make laws with respect to trade and commerce with other countries and among the States. The High Court also held that section 11 (1.) which is the treble damages section is a valid means of enforcing and inducing compliance with Commonwealth law. The point we are making is that before abandoning such provisions as exist under the Industries Preservation Act the Government should take the High Court decision not so much as a signal to proceed to abandon the legislation but as a signal to give some further consideration to it.
It has been pointed out by experts such as Professor Richardson to whom I referred last night and who is the Dean of the Faculty of Law at the Australian National University and who was associated in the early days with the work being done on legislation on restrictive practices as a senior officer of the Attorney-General’s Department that a few amendments to the Australian Industries Preservation Act, such as the inclusion of trading associations could produce quite dramatic results. His views may or may not be the subject of universal agreement. It may be thought, and I think we concede, that the scheme contemplated under this Bill is different in its basic approach. But we have taken the occasion to oppose the repeal of the Australian Industries Preservation Act because we ought to be conscious of what the Government is abandoning. We are abandoning except in the case of collusive bidding and collusive tendering, any criminal sanctions under this Act. We are abandoning treble damages and, with it, the right of the. individual to approach the tribunal for damages except in the very limited sense granted by clause 83 of the Bill. Clause 88 provides in effect that damages shall be limited to damages suffered as the result of the contravention of any cease and desist order of the Trade Practices Tribunal. So, I support the view that Senator Murphy put to the Committee, and insist that we should not be a party to throwing overboard such strength as can be obtained from the existing Australian Industries Preservation Act.
– I would like to make several more observations on this point. One is that the
Opposition takes the view that there should be the provision for treble damages. I draw the attention of the Committee to a proposed amendment which has been circulated on my behalf which would provide that contravention of any of the provisions of Part IX would involve liability to suit for treble damages for the loss or damage. PartIX is the collusive tendering and collusive bidding section. The other matter is this: While we speak of the repeal in clause 4 of the provisions of the Australian Industries Preservation Act, it is not strictly a repeal because it deals with the construction of the references in such a way as to restrict them to overseas shipping only. But, in substance, it is a repeal of those provisions as far as their future operation is concerned, leaving only liability to action in respect of the past.
Senator Wright made some remarks in support of this clause. He said that the Australian Industries Preservation Act had been a dead letter since the Coal Vend case. The point on which the decision in that case was upset by the Privy Council was dealt with shortly afterwards by way of amendment. The Act was amended many years ago, within a short period after the Coal Vend case.
– I am obliged to the honorable senator for that reminder. But the substance of the Act was removed by a previous decision on its validity in respect of intrastate trade, was it not?
– The view was taken that the Act would not have a wide scope because it would not be applicable to intrastate trade and commerce. The present position is that the decisions of the High Court have meant that, although some activity may deal with intrastate trade, it may be caught by the Act if it is in relation to interstate trade and commerce. So, unless the activity is a purely intrastate one, it may come within the scope of the Act. Of course, with the extension of modern trade and commerce, we are breaking through the State boundaries more and more. The growth of monopoly in this country has meant that many more activities have a relationship to interstate trade and commerce, although they may directly be intrastate activities. It is apparent that measures such as the Australian Industries Preservation Act are becoming more and more effective with every year that passes. We do not want to see the wheat thrown away for the chaff. Therefore, we persist in our opposition to this clause.
– I wish to answer a question raised by Senator Wright in respect of the statement in my second reading speech about shipping. I am advised that section 7c of the Australian Industries Preservation Act provides that contracts between shipowners and shippers for exclusive dealing arrangements are exempt from the other provisions of the Act if they are approved by the Australian Oversea Transport Association, which consists of shipowners and shippers. However, the Association is concerned only with the shipping conference operating between Australia and Europe. Other conferences, particularly the one operating in respect of shipping between Australia and Japan, are subject to the provisions of the Act.
This Bill will leave the present’ situation unchanged for the time being. As I said in my second reading speech, we are giving consideration to the precise provisions that are needed to deal specifically with trade practices that arise in relation to ocean shipping. We have not had time to determine finally what should be done. So, such provisions are not introduced as an integral part of this Bill. As this clause indicates, such practices will continue to be dealt with under the Australian Industries Preservation Act.
Question put -
That the clause stand as printed.
The Committee divided. (The Temporary Chairman - Senator K. A. Laught.)
Majority . . . . -
Question so resolved in the negative.
Clause 5 agreed to.
Clause 6 (Crown not bound).
.- We are now considering whether the Crown, is bound by the provisions of this legislation. A great deal of case law has been built up in relation to Crown corporations. Difficult questions arise as to whether they come within the protection of or under the umbrella of the Crown. The nature of the undertakings has to be ascertained. I have not given much thought to this matter. I raise it for comment by honorable senators, for which I would be obliged. I have no motion to put to the Committee. Let me take the case of Trans-Australia Airlines. Is not T.A.A. bound by this legislation in regard to restrictive trade practices? There is a clause later in the Bill which, states that arrangements and agreements made pursuant to any Act of the Commonwealth or of a State and, I think, arrangements made by local government bodies, are outside the scope of the legislation. The clause to which I have referred is clause 38 (b) which states -
In determining whether an agreement is an examinable agreement, regard shall not be had -
There is another clause which refers to a Commonwealth or a State Act. Although it does not directly arise in a discussion of clause 6, I have drawn attention to clause 38 (b) because I thought it might provide the answer to my doubt.
The point I am raising is that the simple expression which is used in so many statutes - “ this section shall not bind the Crown “ has particular application in legislation directly addressed to business in an era when Crown corporations have been established for the purpose of carrying on business undertakings. Several corporations could be cited which have been created by Commonwealth statutes. I have mentioned T.A.A. as one. We know that there is an agreement between T.A.A., AnsettA.N.A. and the Commonwealth Government which has been specifically approved by this Parliament. I should think that agreement, with that approval, would never come under the scrutiny of this legislation. I have cited T.A.A. as an example of a trading corporation which may be so much a Crown corporation as to come under the umbrella or the protection of the Crown. I raise the question as to whether it is proper to exempt from the provisions of the Bill Crown corporations created either by the Commonwealth or the States and still leave the Bill sufficiently effective.
– I am advised that, in the view of the Department, bodies such as Trans-Australia Airlines would not be given an exemption by this Clause. The authority cited to me is, I think, the Launceston hydro-electric case, in which the High Court made it clear that the protection given to Crown corporations would not be extended to business undertakings. The protection would be in a very limited field.
Sitting suspended from 12.45 to 2.15 p.m.
.- Prior to the suspension of the sitting, reference had been made to the case of Hydro-electric Commission v. Launceston City Council. I happened to argue that case before the High Court and I have a recollection of it, but I have not had a chance to consult the report since the reference was made this morning. I want only to utter the warning that I think it will be found that the case was concerned with property of the Crown and followed the viewpoint of the Chief Justice, Sir Owen Dixon, that property of the Crown was not synonomous with property of the Government which was property of the Crown. But I am not concerned to argue this, nor do I wish the Minister to be concerned immediately about this question. I felt it my duty, though, to raise the question because in the interests of clarity and also from the point of view of definition of the application of the legislation, consideration ought to be given to the type of Crown corporation, if any, to which this provision applies and which, therefore, is exempted from the application of the legislation.
– I feel that I should say now, on behalf of Opposition senators - because it is convenient to do so early - that we realise that there are many problems which arise under this clause and under other clauses. It is not our concern to attempt to polish up this legislation so that it will be perfect, because we think that that is impossible to do. So, the Opposition is not to be taken as agreeing that clauses are in proper form or desirable from the point of view of policy because we do not pay any attention to them from now on.
– Since this matter has been brought up in this chamber and some comment is, therefore, called for, all that I wish to say is that I would agree with Senator Murphy, in general. I doubt whether any bill has ever come before any parliament of which somebody could say: “This is a perfect bill and no clause will ever have to be amended, because it is perfect.” On the matter of the case to which I referred, it may be of significance to honorable senators to hear that at page 662 of the report the High Court did make this observation, which extends beyond mere matters of property -
Both in England and in Australia there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown, unless Parliament has by express provision given it the character of a servant of the Crown.
Clause agreed to.
Clause 7 agreed to.
Clause 8 (Complementary State Legislation).
– I direct the Committee’s attention, for the purposes of comment, to sub-clause (6.). Sub-clause (1.) states -
The purpose of this section is the achievement of the orderly and convenient concurrent operation of this Act and complementary laws of the States, by means of co-operation between the Commonwealth and the States.
To my way of thinking, sub-clause (6.) brings an unusual degree of happiness to the unfortunate victim of our legislation. It reads -
Where an act or omission of a person is both an offence against this Act and an offence against a complementary State law -
if that person is convicted of the lastmentioned offence, he is not liable to be convicted of the first-mentioned offence; and
it is the intention of the Parliament that, if that person is convicted of the firstmentioned offence, this Act shall operate to the exclusion of so much of that State law as would make that person liable to be convicted of the last-mentioned offence.
From the point of view of the unhappy subject who has to obey the law, I find the idea odd. I thought it was a fundamental principle in our law that no person was to be proceeded against twice for the same offence. It will be noticed that the first exemption from the Commonwealth law applies if he has been convicted under a complementary State Act. Suppose he is acquitted under a complementary State Act. What is then the position? It is a novel position for me that his immunity from Commonwealth conviction depends upon State conviction. I see here some infringement of a fundamental principle that if we have under the State jurisdiction a law creating an offence, and if we have under the Commonwealth jurisdiction a law creating an offence, and either of them is applicable to the same transaction, if a man is proceeded against under the State law and is acquitted, he would earn immunity from both Commonwealth and State law.
– One should say that if he is charged under one he should not be charged under the other.
– No, I went to the stage of conviction.
– The Bill says “ conviction”.
– It states only that if he is convicted under the State law he is not liable to be convicted under the Commonwealth law. I put the viewpoint - not as a final viewpoint but as one worthy of consideration - that if he has been acquitted on a charge under the State law, that should an acquittal for both purposes, if it is the same offence derived from two different jurisdictions.
– Is that the policy followed under the Commonwealth Crimes Act?
– I am not sure. I should be obliged for a reference to that, if it has been dealt with there. I refer to paragraph (b) of sub-clause (6.). It is to me a novel application of section 109 of the Constitution, indicating that it is the intention of this Parliament that if a person is convicted of the Commonwealth offence, then he is precluded from being charged under’ the State Act, as the State Act is rendered null and void - I use that expression loosely - because of its inconsistency with a Commonwealth law. But the inconsistency is not declared until after he is convicted under the Commonwealth law. 1 am sorry to trouble the Minister with matters of this sort, but there are senators in the chamber who can offer assistance in regard to this without my imposing an undue burden on the Minister. The Minister, of course, may also offer decisive assistance on this; I am not implying anything to the contrary; but there are other people in the chamber to whom this, I think, is a matter of interest. An inconsistency arising between Commonwealth and Slate law is declared to be evident only when there has been a conviction in respect of . the. first-mentioned offence, that is, the Commonwealth offence.
– Is not the difficulty that the Commonwealth could hardly prevent the State from proceeding if there were a difference between them?
– I would not think that is the difficulty. Section 109 says that if there is an inconsistency between Commonwealth and State law, then the Commonwealth law is paramount.
– That would mean that the State law would disappear. You are dealing with a situation where the Common wealth and State laws co-exist, not where the State law disappears. Where there was a valid State law, how could the Commonwealth prevent the State from taking action under that valid State law?
– That is the novelty of paragraph (b), I suggest. The intention of inconsistency is declared by paragraph (b) to arise only if a prosecution under Commonwealth law has already succeeded. Up to then a consistency is declared between the two laws. I am only putting before the Committee the view that it is novel to me to find in any Commonwealth statute an expression of the intention that there should be inconsistency with a State law only after the Commonwealth law has been used for a successful prosecution.
– Does not that achieve the very purpose that you are suggesting should be achieved?
– I am not objecting to the purpose of this. I am only seeking to get some reference from the Minister and his advisers, or from elsewhere in the chamber, that will satisfy the disquiet of my mind as to whether this is a proper application of section 109.
– I fully realise that I am a layman entering into an extremely legal field. The position, as I understand it - this may be of some interest to the Senate - is that a man, under this proposal, can be charged under a State law by a State Attorney-General for infringing that State law. If he is not convicted, he cannot subsequently be charged under the Commonwealth law for infringing the Commonwealth law. If he is convicted under the State law he cannot subsequently be charged under the Commonwealth law, and if convicted under the Commonwealth law he cannot be charged under the State law. The situation could arise that an individual is charged under, let us say, a State Act for an infringement of something, which is intrastate; and he proves that it is not interstate but intrastate and for that reason he is acquitted. He offends against the requirement that the Commonwealth Parliament wants to prevent restrictive trade practices. He is acquitted under the State Act because he was not engaged in interstate trade. He subsequently can be charged and convicted under the Commonwealth Act for what he had proved to be intrastate trade. He cannot be convicted under both Acts, but he cannot use some form of charge under one, which is wrong and therefore which allows him to be convicted, in order to enable him to escape the consequences of his action.
– 1 was going to raise another matter under this clause, but if Senator Wright wants to pursue this matter I will allow him to do so.
.- I am obliged to Senator Cohen for his courtesy. I want to make only one comment on what has fallen from the Minister. I would have thought that when you have the conception that you have here - the conception of complementary laws passed by a State and the Commonwealth - in their joint operation those laws are one law. I would have thought that the principle that should apply is that, if in respect of a particular transaction a man has been made the subject of a charge in respect of a particular offence, phrased in the same way in the State Act and in the Commonwealth Act, then an acquittal should earn him immunity from a second prosecution. Suppose there was no doubt as to the constitutional ambit of this legislation; suppose that we had put into the Constitution power for this Parliament to legislate with regard to restrictive trade practices under those circumstances, no dichotomy of trade and commerce, intrastate on the one hand and interstate on the other, would arise. I assume that in that situation there would be a clear intention of the Commonwealth legislation to exclude from the field any inconsistent State legislation. By section 109, the Commonwealth legislation would be paramount and would be, in effect, the only law on the subject. If Mr. Smith was prosecuted under that law and was acquitted, he could not be charged again in respect of the same transaction.
I submit that the same principle should apply here. In this case there is a division of power between two entities, the State and Federal authorities. If, because of this divided jurisdiction, there is a decision to prosecute under the State law in respect of a particular transaction, the man concerned, if he is then convicted, ought not to be subject to further prosecution. It is a fundamental principle of our law that, if he is acquitted, he should not be again charged. We have become altogether too neglectful of fundamental principles like this in this place. One of the foundations of British freedom is the principle that if a man is charged with an offence and a jury acquits him, the police cannot round him up again on the same offence. If, just to satisfy the constitutional position, here, we are going to regard the two laws as complementary, we should regard them as having a joint operation so that, in effect, one law applies to one transaction: I protest against a provision which would permit a person, having been charged under one law and having been acquitted, to be subject to be charged and convicted under the other law.
.- I find it difficult to follow what has been put . by Senator Wright. It seems that this sub-clause is aimed at preventing a person from being subjected to double jeopardy. This is what it sets out to achieve. If anything, it may be thought that the provision goes a little too wide, lt speaks of the act or omission of a person as an offence both against this Act and against the complementary State Act. It might be that the two laws would be aiming at somewhat different things and that the exemption that is given would be far too wide. Be that as it may, unless we have complete clarity we ought to be leaning in favour of the citizen. This sub-clause is directed at absolving the citizen or the corporation as the case may be, from double jeopardy. Look at how it operates. It states -
Where an act or omission of a person is both an offence against this Act and an offence against a complementary State law- .
As at that point, we have the position that the complementary State law is, of necessity, a valid one. So there is no question of inconsistency under section 109 up to that point. The sub-clause continues -
In other words section 109 is allowed to operate to the extent that two acts are said to be inconsistent so that a conviction under a State act is not to be permitted after a conviction under the Commonwealth Act where the act or omission gives rise to both offences.
– Senator Cavanagh’s point is the point that I raised.
– It seems to me that the Bill is drafted to use the whole of the Commonwealth power to protect a person. In other words, it provides that if a person is convicted under a Federal enactment, he cannot be proceeded against under the State enactment because it does not even exist in an operative sense. It is not allowed to operate. That much is clear certainly where there is a conviction. Senator Cavanagh has raised the point: What is the position if there is acquittal of the person? It’ is true that that is not covered and it might be for the reason I have stated - the net has been cast so wide. Perhaps the net was cast so wide that it deals merely with the act or omission of the person giving rise to both offences.
– Is there not something lacking? You would not agree that there should be two trials?
– I would say where the offences are identical, there should not be two trials. When a person hai been subjected to a trial Aor doing certain things and the Tribunal has found that he is not guilty of those things, he should not be subjected to another trial. But the practical position is this: If the Crown has proceeded against him and said he is guilty of certain offences and the Tribunal declares that he is not guilty, it would be futile to proceed against him in another jurisdiction Once he had been acquitted. In fact, it might be said that so far as the Crown is concerned, there are matters such as issue estoppel which would automatically lead to his subsequent acquittal. The purpose is to save him from double penalties. There is no real problem about acquittal. If he is acquitted when the Crown proceeds against him, he has the advantage of estoppel if one takes it that’ it is the Crown - whether Commonwealth or State - that proceeds against him on criminal grounds. He is not in real jeopardy if it is the same offence.
– What if the court says that he ls not guilty under this law but he is guilty under common law?
– Suppose a person were proceeded against in New South Wales and it was found that the offence was not committed against the law of New South Wales but that activity had occurred over the border or in some way which was exclusively within the province of the Commonwealth law. The State law would not operate in any circumstances to touch such a person. But if the person were still guilty of activities which constituted an offence under Federal law, you would not say that he should be acquitted because he had been found to be outside the net of State law which had no application to him although he was obviously guilty against an offence under Federal law. He might have been submitted to trial according to a complementary State law which was not applicable to him. Suppose the law was not applicable to him because he was outside the jurisdiction of the State. Why should he escape a charge under an applicable and valid Federal law?
There may be some other aspect of it, which escapes me at the moment, involving injustice to the citizen. I agree that the principle of double jeopardy is one of the greatest principles of our law. Let us be clear on that. No-one on the Opposition side would suggest that there should be any eating away of that great principle. All we are concerned with is to see that there is no infraction of that great principle in this provision. For the moment, I am not satisfied that there is.
.- One matter puzzles me and it arises out of the fact that the Victorian Parliament has passed legislation to make collusive bidding and collusive tendering offences. I have a copy of the Victorian Bill that was presented. 1 have not the final form in which the Act was passed; but it seems to me that under the Victorian Act, the specification of the offences is the same as in this Bill. 1 refer to the definition of what constitutes collusive bidding and what constitutes collusive tendering. In a broad way, th. Victorian measure seems to over the same ground, but on a cursory reading of the Act, the defences that are open to a person charged under the Victorian Act are stated in somewhat different language. lt seems to me there is at least a possibility that some defences may be open under the Victorian Act which are not open under clauses 85 and 86 of the Bill before us. Vice versa, it appears that there may be defences open under the Commonwealth legislation which would not be open to a person charged on the same facts under the Victorian legislation.
I throw this into the discussion because it seems to me to complicate the position that we have been contemplating of cases where, in fact, the laws are identical and the act or offence is identical. But as I have said, on a superficial reading of the Victorian Act it seems that there is some variation because clause 8 (6.) deals with a situation where the act or omission of a person is an offence against the provisions both of this Bill and of the complementary State law. Probably, we would be dealing with a person who was not guilty of an offence against one or other of the laws if a particular defence was open to him which was not open to him under Commonwealth or State law as the case might be. That would suggest that unless the complementary State legislation is completely identical with the Commonwealth law, the terms of this clause would have, to say the least, a very narrow operation and at worst could cause a great deal of confusion.
I can appreciate the view that the Bill ought to contain something about the situation in which there has been a prior acquittal in the case of a person charged under one or other of the Acts where the specification of the offence is identical. I have raised another question really and that is the possibility of confusion where you have acts that on the face of them are almost identical but some defence, perhaps of a minor or additional character, is open under one law and is not open under the “other.
Senator GORTON (Victoria- Minister
Cohen, I am advised that it is a matter for the courts to determine whether the Victorian act or a similar act is inconsistent with the Commonwealth act and, if it is, whether the Commonwealth act does or does not prevail. The courts will decide which is the prevailing act.
– Senator Cohen raised a point which I would very much like to have set aside for subsequent reference, because I am trying to present simply a fundamental principle of British justice upon which I think all honorable senators would agree. However, before leaving Senator Cohen’s point, I wish to comment on what fell from the Minister. Ordinarily, of course, an interpretation of inconsistency would be a matter for the courts. I have already read out sub-clause (1.) of clause (8) and I will not weary the Senate by rereading it.
I direct honorable senators’ attention to sub-clause (2.) of clause (8) which provides that where the Governor-General is satisfied that a State act is complementary to this Bill - not in identical terms but in substance - he makes a decision to that effect. Then he may by proclamation declare that the State act is complementary to this Bill. So that for the purpose of identifying the State statute that is attracted to the provision of this Bill, the decision is made, not by a court but by the Governor-General. That is a very different proposition.
I also ask the Committee to direct its attention to sub-clause (4.), which states -
Before making a Proclamation under this section, the Governor-General may make such arrangements as he considers necessary with the Governor of the State concerned.
The term “ arrangements “ is a very wide one. I do not have clearly in mind the sort of thing that is intended. I wonder whether that power gives any right to make undertakings as to the manner of administration of the Commonwealth act to fit in with a purpose of the State act in order to get agreement. I pass by Senator Cohen’s point with that reference.
Sub-clause (6.) applies only where an act or omission is both an . offence against the Federal act and the State act. It has to be an identical act or omission, and that act. or omission must be an offence within the terms of the Commonwealth and the State acts. There has to be an identity of transaction and of criminal definition of fault. In those circumstances, but for the divided jurisdictions - Federal and State - we would have no such provision. We would have either a State law or a Federal law dealing with the matter. I invite honorable senators to take, for example, the criminal code of any State. The Tasmanian criminal code is copied from the Queensland code, which was drafted by Sir Samuel Griffith. It is not to be regarded as a local provincial statute. It provides that there shall not be two trials for the same offence. It does not provide that where a man is convicted on a first trial he shall not be liable to conviction thereafter. It is not true to say, as Senator Murphy said, that he would never be tried again if he were acquitted. It is a jury trial, and we all know the different results that come out of a second trial as against the first.
– No. I was thinking of the issue of estoppel.
– Yes. But for our purposes here, in substance, the principle is the same as in Tasmania - that no person shall be prosecuted twice for the same offence, lt is clearly set out in all the criminal codes. It is not simply that if a person is convicted there shall be no second trial. It is that if a person is acquitted or convicted, there shall be no second trial. 1 would like to bring to the Committee’s attention the provision that prevents a person being put upon trial twice for the Fame offence, provided of course that his first trial does not go on for want of jurisdiction or something of that sort. I cannot locate the reference that I want quickly and I will not take the time of the Committee to search for it. However, I think- it is a very fundamental principle which has not been given application in this clause. I think the clause should be so expressed as to provide that if a person has been convicted or acquitted of an offence under the Bill, by hypothesis it is the one act or the one omission constituting the same offence under Federal or State law. 1 believe that it would be a good thing for this clause to be postponed so as to enable the matter to be considered deliberately. I do not want to cause inconvenience, but I do not want to permit injustice. I suggest that the clause be postponed so that the Minister can give us his deliberate viewpoint after taking a little time for consideration. I make that suggestion respectfully.
– I would not be prepared willingly to postpone this clause. I think it should be passed. Insofar as I understood the comments made by Senator Murphy on this matter, I agree with him. What does this clause do? If offers protection. It provides that a man who is convicted under one act may not be proceeded against under the other act. That is all it does. It offers that protection. It does not say that he is to be proceeded against. It says that he will not be proceeded against if he has been convicted under one act or the other.
Senator Wright raised a point on the question raised originally by Senator Cohen as to what the Governor-General may do. I think every honorable senator will realise that the Governor-General acts only on the advice of the Commonwealth Government, and a State Governor acts only on the advice of a State Government. The Governor-General, acting on advice, may well want to make arrangements between two governments on all sorts of matters concerned with staff or anything of that nature. As to proclaiming a State act complementary to a Commonwealth act, nobody here would seriously believe that the Governor-General would proclaim a State act complementary to a Commonwealth act except on the advice of the Commonwealth Government of the day. The Commonwealth Government would not give such advice unless it believed that the State act was complementary.
Clause agreed to.
Clause 9 (Constitution of Tribunal).
– I wish to inquire whether there is any provision in the Bill to give to the Tribunal the ordinary privilege from actionable defamation over matters associated with the courts, and whether there is any provision that gives the Tribunal immunity from action for damages for anything that is done in the exercise of its jurisdiction under this legislation.
.- I understand that the matter is covered by clause 80.
Clause agreed to.
Clause 10. (2.) A person shall not be appointed as a member other than a presidential member unless he appears to the Governor-General to be qualified for appointment by virtue of his knowledge of, or experience in, industry, commerce or public administration
.- The first point I make is that, so far as I can see, the number of presidential members is not restricted. Secondly, I do not think there is any provision limiting the number of other members. The GovernorGeneral will be able to appoint as members other than presidential members people who appear to have experience in industry, commerce or public administration. That would enable . him to appoint from the Public Service all the members other than the presidential members. That it is anticipated that some will be recruited from the Public Service is indicated by clause 12. There seems to me to be a danger that the Tribunal may well become a branch of the Public Service. I do not think that is intended, and it would be unacceptable to a great section of the community.
Therefore, I suggest that, when we consider clause 18, which deals with the arrangement of the business of the Tribunal as a function of the President, the Minister might consider the inclusion of some provision that will make it clear that of two non-presidential members not more than one shall be recruited from the Public Service. This would ensure that balance on the Tribunal which I think is the purpose of the constitution that has been provided for, namely, a judicial person in the chair and on one side a person who has had experience in industry and on the other side perhaps a person who has had experience in public administration. I hope it will not be thought that I am casting any reflection upon the Public Service. I have paid a tribute here many times to the skill, knowledge and integrity of many officers of the Public Service. I believe it is a well founded view that people whose experience has been confined to public administration should not be put in judgment on mercantile affairs such as those that will come under the jurisdiction of this Tribunal.
– I move -
In sub-clause (2.), after “commerce” insert, “ , economics “.
We take the view that the qualifications have been set too narrowly. There are persons who have a knowledge of, or experience in, economics who could not strictly be said to have a knowledge of, or experience in, industry, commerce or public administration. The qualifications in the British Restrictive Trade Practices Act, on which the provisions in Part II of this Bill are largely based, relate to persons who have a knowledge of, or experience in, industry, commerce or public affairs. The term “ public affairs “ is much wider than the term “ public administration “.
We think that the qualifications should, be extended to embrace such persons as economists, they being persons who by their activities have shown that they have a special talent in relation to such matters as trade practices. Some indication of the desirability of extending the qualifications in this way is to be found in the fact that a great number of the public statements that have been made on the Barwick proposals, upon the Bill that was introduced originally, and upon the amendments that have been made recently, have come from economists . who might well be considered to be outside the strict definition of clause 10(2.). We ask that the qualifications be extended to include at least these persons.
– We are dealing with a Bill which provides for the appointment of a Tribunal to take cognizance of practices in industry, commerce and the public life of this country, and to determine whether those practices are or are not against the public interest. I think that those who are engaged in these practices would agree that it is fairly essential that the Tribunal should have the confidence of those who are engaged in these fields and that therefore appointees to the Tribunal should have had experience in industry, commerce or public administration.
The requirements set out in this provision would not exclude economists. They would permit economists to be appointed, provided those economists had some knowledge of, or experience in, industry, commerce or public administration. I presume they would exclude a purely academic economist from a university, but they would not prevent economists, or for that matter classical scholars, who had had some experience in these fields from being appointed. If one side or the other so required, economists could be called as witnesses before the Tribunal to give evidence about the practices in question and the effects of those practices, as is done in the United Kingdom. I think it would be a pity to single out a particular academic discipline - that is what is being suggested - and to say that people from that discipline would be qualified for appointment to the Tribunal no matter what was their experience in industry, commerce or public administration. For those reasons, I do not accept the amendment.
Clause agreed to.
Clause 1 1 (Terms and conditions of appointment).
.- I wish to raise a question under sub-clause (2.). Sub-clause (1.) provides that a member holds office for such period, not exceeding seven years, as is specified in the instrument of his appointment. That could be abused inasmuch as the instrument of appointment might secure a series of annual appointments. But I would not attribute to any government abuse of the provision in that way. I mention it only because in my view it is fundamental to the strength and security of the proposed Act that members of the Tribunal should have an assured tenure and should have no fear of it being discontinued if they displease either governments or merchants.
Sub-clause (2.) provides that the remuneration of the members of the Tribunal is to be determined by the GovernorGeneral. I think that the position of a member on this Tribunal is of such a high order that the salary should be determined by Parliament itself. The sub-clause provides that the rate of remuneration shall not be diminished during his term of office, but it can be increased. Where one is dealing with tribunals, the whole principle behind security of remuneration forthe members on those tribunals is to put them beyond fear of either the kicks or the kisses of government. Increases in remuneration should not be at the gift of the government of the day. The remuneration should be fixed by Parliament, as are the salaries of the great and most important officers of the Crown, such as the Commissioner of Taxation, the Auditor-General and, I think, although I am subject to correction on this, the members of the Taxation Boards of Review.
While I am on my feet I wish to comment adversely upon the fact that the travelling allowances of the members of the Tribunal are to be determined by the Attorney-General. They should be as prescribed. In this day and age when a good round figure is allowed for daily travelling expenses, the Attorney-General should not have the opportunity of influencing, however unconsciously, the members of the Tribunal. In my view the travelling expenses should be fixed by regulation. In that way the Attorney-General would determine the travelling expenses but he would be bound to publish the regulation and it would be subject to disallowance by the Parliament. Under this provision he can fix travelling expenses and they are not subject to review by Parliament.
.- Subclause (2.) contains one of the late amendments which were made by the AttorneyGeneral prior to the resumption of the second reading debate in another place. It is one of those matters to which I and other Opposition speakers referred last night, in which there has been, in our view, some further watering down of the original legislation since it was first introduced and certainly by comparison with what we call the original Barwick proposals. The amendment to the original sub-clause (2.), which has now been passed by the House of Representatives, substitutes the word “ remuneration “ for the word “ salary “ in the sub-clause. The purpose of that amendment, of course, is to accommodate to the fact that it is proposed that the members of the Tribunal should be part time members. We express our very keen disappointment that this step which has been taken by the Government indicates that in the early days, at any rate, there is not going to be much work for the Tribunal to do.
Either this is a serious task to which the Government is addressing itself or it is not. We are not alone in the view that
I am putting because the “ Sydney Morning Herald “ of Friday, 26th November, in addressing itself editorially to some aspects of the late amendments introduced by the Attorney-General and commenting on this provision that the Trade Practices Tribunal will include part time members, both lay and judicial, said that these amendments -
Clause agreed to.
– I ask for leave to refer to clause 11.
– Order! The honorable senator is not in his seat. Is leave granted to Senator Wright to speak to clause
I I which we have just passed?
– 1 think that it is rather extraordinary procedure for the Committee to pass a clause and then let it come back again for further consideration. I am not sure what the usual practice is, but this would seem to me to open up all sorts of possibilities. I would like to know more about what Senator Wright wishes to say.
– I went from my seat to consult with the Draftsman, with whom I had been in discussion about the drafting of an amendment to the next clause. That was why I was absent from my seat. I initiated this discussion. If the Committee through the Minister, is going to take the view that, for the sake of the two seconds that it takes to cross two aisles of the chamber, it will not give me leave to move an amendment I do not go down on my knees to ask for it. But as a member of Parliament, in the discharge of my duty to the people I represent, I ask for merely the slightest courtesy from the chamber. I seek leave to speak to clause 11.
-(Senator DrakeBrockman). - Is leave granted?
– Leave is not granted.
Clause 12 (Rights of public servant appointed as member).
.- I notice here, Mr. Chairman, that provision is made for a member of the Tribunal, who, immediately before his appointment was a Public Servant, to retain his existing and accruing rights. These rights will include superannuation rights. I seek information as to what pension or superannuation rights accrue to members of the Tribunal other than those rights coming from service in the Public Service?
.- I take it that the honorable senator is concerned with superannuation rights from public funds and not from other funds. Clause 11 (4.) of Part II of the Bill provides -
Subject to this Part, the Governor-General may, in the instrument of appointment of a member, specify terms and conditions of appointment, which may include terms and conditions making provision, to the exclusion of any other provision that would be applicable, with respect to leave of absence and pensions or retiring allowances.
Clause agreed to.
Clause 13 agreed to.
Clause 14. (1.) The Governor-General may suspend member from office on the ground of misbehaviour or physical or mental incapacity. (2.) The Attorney-General shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within seven sitting days of the House after the suspension. (3.) Where such a statement has been laid before a House of the Parliament, that House may, within fifteen sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member should be restored to office and, if each House so passes such a resolution, the Governor-General shall terminate the suspension. (4.) If, at the expiration of fifteen sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the Governor-General may remove the member from office. (5.) If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit, the Governor-General shall remove him from office. (6.) A member shall not be removed from office except as provided by this section.
.- Mr. Chairman, I think this clause raises a very important principle with regard to the security of the Tribunal. You will notice, Mr. Chairman, that the clause provider -
U-) The Governor-General may suspend a member from office on the ground of misbehaviour or physical or mental incapacity. (2.) The Attorney-General shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within seven sitting days of the House after the suspension. (3.) Where such a statement has been laid before a House of the Parliament, that House may, within fifteen sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member should be restored to office and, if each House so passes such a resolution, the Governor-General shall terminate the suspension.
It is implied that the member is restored to his office.
The implication is the restoration of the member to his office. So there is the possibility of Executive action to suspend a judicial officer from his office for what the Executive thinks is misbehaviour or physical or mental incapacity.- lt acknowledges that the security of an office such as this is so important that it requires that the matter be reported to the Parliament. The provision requires an affirmative vote from each House of the Parliament before the officer is restored to bis office. It is im portant, Mr. Chairman, that we recognise that a decision has to be made as to whether it is the security of the officer that is the paramount matter or whether it is Executive action that is the paramount matter. Everybody with any sense of tradition in these matters will say that we have to provide as much security as possible for a tribunal which is going to come under the pressure of politics that is obviously so keenly felt on one side or the other. Labour spokesmen last night were imputing pressures coming from the community itself onto a government of our political view. We would say that pressures would come on to a Labour government from other sources in the community. There is the danger of Executive action undermining a tribunal where security is great. Executive action in our system of government can always expect support in the other House of the Parliament. Therefore, I submit that we should provide that an officer’s suspension ceases to be operative unless both Houses of the Parliament pass a resolution confirming the suspension.
I consider that we should not require as a condition for restoration of office a resolution from both Houses of the Parliament. Rather it should be that if one House of the Parliament passes a resolution for restoration, then that should be effective. It is provided in section 10 of the Tariff Board Act 1921-1962- (1.) The Governor-General may suspend any member from office for misbehaviour or incapacity. The Minister shall, within seven days after the suspension, if the Parliament is then sitting, or, if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of (he Parliament a full statement on the grounds of suspension. (2.) A member who has been suspended shall be restored to office unless each House of the Parliament, within forty days after the statement has been laid before it, and in the same session, passes an address praying for his removal on the grounds of proved misbehaviour or incapacity.
Section 10 of the Tariff Board Act is greatly to be preferred, I submit, to the provisions that we have in sub-clauses (3.) and (4.) of clause 14 of this Bill. There has been some misunderstanding as to the actual drafting of the provision. If I am given the opportunity, I will reduce to writing the actual terms in which I would propose that this provision be amended.
– Mr. Chairman, while Senator Wright is reducing his amendment to writing, I should like to say one or two things on this matter. What we are dealing wilh is a situation which may arise where, for what appears to him to be good reason, the Attorney-General shall suspend a member of the Trade Practices Tribunal. But, at . the first opportunity, the Attorney-General is required to lay before both Houses of the Parliament reasons for that suspension and to make known to all members of both Houses why the suspension took place. The Attorney-General has to make the matter open to debate by all members of both Houses of the Parliament for them to decide whether or not they agree with what he has done in suspending that member. The member will remain suspended and, in fact, will be removed from office with the consent of either House of the Parliament to the action of the Attorney-General. There is nothing unusual in this proposal. It exists at the present moment, for example, in the Commonwealth Conciliation and Arbitration Act, whereby a commissioner can be suspended by the Attorney-General. With the consent of either House of the Parliament that suspension remains in force. Similarly, the provision occurs in the Commonwealth Grants Commission Act. There is nothing unusual in this provision in the Bill. Nothing will be hidden. Everything will be made fully public.
.- I move -
Leave out sub-clause (3.), insert the following sub-clause - “ (3.) A member who has been suspended shall be restored to office unless each House of the Parliament, within fifteen sitting days of that House after the day on “which the Statement has been laid before it, passes an address praying for his removal on the grounds of proved misbehaviour or incapacity.”
I submit that there is every reason why we all should combine to strengthen this Tribunal and its security in office. The clause, as set out in the Bill, recognises the Parliament’s concern with this matter. I submit that it is proper that, where a judicial officer has been suspended, the suspension should mature into removal only if that is the will of both Houses of the Parliament. This is precisely what my amendment, which I have based on sub-section (2.) of section 10 of the Tariff Board Act, says. That sub-section reads -
A member who has been suspended shall be restored to office unless each House of the Parliament, within- then a certain time is set out - . . passes an address praying for his removal on the grounds of proved misbehaviour or incapacity.
The only alteration I have made to that sub-section is in respect of the time. I have taken the time from the Bill that is before us.
.- I refer to sub-clause (5.). I ask why special provision is made for bankruptcy, but not for crime.
– My officers suggest, and it seems to me to be reasonable, that crime would be regarded as proved misbehaviour.
Clause agreed to.
Proposed new clause 4a.
Consideration resumed from 17 th November (vide page 1592) on motion by Senator Sandford -
After clause 4, insert the following new clause: - “4a. Insert the following section in the Principal Act: - 7b. Notwithstanding anything contained in this Act benefits under this Act arising from death or incapacity shall be available in respect of a person allotted to special service if such death or incapacity occurred in the period between the time of his departure from the last port of call or the last airport in Australia and his return to the first port of call or the first airport in Australia.’.”.
– Senator Sandford moved this amendment some time ago, when the Bill was last before the Committee. The purpose of the amendment was completely clear. It was to cover adequately with repatriation benefits men going on special service, particularly to Vietnam, from the time they left Australia until the time they returned to Australia. After debate in the Committee stage, the Minister for Repatriation (Senator McKellar) sought to postpone consideration of this matter in order to consider submissions from both sides of the chamber. That happened some little time ago.
In the meantime Senator Sandford has received much correspondence and many telegrams from branches of the Returned Services League all over Australia, congratulating him on his move and hoping that the purpose at which he was aiming would be achieved. I have no doubt that similar representations have been made to the Government in the meantime. Also, 12 honorable senators - Senators Morris, Wedgwood, Breen, Prowse, Branson, Scott, Mattner, Wright, Sim, Lillico, DrakeBrockman and Wood - have circulated to all honorable senators an amendment which adopts the principle contained in Senator Sandford’s amendment but extends it in two respects. One is to cover the case of a’ member of the defence forces who was not in Australia at the time when he was allocated for special service in a special area and, accordingly, would not leave Australia for the purpose of performing that special service. Also, there were drafting changes which I concede improved the amendment that was submitted from this side of the chamber-.
Now, after due consideration by the Government, the Minister has made available to me a further amendment designed to achieve the general purpose that was contemplated by Senator Sandford. It picks up the point that the 12 honorable senators to whom I have referred picked up. It covers service in a special area by a member of the defence forces who, at the time he was allocated for special service, was not in Australia. It also makes a number of drafting changes. Again they are improvements.
– Especially the retrospectivity to 1963.
– I am coming to that now. The other major point - this is a very important change in the drafting - is that the amendment which has now been circulated by the Government proposes to make the new provision retrospective to 28th May 1963. That means that every body allocated for duty in Vietnam and other special areas will now be covered from that date. That is a very new and very important concession, which we support.
The Minister has assured me that he will move the amendment which has now been circulated in his name. Acting on that assurance, Mr. Chairman, I suggest that you might, without further discussion from this side of the chamber anyway, formally put Senator Sandford’s amendment, and that we should dispose of it on the voices and clear the way for the amendment that the Government has circulated.
Proposed new clause negatived.
Clause 2 - by leave - reconsidered.
This Act shall come into operation on the day on which it receives the Royal Assent.
– I move -
Leave out clause 2, insert the following clause: - “2. - (1.) Subject to the next succeeding subsection, this Act shall come into operation on the day on which it receives the Royal Assent. “ (2.) The amendments made by section 3a of this Act shall be deemed to have come into operation on the twenty-eighth day of May, One thousand nine hundred and sixty-three.”.
At the outset, let me refresh the memories of honorable senators. When this matter was last before us the Committee accepted the Government’s basic proposal to provide repatriation cover for servicemen not on special service anywhere outside Australia who were incapacitated as a result of the action of hostile forces. Servicemen on special service - for example, those in Vietnam - are already covered by the provisions of the Repatriation (Special Overseas Service) Act when in that area. Following this, an amendment, bearing on the period during which repatriation cover should be provided under the principal Act for servicemen allotted to special service, was proposed by Senator Sandford. This attracted considerable interest. I indicated at that time my aim to get the best possible Bill, and I proposed an adjournment of the debate to enable the Government to consider this new issue.
Since’ then, a number of honorable senators have proposed an alternative means of providing a more extensive period of eligibility under the principal Act. This has been considered by the Government, and I am now able to announce that a method has been devised of providing under the Repatriation (Special Overseas Service) Act, for those allotted to special duty, a repatriation cover, the commencement and termination of which will be the same as that provided under the Repatriation Act in relation to service in Korea and Malaya. The cover will extend to the period during transit between Australia or the point of allotment outside Australia, as the case may be, and the special area. The form of the proposal is embodied in the Government’s proposed amendment to the Bill which has been circulated to honorable senators. The Government has also decided to make this amendment retrospective to the commencement of the Act, and a clause of the Bill, therefore, expresses the amendment to operate from 28th May 1963, the date on which the Act came into effect by proclamation.
With regard to the first amendment that 1 have suggested, the qualifying service under the Repatriation. (Special Overseas Service) Act is as defined in the definition of “ special service “ in section 3 on page 2 and as at present defined in the 1962 Act. Special service has two requirements, first, service in a prescribed special area such as Malaya, Sarawak, Brunei, Sabah and South Vietnam - those are the areas that have been prescribed - plus allotment by the Navy, Army or Air Force for special duty in that area. “ Special duty “ is defined as duty relating directly to warlike operations or to a state of disturbance in that area. I think I have given the Committee sufficient information on the amendment I have proposed, but if any honorable senator wishes any further information I will be happy to give it.
– I would like to ask one question. A person may be allocated to a prescribed area but may not necessarily be sent on special duty. I understand that the benefits would not apply in that case, the factor being that he has to be sent on special duty. Is that correct?
– The position is that he would not be going to a prescribed area unless he had been allotted to special duty for a particular prescribed area.
.- I have no question to ask because, at any rate as far as I am concerned, the position is now very clear. However, I should like on my own behalf, and I know on behalf of many other people, to express thanks to the Minister for his helpful consideration of this problem, which was seen to exist by many honorable senators, and for the courtesy with which he approached it. He has- examined the problem thoroughly and the result is the amendment he has just proposed.
.- As the senator who, during the Committee stage, suggested that this clause undergo further consideration of a more intense nature, and as the senator who was entrusted with the formulation of the amendment which was circulated in the names of my colleagues Senators Morris, Wedgwood, Breen, Prowse, Branson, Scott, Mattner, Sim, Lillico, Drake-Brockman and Wood, I should like to express my satisfaction with the substance of the amendment the Minister has brought down, noting first that it recognises entitlement to repatriation benefits from the time of allotment to special duty in a prescribed area, whether the soldier is then departing from Australia or is in a port outside Australia and so allotted. I am pleased to note also the retrospective cover.
I express my satisfaction at the procedure that the Senate adopted in its deliberations on a matter of deep concern to many people. I believe this is completely in keeping with the procedures that are appropriate to a House of review. The acceptance of this principle by the Minister and, through him, by the Government, is a matter of great satisfaction to all who feel keenly on the subject of repatriation.
– I think it proper that I should join in the paeon of praise and proffer my congratulations to the Minister on his action in adjourning the debate so that he would have ample time to consider the matter and to let it mature in his own mind and in the mind of the Government. The outcome is wisdom and something that gives general satisfaction and justice to everyone. I take the opportunity to congratulate Senator Sandford upon the success of the move that he had the honour to initiate on behalf of the Opposition.
– I am sorry to pursue this but I want to be perfectly clear in my mind. If a serviceman is sent to Malaya, which I believe is a prescribed area, he need not be going for special duty. He could be going for garrison duty. My understanding is that in that case he would not be covered - rightly so. I am not disagreeing with that. But if he goes on special duty he would be covered. Would the Minister tell me whether I am right?
– I may have misunderstood the honorable senator’s first question. The position that he has outlined is correct. A soldier could be going to a special area without being allotted, and in such a case he would not be covered.
– Naturally, everyone in the chamber is very pleased with the turn that this matter has taken. One must give praise first to the honorable senator who initiated it. I refer, of course, to Senator Sandford. I want to thank the other honorable senators who, to be quite candid, made Senator Sandford’s proposal even better than it was. However, I deplore the attitude of the Press. It has played the game, as always, as low as it is possible to play it. This provision will confer something on men who are prepared to go and fight for this country, and everyone in the chamber agrees with it. The Press - especially those persons who write it and who, of course, have to look after their jobs - should give some credit to those who initiated the provision. This has not been done. While honorable senators do not look for credit, I for one hate the misreporting that goes on in relation to decisions and suggestions that are made in this chamber.
– I feel that I would be remiss if I did not make a few remarks with regard to this matter, being the one who had the honour, on behalf of the Australian Labour Party, to initiate the amendment to extend repatriation benefits to servicemen who are, in many instances, conscripted and sent overseas for service. As the utmost is expected and demanded of them, it is only reasonable that they should have the best in return. I congratulate the Minister on the action that he has taken and I endorse the remarks of my leader. I have quite a number of communications from every State in the Commonwealth expressing appreciation of the action taken by the Australian Labour Party in initiating this amendment. I do not want to be ungenerous, but I really believe that, had it not been for the action taken in this matter by this side of the chamber, honorable senators opposite probably would have remained as silent as the Egyptian Sphinx.
– No, the honorable senator just beat us to the gun on it.
– Not at all. I endorse the remarks of my Deputy Leader on the matter of Press publicity. It was very noticeable to us that not one mention was made in the Press of the fact that this amendment was initiated in this chamber by the Australian Labour Party. All the credit, from a publicity point of view, has gone to those who are termed the rebel senators. I do not want to dwell on that line. I want to make perfectly clear that I am very thankful to the Minister for having adopted this attitude. I am quite certain that the Returned Services League will be very pleased with the ultimate result. In this late stage of the passage of this legislation, the Press should at least give some publicity and thanks to the Australian Labour Party for having initiated this reform.
– I should like the Minister to clear up one small point. Previously, we agreed to clause 4. This amendment, I think does away with the need for clause 4 insofar as it alters the definition of “ special service “.
– No, it does not do away with the need for that clause.
– That is the point on which I want some clarification. Perhaps the Minister can tell us what is the need now for clause 4. I am not sure whether we know where we are going. I am at a disadvantage because I have just got the amendments and, having a slow mind, I take some time to absorb what they really mean.
– I have not noticed the slowness.
– It is there. The Minister has never caught me before as quickly as on this occasion, so there has been no reason why I should disclose it. As I understand the position, the 1962 Act extends repatriation benefits for service in a declared area. Clause 4 makes provision for those who are going to or from a declared area and who suffer incapacity or death as a result of enemy action or warlike operations. I understand the amendment to put travelling to and from such an area in the same category as service in the area. That brings me back to the point from which I started. What is the further need for clause 4, to which we have agreed? Those who are covered by clause 4 are now to be given a wider coverage. To qualify them for repatriation benefits, it will no longer be necessary for the death or injury to result from enemy action or warlike operations. The amendment does not seek to repeal clause 4. Senator Wright seemed to disagree with me, and he may be right. I should like to know how far he is right. Will the Minister explain whether there is a need for clause 4? I should like to know what application it has and to whom it applies.
– The reason for still having clause 4 in the form in which it was agreed to is to cover a person who is not allotted to special duty but who, when proceeding to the area, sustains injury from warlike action. Clause 4 does give a wider cover.
Amendment agreed to.
Clause, as amended, agreed to.
Proposed new clause 3a.
– by leave - I move -
After clause 3, insert the following new clause: - “ 3a. Section 3 of the Principal Act is amended -
by inserting in sub-section (1.), after the definition of ‘ pension ‘, the following definition: - “ port “ includes airport;’;
by omitting from sub-section (1.) the definition ‘ special service ‘ and inserting in its stead the following definition: - “ special service “, in relation to a person, means service of the person as a member of the Naval, Military or Air Forces during a period comprising–
a period when he is outside Australia and he or his unit is allotted for special duty in a special area; and
if, at the end of that period he is outside Australia and travels to a place other than the place where he is at the end of that period, being a place to which he or his unit is allotted for duty other than special duty - the period commencing at the end of that period and ending at the time when -
he arrives at that other place;
he commences a further period of special service; or
he ceases to be outside Australia, whichever first occurs;’;
by adding at the end of sub-section (1.) the following definition: - “ unit “, in relation to a person, means a body, contingent or detachment of the Naval, Military or Air Forces of which he is a member or to which he is attached.’; and
by inserting after sub-section (1.) the following sub-section: - (1a.) For the purposes of the definition of “ special service “ in the last preceding sub-section -
a person who travels from a place in Australia to a place outside Australia shall be deemed to have departed from Australia when he departs from the last port of call in Australia; and
a person who travels to Australia from a place outside Australia shall be deemed to have arrived in Australia when he arrives at the first port of call in Australia.’.”.
I think the purpose of the amendment is fairly clear, but to clarify it a little further
I have the following notes regarding interpretations -
” Special Service “; a new definition of “special service” is inserted; the additional cover it provides is for persons who have been allotted for “special duty” -
At this juncture I would like to pay a well and hard earned tribute to the Parliamentary Draftsman who worked from last Thursday to Tuesday evening to get this matter into final shape. It involved a tremendous amount of work and the tearing up of many drafts. We owe hima debt of gratitude. I want also to take this opportunity to express my appreciation of the cooperation I have had from the Opposition.
Proposed new clause agreed to.
Clause 5 agreed to.
A Bill for an Act to extend the class of persons entitled to benefits under the Repatriation (Special Overseas Service) Act 1962-1964.
Amendment (by Senator McKellar) agreed to -
Title, leave out “ the Class of Persons entitled to “, insert “ Eligibility for “.
Title, as amended, agreed to.
Bill reported with amendments; report adopted.
Bill (on motion by Senator McKellar) read a third time.
– I present the following paper -
Advance to the Treasurer - Statement for the year 1964-65 of Heads of Expenditure and the amounts charged thereto pursuant to section 36a of the Audit Act 1901-1962.
Motion (by Senator Henty) - by leave - agreed to-
That consideration of the statement in Committee of the Whole be made an order of the day for a later hour this day.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– I move -
That the Bill be now read a second time.
The purpose of this Bill is to amend the Customs Tariff (Dumping and Subsidies) Act 1961, to enable action to be taken to counter new forms of dumping which have become evident since the main Act was passed. The level of any protection granted to economic and efficient Australian industry determined after inquiry and report by the Tariff Board is based on the assumption that goods imported into
Australia are sold by the exporter at fair and reasonable prices; that is not below “ normal value “. In broad and general terms, this means that export prices should be not less than the prices at which the goods are available in the domestic market of the country of export. It frequently happens, however, that goods are sold for export at prices which, in comparison with their normal values, are not fair and reasonable, but which have been deliberately set at unduly low levels.
Another cost element which must be taken into account in determining the prices at which imported goods can be sold on the Australian market in competition with locally produced goods is the overseas freight cost. In assessing the level of tariff necessary to protect efficient Australian industries the cost of overseas freight associated with the imported product must be taken into account. Needless to say the level of tariff protection is based on the normal or ruling costs associated with the imported product. Hence, if overseas suppliers are able to negotiate freight rates which are significantly lower than the normal rates, then obviously the competitive position of the Australian industry is placed in jeopardy.
This Government has always taken the firm view that dumping in all its forms must be countered whenever it damages or threatens to damage an Australian industry. The Principal Act, which this present legislation is designed to strengthen, was drafted to achieve this purpose. In general, the Act has proved to be effective against the usual forms of dumping. However, since it came into operation certain new forms of dumping, apparently designed to circumvent the Act, have been identified. These sophisticated trading practices have been causing damage to Australian industry particularly to the chemical and other capital intensive industries.
A complete review has been made of the Act and its shortcomings in relation to the dumping practices which were impairing the protection to Australian industry. The present Bill incorporates the results of this review.
I now propose to outline the main features of the Bill and to define those practices which it is designed to counter.
Clauses 1 and 2 of the Bill are procedural changes relating to title, citation and date of operation of the Act. Clause 3 vests in the Minister for Customs and Excise the power to determine the “ export price “ of goods exported to Australia where, in his opinion, there are reasonable grounds for believing that the documentary export price has been fixed with a view to avoiding dumping duty or other special duties payable in accordance with the provisions of the Act. This is an amendment having a wide effect, and one which introduces into the legislation an element of flexibility necessary to counter all the various practices that have arisen.
The opportunity has been taken to improve the wording of the definition of “ export price “. For example, “ delivery charges “ - previously referred to as “ free on board charges “ - have been precisely defined. The amendments in this clause are designed to enable counter action to be taken against practices known as “ sales dumping “ and “ package deals “. Sales dumping is the export to Australia of goods declared at normal value, i.e., at a fair and reasonable price thereby incurring no dumping duty, which are subsequently resold or costed into production in Australia at an amount which is less than normal value plus overseas freight, insurance, exchange, duty and landing charges, plus a normal or reasonable profit. In sales dumping, the element or act of dumping occurs, not between the exporter and importer, but at a point in the chain between the importer and the user in Australia. There have been, for example, instances of goods which have been imported by companies wholly owned by overseas principals, but separate corporate entities, and which have been the subject of sales dumping after importation into Australia. The wider powers would not be exercised, of course, in cases where the goods are imported in good faith and the importer incurs a genuine loss.
Package deals are transactions in which goods not liable to dumping duties are supplied at reduced prices as an inducement for the purchase of other goods at normal or non-dumped prices, thereby avoiding dumping duty that would otherwise be payable on the latter goods. In this instance, the dumping is transferred, so to speak, from goods which are competitive with Australian products, to goods which are not competitive but which form part of the one transaction. These powers giving flexibility in the determination of export price should allow the practices I have mentioned to be countered. Anti-dumping legislation needs to be flexible enough to allow the determination of a true export price and a true normal value to ensure that people do not evade the anti-dumping law. The proposed amendments to the Act will achieve this objective in regard to export price. The present powers to determine normal value arc sufficiently flexible to prevent circumvention of the Act, insofar as this aspect is concerned.
Clause 4 of the Bill incorporates a drafting change consequent upon the amendment to the definition of “ export price “ in clause 3. It also vests in the Minister for Customs and Excise further powers to exempt from payment of dumping duties goods imported under certain circumstances. It is intended that these powers be exercised to exempt goods from the collection of dumping duty in cases where such collection would be contrary to the provisions of international agreements to which Australia is a party. Furthermore, the amendment will allow exemptions in cases where goods are admitted under customs by-law on the grounds that suitably equivalent goods, the produce or manufacture of Australia, are not reasonably available, i.e., exemption is granted on the premise that, if there is no production in Australia, there can be no injury to an Australian producer. For example, certain types of paper and paperboards are not made in Australia but all types are covered by the dumping notice thereby rendering them liable to dumping duty.
Clause 5 of the Bill merely incorporates a drafting change consequent upon the definition of “ export price “ in clause 3. Clauses 6 and 7 also incorporate minor drafting changes and machinery provisions. Clause 8 embodies an amendment designed to make it clear that counter action may be taken against imported goods, competititve with those produced in Australia, which are carried at freight rates that are significantly lower than the normal rates. Recent experience has shown that, particularly for industrial chemicals, the freight rates for certain shipments have been very much lower than the normal rates which would have been taken into account in assessing the level of tariff protection. It has been found that certain chemicals have been carried on charter vessels at rates which are only one-third of the normal rates.
There is some doubt as to whether the existing provisions of the Customs Tariff (Dumping and Subsidies) Act 1961 embody powers to counter all forms of freight dumping. The amendment Which I have just proposed merely restores the provisions which were incorporated for many years in the old Customs Tariff (Industries Preservation) Act which was repealed in 1961 when the present Act was introduced. Clause 10 of the Bill is a drafting change made necessary by the format of the Customs Tariff 1965 which was passed by Parliament during the last session. Clause 11 of the Bill is a drafting change to ensure that section 15 of the principal Act authorises both the calculation and imposition of the special duties provided for under the Act.
In Clause 12 of the Bill the provisions regarding instruments of exemption have been qualified to bring them within section 16 of the Act. This means that the provisions covering the specification of the goods can also be applied to the exemption of goods. Clause 13 provides that the taxing powers incorporated in this Bill do not apply to goods entered for home consumption prior to the commencement of this Act, i.e., the taxing powers do not have any retrospective application.
The proposed amendments to Australia’s anti-dumping law stem from the Government’s determination to protect local industry against the invidious practice of dumping in all its varied forms. There is no need for me to reiterate here the kind of damage that dumping can do to Australian industry and the Australian economy as a whole. Honorable senators will recall that the Committee of Economic Inquiry expressed concern regarding the effects of dumping and emphasised the necessity for strengthening the existing law.
The Government is also becoming increasingly concerned with a trading practice which involves inadequate deletion allowances. Inadequate deletion allowances occur when goods - for example, motor vehicle components - are sold in a pack for assembly into a complete article. Importers of component packs pay the price for a complete pack less an allowance for any components which the importer wishes withdrawn from the pack and which he intends to purchase in Australia. This allowance is known as a “ deletion allowance “. If an offered deletion allowance is less than the real value of a component there is a positive financial disincentive to purchase such a component in Australia. In this way, offers of inadequate deletion allowances nullify the protection given by the Government to Australian component manufacturers.
In the case of the automobile industry, this practice has militated against efforts made by Australian manufacturers and assemblers to increase the Australian content of locally produced vehicles. If not checked, the practice may prevent attainment of the objectives of the Government’s policy of increasing local content of automobiles. The Government is closely examining the practice of inadequate deletion allowances. If it continues the Government will take steps to regard an offered deletion allowance as the export price of the goods, with a view to affording protection under the provisions of the Customs Tariff (Dumping and Subsidies) Act. I commend the Bill to honorable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– I move -
That the Bill be now read a second time.
The current Sulphuric Acid Bounty Act 1954-1965 is due to expire on 31st December 1965 but it is proposed to extend its period of operation to 30th June 1969. While the specific purpose of this Bill is to extend the provisions of the current sul phuric acid legislation, I shall shortly introduce a similar measure to implement the extension of the Pyrites Bounty Act 1960- 1965. However, as both industries are closely allied, I shall deal with the reasons for the extension of both bounties in this speech.
Because of the world shortage of brimstone which existed in the early 1950’s, the manufacture of sulphuric acid from Australian materials was encouraged. To compensate for the cost disadvantage of using these materials, a bounty scheme was introduced. In 1959, the policy of actively encouraging conversion of plant to the use of local materials was discontinued, following an improvement in the supplies of brimstone from overseas. However, the bounty scheme was continued because the Government acknowledged an obligation to those manufacturers who had co-operated in the previous policy by installing plant and machinery to handle the local materials. In accordance with that obligation, the Bill before the Senate provides for extension of the Sulphuric Acid Bounty Act 1954-65 to 30th June 1969. The extension of the operation of both the sulphuric acid and pyrites bounties to this latter date follows upon consideration by the Government of a report of the Tariff Board following its recent review of both industries.
In giving effect to the Tariff Board’s recommendations, no change is proposed in the rates of bounty payable on iron pyrites used for the purpose of manufacturing sulphuric acid or on sulphuric acid produced from lead sinter gas. The basic rate applicable to the former is £3 per ton of the sulphur content of pyrites while on the latter it is £1 2s. per ton, both rates varying in accordance with the rise or fall of the landed cost of imported brimstone above or below £16 per ton. However, it is proposed that the bounty payable on 100 per cent, sulphuric acid produced from iron pyrites be reduced from £3 to £2 10s. per ton in accordance with the Tariff Board’s finding that the cost of converting pyrites to sulphuric acid has fallen by approximately ten shillings per ton more than the conversion costs for brimstone have fallen.
In accordance with the provisions of the Sulphuric Acid Bounty Bill, the variation in the rate of sulphuric acid bounty will operate as from 26th November, 1965. It is proposed that a further Tariff Board enquiry be conducted before the new bounty periods expire. Opportunity has also been taken to bring the current Sulphuric Acid Bounty Act into conformity with present practice in bounty legislation by clarifying the profit limitation provision in those cases where the financial years of the claimants and the bounty periods do not coincide, so that the claimant’s financial year may be taken as the bounty year. Provision has also been made for the payment of advances of bounty the delegation of the powers of the Minister for Customs and Excise and the Comptroller-General of Customs, and for the annual returns to Parliament, under the Act, to be compiled in respect of years ending 30th June. I commend the Bill to honorable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– I move -
That the Bill be now read a second time.
As indicated in my speech on the Sulphuric Acid Bounty Bill, it is also proposed to extend the Pyrites Bounty Act 1960-1965 until 30th June 1969. In my earlier speech I outlined the reasons for the extension. In preparing this legislation, the opportunity has been taken to clarify the treatment of the profit limitation provision in those cases where the financial years of the claimants do not coincide exactly with the bounty periods so that the claimant’s financial year may be taken as the bounty year. Also, provision has been made for the delegation of powers by the Minister or the Comptroller-General and that the returns to Parliament, under the Act, are to be in res pect of years ending on 30th June. These amendments are to bring the Act into line with present practice followed in bounty legislation. I commend the Bill to honorable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Consideration resumed (vide page 2192).
Clauses 15 and 16 agreed to.
Clause 17. (1.) Except as otherwise provided by this Act, the Tribunal shall for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member and two members who are not presidential members. (2.) Where, before the commencement of the hearing of proceedings to which the last preceding sub-section would be applicable, there is filed with the Registrar, in accordance with such requirements as totime or otherwise as are prescribed, a notice signed by or on behalf of all the parties, other than the Commissioner, that they have agreed that the proceedings shall be dealt with by the Tribunal constituted by a single presidential member, the Tribunal shall be constituted for the purpose of those proceedings by a single presidential member. (3.) The Tribunal as constituted in accordance with the last preceding sub-section may continue to deal with proceedings notwithstanding that a further party is added to the proceedings after the commencement of the hearing. (4.) The validity of a determination or order of the Tribunal purporting to be constituted by one or more members in accordance with this Act shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal by that member or those members.
– This clause deals with the constitution of the Tribunal. It is directed that the Tribunal shall consist of a presidential member and two members who are not presidential members. Sub-clause (2.) provides that, by consent of all parties, the Tribunal may consist of a single presidential member. Subclause (3.) provides that the Tribunal so constituted may continue to deal with proceedings notwithstanding that a further party is added to proceedings after commencement of the hearing.
I wish now to focus attention on subclause (4.) which states -
The validity of a determination or order of the Tribunal purporting to be constituted by one or more members in accordance with this Act shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal by that member or those members.
I move - leave out sub-clause (4.).
I shall explain my reasons for so moving. The Tribunal is constituted in such a fashion as to combine judicial members and lay members. The lay members are selected from persons who have experience in commerce, industry or public administration. It is indicated that they are to be appointed on a part time basis. In the Minister’s second reading speech, he indicated that they may be people who have achieved distinction in business or public administration and because of diminishing responsibility are available for duty on the Tribunal.
I do not wish to equate the lay members of the Tribunal with jurymen, but the fact is that they are to be called in by Government appointment. They are members of the public with only the experience to which I have referred. They are required to have that experience only to the extent to which it appears to the Governor-General that they have it. I submit that it is fundamental to the proposition that one should have one’s rights determined by a tribunal and that that tribunal should be constituted by law and strictly in accordance with the law. The law puts down so many safeguards to ensure integrity in tribunals that it is most important that, when the constitution of a tribunal is set up, it should be completely in conformity with the legal requirements.
I submit that in the context of this Bill there is a special objection to a provision such as clause 17 (4.), which prevents any determination or order of the Trade Practices Tribunal being called into question or invalidated by reason of any defect or irregularity in the constitution of the Tribunal. I submit that the principle requires that the Tribunal should be constituted in accordance with law. One would have to go back for three centuries to find any possibility of a person appointed to judicial office having communications with the parties, having interests which were inconsistent with impartiality, or having any transactions, current or contingent, with the parties. It would be odious to suggest that people of that description should be appointed to judicial office.
But under the jury system, where we have a list of men of integrity in the com munity who are called to the jury box by the luck of the draw, so to speak, any party to proceedings in any jurisdiction of which I am aware has some right to challenge persons who are about to take their seats as jurymen as part of the tribunal that is to judge the case. In America, of course, the position is taken much further. In some jurisdictions, in the case of criminal juries a very full right is given to inquire into the interests, inclinations and judgment of the proposed jurymen. I am not suggesting the adoption of anything of that sort here. I just bring these matters to the minds of those members of the Committee who are interested to reinforce my point that it is quite improper to have a provision in the statute whereby no order of the Tribunal may be called into question due to any defect or irregularity in the constitution of the Tribunal.
I would not object to such a provision if the defect or irregularity were formal. I would not object to such a provision if the party concerned knew of the defect or irregularity but conducted his case to a conclusion and then attempted to take advantage of that defect or irregularity. You do not need this provision in order to preclude a party from taking advantage of that sort of thing. A party is stopped from making a complaint about the constitution of this Tribunal if, with knowledge of the defect, he continues to put his case without taking the objection at an early or proper stage.
– Whatever may be said for or against this clause, one thing that cannot be said against it is that it imports some new principle into this kind of legislation. It is in significantly similar terms to provisions of other Commonwealth legislation. I refer to the Commonwealth Conciliation and Arbitration Act, the Dairy Produce Export Control Act, the Tariff Board Act, the Stevedoring Industry Act, the Canned Fruits Export Control Act and the Commonwealth Banks Act. If anybody objects to the constitution of such tribunals while a case is in progress, he has a proper means of doing so. There is no reason why, at the conclusion of a hearing, some technical point should be allowed to be raised in order to escape the consequences of the determination. There is nothing new about the proposal contained in this clause.
– 1 did not suggest that this provision was a novelty, but I did ask the Minister to consider whether it did not have a novel application in the sense that the Tribunal will consist of part time members from the business community who will sit in judgment on the business community. I was not able to follow the list of Acts that the Minister enumerated rapidly. However, I point out that the Commonwealth Conciliation and Arbitration Commission consists of full time appointees and, according to my recollection, the Australian Stevedoring Industry Authority also consists of full time appointees. In both cases the appointees have a full time duty which is related exclusively to the work of the tribunal. The Trade Practices Tribunal has a very special feature, and it is only because of that special feature that I raised this matter for the decision of the Committee. It is proposed to use part time members drawn from the business community to sit in judgment upon other members of the business community. I submit that the proposition I have put forward deserves better than hasty consideration and, indeed, deserves to be accepted.
– It seems to me to be quite irrelevant whether the appointees to the Tribunal are part time or full time members. What is at issue is the constitution of the Tribunal and any defect or irregularity in its constitution. I shall read more slowly the list of Commonwealth Acts in which a similar provision is included. They are the Commonwealth Conciliation and Arbitration Act, the Tariff Board Act, the Dairy Produce Export Control Act, the Stevedoring Industry Act, the Canned Fruits Export Control Act and the Commonwealth Banks Act. I read that list earlier in my answer to what I understood to be a submission by the honorable senator that there was something wrong in principle with the provision we are now considering. I suggest that the principle is well established. The Government would like the clause to stand as it is.
– I am sorry to have to take up further time of the Committee. I am obliged to the Minister for repeating the Acts to which he had previously referred. But the boards that are constituted under the Dairy Produce Export Control Act and the Canned Fruits Export Control Act have no judicial functions or pseudo-judicial functions to perform.
– Not even the Tariff Board?
– I have not mentioned the Tariff Board. The Commonwealth Conciliation and Arbitration Commission and the Tariff Board perform functions of a judicial nature and permanent salaried officers are appointed to them. It is totally unlike the situation that is proposed in this Bill where members of the business community will be called in on a part time basis to sit in judgment on other members of the business community. I submit that if we adopt this clause we shall be proscribing complaints of defects or irregularities in the constitution of the Tribunal.
I only want to add one further comment. It relates to administrative tribunals, not business boards. The Franks committee which sat in England and made a report in about 1958, recommended the wholesale repeal of clauses that prevent a party from complaining about the constitution of administrative tribunals by means of various prerogative writs. This is a clause of that nature. That committee, which was specially set up by the Conservative Government in England, reported to that effect. This is one of the expanding and pervading problems of the. modern world. With the proliferation of administrative tribunals, one should take every step to see that the administration of justice within their jurisdiction is maintained in a pure way. Therefore, I again urge the Minister to consider the reasonable proposal that 1 have put forward.
Clause agreed to.
Clause 18 agreed to.
When a member, other than a presidential member, is informed by the President that the President proposes that the member shall be a member of a Division of the Tribunal in any proceedings, the member shall, to the best of his knowledge, disclose to the President any direct or indirect pecuniary interest that the member has in any business carried on in Australia, or in any corporation carrying on any such business, being an interest that could be in conflict with his duties as a member of the Tribunal in those proceedings.
.- This clause recognises the principle that I sought to apply in my amendment to clause 17. I understand that to some extent this clause was amended and improved in another place. Insofar as it requires disclosure to the President, even when the disclosure is limited to the best of the member’s knowledge, it is some safeguard, but 1 suggest that it is not a sufficient safeguard to the parties. Therefore, I move -
After “President”, third occurring, insert “and the parties to the proceedings”.
The clause would then require the proposed member of the Tribunal to -
It may be that the amendment is superfluous inasmuch as I could not conceive of the President receiving a disclosure of the character referred to in the clause without his communicating it to the parties. But I submit that it is infinitely better to have the matter beyond dispute. Resentment to this sort of legislation will arise if a party has a lurking idea that a member of the Tribunal has some interest in the matter which could possibly conflict with complete impartiality. I ask the Minister to consider accepting the amendment that I have moved.
– I believe that I should say something in relation to this clause and to a number of the points that have been raised by Senator Wright. The clause deals only with the position where the President proposes that a member shall be a member of a division. In that case there would be no real necessity for any disclosure to the parties because the person would not then have become a member of the Tribunal for the purposes of the proceedings. But when one gets to the position where that person may be a member of the Tribunal for the purposes of the proceedings, surely in relation to the proposed Act, as in relation to all other acts, the great principles of the common law would apply. One of the fundamental principles of interpretation is that there should be no departure from the principles of the common law in a statute unless by expressed words or necessary implication. If a person who happened to be on the Tribunal had an interest in the matter, his plain duty, without any words being put into the Act, would be to disclose that interest to the persons conducting the matter before him.
I suggest that it is not necessary for us to go through this Bill and incorporate all the fundamental principles of the common law because when they are not stated and are not dealt with, they apply with full force and vigour. If we were to put in some but not all, we would be much worse off than we would be if we were to leave the statute to operate against the fabric of the common law. We on this side of the chamber are just as concerned as is Senator Wright that there should be justice in the administration of any tribunal. But we do not think it is necessary to write into this Bill all the matters which are common to justice as we know it.
.- I want to refer to another question regarding this clause. I am not entirely convinced by what Senator Murphy has said, and I do not want to prolong the debate, seeing that I am not getting enough support to put the question to a vote in a division. I raise this point and I persevere on the assumption that what is written into clause 19 is written with purpose and with complete justification. The clause deals with the case where the President of the Tribunal allots a member to a division for the purpose of a particular proceeding. That makes relevant what I wish to say. The member then must disclose any direct or indirect pecuniary interest he has in any business or in any corporation carrying on a business. Suppose the member is a former managing director who has retired from a business, sold all his shares in it, and is interested only in the superannuation fund set up by it. I ask: Has he a pecuniary interest in that business?
I suggest that it would be far better to omit the word “ pecuniary “. You will permit me to remind you, Madam Temporary Chairman, that after debate in this Senate there has been evolved what is more or less a standard form of reference to matters that disqualify members of Crown corporations from office. One which has been handed to me in such a matter relates to the Australian Institute of Aboriginal Studies which provides -
A member of the Council who is directly or indirectly interested in a contract . . .
The word “ pecuniary “ is not used. My recollection is that the word “ pecuniary “ in this context where it has occurred in local government statutes has given an altogether too limited definition of the interest which should disqualify. Therefore, I seek from the Minister his interpretation of pecuniary interest particularly in relation to the instance that I have cited.
– It is laid down that a direct or indirect interest is one which is of such a nature that it might well disqualify a member proposed to be appointed to the Tribunal from being appointed. This is a matter to be decided by the President of the Tribunal himself who is a judge and who has had this matter reported to him. AllI can say is that my interpretation of pecuniary interest, for which Senator Wright has asked, is that if a member has an interest and if the case being decided could turn one way or the otherto his profit, that would be what I would regard as a pecuniary interest.
.- Madam Temporary Chairman, I was not seeking that sort of expression of opinion. I disagree entirely with , the viewpoint’ that it is for the President of the Tribunal to say whether the interest is one that should preclude a member taking part in the proceedings of a division. The President will be governed by the terms of the statute. He will interpret the terms of the statute in accordance with the law. While the term “direct or indirect pecuniary interest” can be included there, the only thing the President can take notice of is what is written in the statute. It is for that purpose that I seek some expression of view as to whether the case I put would be regarded as a case in which the person concerned had a direct or indirect pecuniary interest in the company. Please, I ask the Minister through you, Madam Temporary Chairman, to acknowledge that a senator seeking information of that sort is entitled to a reasonable answer.
.- I submit that Senator Wright has had a reasonable answer already. I disagree just as completely with him as he appears to disagree with me. The clause leaves the matter to the President. It describes a direct or indirect pecuniary interest that a member has in any business carried on in Australia that could be in conflict with his duties as a member. So, he reports the matter to the President, and the President decides whether, in his judgment, it could be such an interest. The phrase “ direct or indirect pecuniary interest” is nothing unusual. It appears in section 44 of the Commonwealth Constitution in relation to disqualifications - of persons to be members of Parliament -
Any person who - (v.) Has any direct or indirect pecuniary interest in any agreement . . . shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
I regret that, if the honorable senator does not agree with the explanations I. am endeavouring to give him, I cannot help him further. I am giving him these explanations to the best of my ability.
Clause agreed to.
Clauses 20 to 33 agreed to.
Clause 34 (Secrecy).
Clause - by leave - postponed.
Proposed new clauses 34a. and 34b.
– I move -
After clause 34 insert the following clauses - “ Part IIIa. - Predatory Pricing and Monopolization. “34a. - (1.) A person who engages in persistent price cutting at a loss with the object of substantially damaging the business of a competitor or preventing a possible competitor from entering into competition is guilty of an offence. (2.) The penalty for an offence against this section is -
in the case of an offence committed by a corporation - a fine not exceeding Ten thousand dollars; or
in any other case - a fine not exceeding Four thousand dollars or imprisonment for a term not exceeding six months. “34b. - (1) A person who engages in monopolization is guilty of an offence. (2.) In this section - monopolization ‘ means acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business, or using monopoly power in a manner that is unreasonable and detrimental to consumers of goods or services; monopoly power ‘ means the power to fix, or influence substantially, the market price of any kind of goods or services, or to prevent persons entering or expanding businesses. (3.) The penalty for an offence against this section is -
in the case of an offence committed by a corporation - a fine not exceeding Ten thousand dollars; or
in any other case - a fine not exceeding Four thousand dollars or imprisonment for a term not exceeding six months.”.
The purpose of this amendment is to insert into the Bill those provisions dealing with monopolisation and predatory pricing which were incorporated in the original Barwick proposals. Those proposals have been carefully followed in the drafting of these clauses. The proposals by Sir Garfield Barwick, when he was Attorney-General, were presented to another place on 6th December 1962 by the then Acting Attorney-General, Mr. Freeth. The speech set out a number of practices which were regarded as inexcusable and therefore unregistrable. These practices included persistent price cutting at a loss, to drive a competitor out of business, and also monopolisation. The Acting Attorney-General stated in his speech -
Monopolisation will be defined, broadly speaking, as acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business, or in a manner that is unreasonable and detrimental to consumers of goods or services. Monopoly power, for this purpose, will be defined as the power to fix, or influence substantially, the market price of any kind of goods or services, or to prevent persons entering or expanding businesses.
Those two practices were regarded as being completely inexcusable. They were included with the two practices that are now left in this Bill; namely, collusive tendering and collusive bidding.
Predatory pricing is price cutting which is at a loss and which is directed to driving another person out of business. Provisions to deal with it have been a feature of the law of the United States for nearly 30 years - in fact, since the Pattman-Robinson Act of 1936. That Act made it a criminal offence to undersell a competitor in order to drive him out of business. It is the worst type of offence. It is one of the matters that concern the small businessmen of whom Senator McManus spoke last night.
– May I interrupt for a moment? I am slightly confused. The honorable senator is now speaking to proposed new clause 34a, is he not?
– Did not the honorable senator move that clause 34 be postponed until the consideration of clause 40?
– Previously I moved, and the Committee agreed, that consideration of clause 34 be postponed. I am dealing now with proposed new Part IIIa and proposed new clauses 34a and 34b, which have nothing at all to do with clause 34.
– I follow.
– It might be simpler to say that we suggest that proposed new clauses 34a and 34b be inserted before clause 35. This is a whole new Part, dealing with predatory pricing and monopolisation. Predatory pricing is pricing that is aimed at destroying a competitor. It is not the kind of undercutting or lowering of prices that is normal business methods. This practice was described by the former AttorneyGeneral as being predatory. In other words, this is the action of the beasts of the jungle. It is preying on competitors, not merely engaging in honest business methods. It is the worst type of business conduct, because it is aimed at destroying a competitor or driving him out of business in order to gain his business. It is underselling at a loss in order to destroy a competitor. Of course, once a person who has engaged in this kind of activity has swallowed up his competitor, naturally prices are raised, and raised sufficiently high to make up for the losses that were incurred in underselling at a loss. Also, there must have been some purpose in destroying the competitor. That purpose was to engage in a course of pushing up prices to whatever level they can be pushed up.
The other aspect of this proposed new Part is monopolisation, which again was part of the Barwick proposals. This proposed new clause is in the very terms of the definitions of “ monopolisation “ and “ monopoly power “ that were put forward by Sir Garfield Barwick. These proposals were put to the Parliament. Later they were also put to the people. They were mentioned in the policy speech of the Prime Minister (Sir Robert Menzies). We say that they ought to be carried on. Similar proposals in relation to predatory pricing have been the law in the United States since 1936. This is the type of law which has existed in that country since 1890 and which ought to be the law in Australia.
In this way we can deal with the people who are the real offenders in trade practices - the people who are prepared to destroy their competitors by persistent undercutting of prices at a loss. We are dealing with the giants who are prepared to engage in this activity over a period sufficient to destroy a competitor, who in most cases would be a small businessman. Monopolisation is a corollary of that, because there is the tendency to swallow up the smaller person and to engage in the monopoly activity which is defined in proposed new clause 34b and which is obviously to the public deteriment. Monopolisation is not simply growth. It is not natural or efficient growth. It is defined as follows - “ monopolisation “ means acquiring or using monopoly power with the intention of preventing a person from entering or expanding a business, or using monopoly power in a manner that is unreasonable and detrimental to consumers of goods or services.
Then “monopoly power” is defined as follows - “monopoly power” means the power to fix, or influence substantially, the market price of any kind- of goods or services, or to prevent persons entering or expanding businesses.
– Is it ever admitted that monopoly power is used to reduce prices?
– If that did happen, as we see the position it would not be affected by the amendment that I have moved, except in one sphere. The amendment, insofar as it deals with monopolisation, deals with detrimental effects on the public or the misuse of the concentration of power. The one sphere in which the lowering of prices would come up against this proposed new Part is where a monopoly or any other person lowered prices in a special way, namely, in order to drive a competitor out of business by underselling him at a loss. It is persistent undercutting at a loss in order to drive a competitor out of business that is hit at. Only in that way would the lowering of prices be regarded as being offensive. Only activities which are detrimental are aimed at in this proposed new Part. These provisions have been tried and proven elsewhere. They were put to the Parliament on behalf of the former Attorney-General. They were even put to the people by the Prime Minister in his policy speech. We say that they ought to be restored to the Bill.
.- I propose to support this amendment. I am impelled to do so because of circumstances that came under my notice about two or three years ago. They concerned a small business organisation in my own State of Victoria. It appears that a dry cleaning organisation in that State has aspirations to set itself up as a big business - perhaps as a monopoly. I was interviewed by a man who, in a small country town, had established himself as a dry cleaner and, by hard work as an individual proprietor, had succeeded in making his business relatively prosperous.
He informed me that one day he was introduced to a gentleman who told him that he represented this big dry cleaning organisation. He was told that that firm had had his business under observation and had come to the conclusion that it was a pretty good one. He was told that the firm had now decided to offer him a price for his business. He explained to them that the business was something personal to him, that he had started it, had built it up and did not want to leave it. It was providing him with a reasonably good living and he had the satisfaction of being his own employer. He saw no reason why he should give up his business. He was then told: “You had better sell. We have bought the lease of a shop down the street, and if you do not sell your business to us we will open that shop and will undercut your prices to such an extent that eventually you will be forced out of business.” I have not been able to find any real remedy available to that man to meet that situation. He was merely the object of a squeeze of the kind that is being used in more than one industry in Australia today.
Honorable senators may have noticed that the business of baking bread is falling into fewer and fewer hands in Australia. Let me instance how exactly the same method was employed in the baking business as was employed in the dry cleaning business to which I have referred. I am acquainted with a gentleman who, during the depression, established himself in a small way as a baker. He worked hard, he showed initiative and by the late 1950’s had made such a success of his business that he was able to import some special baking machinery from America. He was proud of that business. He told me: “It is part of my life. It is something that I have built up from nothing.” He had hardly used the new machinery when he was interviewed by the representatives of a large big-business bread baking organisation. They said to him: “ We are very impressed with your business and are prepared to make you an offer of so much for it”. He said to me: “ The offer was not entirely unreasonable. It was something like what the business was worth.” But he said to them: “No. This has been part of my life. I started with nothing and I have built up this business. I am proud of it. 1 do not know how I could live without it.” They said to him: “ Well, if you do not sell your business to us we will establish a bakery business in (he same area and will undercut your prices to such an extent that you will go out of business “.
I have spoken to men in the grocery trade who have had exactly the same proposition put to them by powerful organisations which are determined to smash competition in certain areas and to establish themselves in a monopolistic position. Those whom they choose to attack are individual proprietors, people who began in business as a way of life and who have established something that is part of their life and of which they are proud. But the big organisa tions have told them: “ We will smash your business by undercutting your prices unless you sell to us “. I regard that as a most reprehensible business practice.
– How can it be averted?
– By taking action on the lines of the amendment which the honorable senator’s own Party has proposed. I do not know whether this is the best method of doing that. There may be others. If they exist, I would be glad to hear of them but, so far as I am concerned, this proposed amendment covers something that I regard as a most iniquitous feature of the business life of the Australian community. The proposal is a means of stopping, or at any rate deterring, organisations which, because they are backed by large resources, think they can smash the small man. I am prepared to support it for that reason.
– 1 would not wish to disagree with anything that I heard Senator McManus say. These practices are wrong practices. These practices are amongst the kind of practices the Bill sets out to try to stop. But I would suggest that the Bill as it stands is more likely to stop these practices than it would be if the amendment proposed by Senator Murphy were incorporated. As I understand Senator Murphy’s proposed amendment, it would have two effects. The first effect would be to render practices which ordinary laymen like Senator McManus, Senator Hendrickson and myself consider to be predatory practices, not liable to examination by the Tribunal. Instead, it would require that such practices be taken to a court on a complaint by some person. After a period had elapsed in which the legal processes, like a wounded snake, dragged their slow length along, there would finally be a judgment by the court on whether these practices were restrictive practices and whether they fell, or did not fall, within the prohibition. Indeed, some of the lines are so blurred that, just as was the case with the Australian Industries Preservation Act and just as we have been told is the case in the United States, courts are very reluctant to actually record convictions, bound as they are by legal processes.
Suppose that a court, after this process, did record a conviction. The company or the individual charged with carrying on the practice in question would then be liable to a fine not exceeding £5,000. That is the maximum penalty to which the company or the individual could be subjected. Of course, this would not be a very great deterrent in the case of a very large company or a very rich individual. I do not know of anything which would prevent that company or that individual from embarking, perhaps in a slightly different way, on the same kind of practices, thus requiring another court case and another penalty at the end of it not exceeding £5,000. These are the kind of deterrents the amendment proposes.
However, if the matter were taken to the Tribunal and the Tribunal, having examined it, decided that it was reprehensible and against the public interest, the Tribunal, without having to record a conviction or a penalty, could prohibit the practice. In that case, if the company or the individual carried on with that practice, the company or the individual would be in contempt and would be liable to far more than a fine of 10,000 dollars. They would be liable to a fine, goal or sequestration of assets. I believe that would be a far greater deterrent to these practices and that far more practices would be held to be against the public interest than would be the case if on every occasion a court had to record a conviction and impose the maximum penalty of a mere £5,000.
Question put -
That the words proposed to be inserted (Senator
Murphy’s amendment) be inserted.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority . . . . 1
Question so resolved in the negative.
Proposed new clauses negatived.
Clause 35. (1.) Subject to this Part, an agreement is an examinable agreement for the purposes of this Act if (either as originally made or by reason of a subsequent variation) it is an agreement the parties to which are or include two or more persons carrying on businesses that are competitive with each other and each of which is a business of the supply of goods or services, and is an agreement under which restrictions of any of the following kinds are accepted by one or more of those persons in relation to any such business, namely restrictions in respect of -
.- I move-
After sub-clause (1.) insert the following subclause - “ (1a.) Without prejudice to the application of the last preceding sub-section in relation to the constitution of a trade association, the constitution of a trade association is an examinable agreement if it contains restrictions with respect to the right of persons to become or remain members of the association.”.
The grounds for the amendment are that this is one of the Barwick proposals and that it is a sensible proposal. There is a vast number of trade associations. It has been estimated that 600 or 700 - perhaps more - of them operate in this country. Persons in the trade associations have an interest in remaining in them. Other persons have an interest, perhaps, in becoming members of the associations. The purport of this amendment is that agreements which contain restrictions on the rights of persons to enter or to remain in them should be examinable by the Commissioner and the Trade Practices Tribunal. We say that this ought to be accepted. It is a principle that has been accepted in relation to other associations. The Minister has referred on a number of occasions to the Conciliation and Arbitration Act. It is notable that one of the principles running through that Act is that in relation to organisations, whether they be of employers or of employees, one of the matters which may be looked at in order to ascertain whether the rules of such a body are in conformity with the Act is the restrictions upon the rights of persons to enter or remain in the organisations.
– Why is this not covered by paragraph (a) of clause 35 (1.)?
– Do not those terms and conditions referred to in clause 35 (1.) (a) relate really to dealings, and not to being a member of an association? If one takes a very tenuous view, one might find a connection and say: “There is a relationship. There is a restriction in respect of the terms or conditions upon another matter, upon or subject to which dealings may be engaged in “. But one would be stretching a very long string, I think, to achieve this. I should think that it is only barely possible that one might say that it comes within clause 35(1.) (a).
The purpose of the amendment is to allow an association to be looked at if there are restrictions upon entering it or remaining in it. The principle was made clear in relation to organisations of employees. The Commonwealth Industrial Court has a right to order the admission of a person who seeks to become a member of an organisation of employees. It exercises a strict supervision over the rules of trade unions in order to see that persons are not improperly expelled from them.
Supervision is exercised by means of the Act over all rules which apply to entering or remaining in an organisation. Here are similar kinds of associations of persons engaged in commerce or industry. Surely it is modern public policy that the terms of such bodies in relation to persons entering or remaining in the associations ought to be open to examination. This means that there is protection for those persons who might otherwise be kept outside the magic ring. It means that where a trade association has special advantages for its members in some section of industry, it ought not be able, unreasonably, to keep other persons out and, in effect, exercise a monopoly. We commend the amendment.
.- It is interesting to note that so far almost the entire debate has been conducted by Q.C.’s or other lawyers, except for the Minister and Senator McManus. The teeth of the Bill are contained in the provisions that commence at Part IV, which deals with examinable agreements and practices. The interest of the practical person in the Bill starts at that point. For several years, we have had an opportunity to study the Government’s views on restrictive trade practices, and about six months ago the Attorney-General (Mr. Snedden) was kind enough to give us a preview of this Bill.
– Is the honorable senator speaking to the amendment?
– Yes, I am speaking to the amendment moved by Senator Murphy. I am interested in the Bill from a practical viewpoint. I believe there are many areas in which legislation such as this could be of value. I believe that the 40-odd amendments that were made in another place have negatived, in many ways, the valuable contribution that the legislation could make in this field. I would like the Minister, when he replies, to tell me what area of agreements will be open to examination. In trade generally, there are very few such agreements. I am unable to agree with Senator Murphy on this amendment, which is directed at trade associations. My view is that trade associations, when conducted on a proper basis, are of great value. In Senator Murphy’s own profession there is, in effect, a trade association, which this amendment could perhaps affect. Clause 35 (1.) refers to goods and services. Services provided by members are the basis of some trade associations. What happens to a member of the legal profession, for example, who is willing or anxious to charge fees below those in the prescribed scale? In my view, the amendment could apply to a case of that sort, because the constitution of an association would be examinable if it contained a provision that one should not charge below the specified fees. In trade associations and professional associations the fees or prices are usually worked out on the basis of the costs involved and a reasonable figure is decided by those who control the associations. I certainly cannot agree to the amendment.
.- The reason for this amendment is that we believe there may be some conditions or restrictions in the constitutions of trade associations which are not already caught up by paragraphs (a), (b), (c), (d) and (e) of clause 35(1.) We want to make it plain that where the constitution of a trade association contains restrictions with respect to the rights of persons to become or remain members of the association, that makes it an examinable agreement. The best support of all for this view can be found in the study given to the position by the former Attorney-General, Sir Garfield Barwick. On 16th August 1963 he delivered the G. L. Wood Memorial Lecture, in honour of the late Professor Wood, at the University of Melbourne. He made some pertinent remarks about the activities of trade associations and about some of the conditions that are attached to membership. I would like to quote briefly from his address.
Sitting suspended from 5.30 to 8 p.m.
– When the sitting was suspended, I was referring to some remarks of the former Attorney-General, Sir Garfield Barwick, made in the course of his G. L. Wood Memorial Lecture delivered at Melbourne in August 1963 and relating to conditions which some trade associations placed upon membership. In that address, he said that he had been examining certain information that had come to the AttorneyGeneral’s Department - and many examples had come to hand - which suggested injury to individuals with no overall benefits to the public, and he went on to say -
To mention but one or two, traders found themselves unable to obtain supplies because they were not members of an appropriate association; and could not obtain membership of the association, not for any reason connected with personal suitability or financial responsibility but for some reason, e.g. that their turn-over was not large enough, designed to keep the membership of the association exclusive and limited. Lately, a further instance was publicly disclosed in which the rules of an association precluded the entry to its ranks of a migrant until he had been ten years naturalised. Exclusive dealing arrangements in a variety of forms constituted a self assessed tariff protection. Public authorities’ attempts to obtain their requirements by public tender were held up to public mockery by the submission of identical tenders . . .
It is for reasons such as were given by Sir Garfield Barwick that we feel it is important that the constitution of trade associations be examinable if they contain restrictions on the right of persons either to become or to remain members of an association. We think it necessary to add this separate clause to put the matter beyond doubt and in any event to bring our minimum concepts of the Bill into line with the scheme as originally proposed by the former Attorney-General.
, - First let me say that in the Government’s view, the proposal that the Opposition has put forward is not covered by clause 35(1.) (a). We do not believe it gives the effect the Opposition seeks to achieve. On the other hand we do not seek to achieve the same effect. We do not desire to prevent a trade association or an organisation of people engaged in any particular trade from choosing whom they will allow into the organisation and whom they will not. What we are concerned with is the matter that concerned Sir Garfield Barwick and that is what the association does. If an association takes restrictive action; if it does things which Senator Cohen has mentioned; if it prevents people who are not members of the association from getting supplies or if it goes in for methods of exclusive dealing, we are interested in these things and they are covered by the Bill. These are matters in which Sir Garfield Barwick was interested and which he wanted the Bill to cover. If I might put it in a nutshell, we are not interested in who belongs to an association.
What we are interested in is what the association does. This Bill will prevent an organisation from stopping supplies to people outside it or from using restrictive practices against the interests of the people.
Question put -
That the words proposed to be inserted (Senator Murphy’s amendment) be inserted.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority . . . 5
Question so resolved in the negative.
Clause agreed to.
Clause 36. (1.) Subject to this Part, practices of the following kinds are in this Act referred to as examinable practices: -
.- I move -
In sub-clause (1.), paragraph (a), leave out “, by any express or implied threat or promise,”.
I shall put the position on behalf of the Opposition shortly in relation to this amendment. The clause deals with the practice of obtaining discrimination in prices or terms of dealing. It deals with the case of a person inducing or attempting to induce another person to accept terms as to prices or conditions that are more favourable to the person engaging in the practice than those upon or subject to which the other person is willing to supply goods of the same kind and quantity to business competitors. The clause refers to inducing or attempting to induce by any express or implied threat or promise.
I invite honorable senators to consider the case of a very large retail store with branches in every State in the Commonwealth. A purchaser looking for a good deal from a supplier on behalf of such a chain store is able to approach a supplier and secure favourable discounts which are not given to other persons who purchase from the same supplier. The clause deals only with cases where representations on behalf of a buyer - and I am thinking here of a large chain store with branches in every State - are made by threats or promises, express or implied. The case made by the Opposition is that a threat or promise is not necessary in that circumstance. If a buyer for a large organisation with national retail outlets approaches a manufacturer, he has only to say, to obtain favourable discounts: “I am from Coles,” or “ I am from Woolworths.” There is no need for the buyer to offer any threat or promise. The mere size of the customer’s organisation is sufficient to persuade the supplier to offer favourable terms. We want to make it clear that, irrespective of whether there is a threat or promise, express or implied, it is the obtaining of discrimination in prices or terms of dealing of itself that should be an examinable practice. That is the short submission 1 wish to make on behalf of the Opposition.
– I propose to vote for the amendment moved by Senator Cohen because in the discussions that I have had with representatives of small business organisations and with proprietors of small businesses, they have told me that in many respects discount discrimination is the biggest weapon monopoly is able to use against them. Therefore I support the proposed amendment.
– The clause as it is printed and presented to the Senate deals with somebody who is buying goods. It provides that it is an examinable practice if a person who is in the market to buy goods seeks to obtain a lower price from a supplier by the use of threats or promises to the supplier, irrespective of whether the threats of promises are overt or implicit. That is the significant part of the clause. It is an examinable practice if a purchaser says to a supplier: “ Unless you do this, I threaten you with that. If you do that, I promise to do something else for you.” If the proposal of the Opposition is adopted and the words requested to be omitted are omitted, the clause will provide that even if there is no threat or promise, it will be an examinable practice if a purchaser seeks to get a lower price from a supplier. The Government would not agree with that proposal for one moment.
.- Do I understand the Minister correctly to say that it would be an examinable practice for a purchaser to say to a supplier that he is willing to pay cash for goods which are usually sold by a supplier on 60 days terms, and seeks an advantage because he is paying cash? Under the terms of this clause it seems to me that that practice would be excluded from examination. I certainly oppose the amendment moved by the Opposition.
– The answer to Senator Webster’s question is that if a purchaser offers cash and a seller wishes to accept cash, there is nothing in the clause as it stands to prevent the seller accepting cash.
– But at a lower price.
– That is a matter between buyer and seller. It is not an implied threat if a purchaser says: “I will buy something for cash, instead of on terms, but I would like you to lower your price because I am paying cash “. It is not a threat to retaliate against the supplier if he does not supply the goods. It is not a promise. It is a business offer.
Question put -
That the words proposed to be left out (Senator Cohen’s amendment) be left out.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority . . . . 1
Question so resolved in the negative.
.- I move -
After paragraph (a) of sub-clause (1.), insert the following paragraph - “ (aa) in the supply of goods or services, knowingly discriminating, directly or indirectly, against competitors of the purchaser in that any discount, rebate, allowance, price concession or other advantage is granted to the purchaser over and above any discount, rebate, allowance, price concession or other advantage that is available to such competitors in respect of a supply of goods or services of like quality and quantity; “.
This amendment deals with the other side of the penny from that which the Committee has just discussed and voted upon. Paragraph (a) deals with purchasers; it contemplates a situation in which a purchaser obtains discrimination in his favour from a supplier. The paragraph that we now desire to have inserted deals with the supplier. It operates against a supplier who knowingly discriminates directly or indirectly against competitors of the purchaser. This amendment is patterned directly on a similar provision in the Canadian combines and restrictive practices legislation. It is meant to operate against the practice of discrimination itself. A person in the business of manufacturing and/or supplying to purchasers would be inhibited by the operation of this provision from giving favorable discriminatory treatment. We again instance the large chain stores, the large emporiums, the great collections of supermarkets that operate in this country, in relation to the small business man, the proprietor of the corner store, about whom Senator McManus was speaking last night.
– The battler.
– Yes, the battler - the small person who has to pay more to the supplier because he cannot compete by buying in great quantity. Obviously, it is desirable that prices be kept down rather than up. We want to ensure that the person who is able to supply in very large quantities to the very large purchaser should not use that capacity to supply in a way that will discriminate against the small man - the battler.
– As Senator Cohen said, whereas earlier we were dealing with buyers, now we are dealing with sellers. The object of the amendment is to say to a seller: “ You must not discriminate in the discounts that you give to buyers “. If this amendment were passed, it would prevent a seller of goods from giving a discount to a firm that he thought was a better credit risk than another firm or from giving a discount to a firm with which he had dealt for over 20 years as compared with a firm that had just begun to deal with him. Such a provision would be an unwarranted interference.
.- I am opposed to the amendment, but 1 cannot accept the view that has been put forward by the Minister. In my view, if the amendment were agreed to it would not prevent the vendor from discriminating in the giving of discounts. It would only render that practice subject to examination by the Tribunal and the Tribunal would then say whether or not the discrimination was contrary to the principle contained in the Act. That is to say, it would determine whether it created a public detriment. I simply rise to put the record straight as to why I shall vote against the amendment.
.- I should like the Minister to state whether, provided the buying rate was the same to all parties, if one article was sold at a certain price, 100 were sold at a lower price and 1,000 at still another price, that would be an examinable practice.
– I am advised that, if there is discrimination as between people who are buying, it would become an examinable practice. If a seller were to say “I will sell you 10 articles at a discount of £X, I will sell you 100 articles at a bit bigger discount, and I will sell you 1,000 articles at a bigger discount still “, and if that scale of discount was the same to all purchasers, that would not be knowing discrimination. I have not had time to consult my advisers properly but, as a matter of semantics, I think that what Senator Wright said probably is correct. The proposed provision would not necessarily prohibit a man from offering a better discount to a buyer who was a good credit risk, but but it would make him liable to be haled before the Tribunal if he did offer such a discount. That is the commonsense point of view.
.- Many sellers would like to see a provision like this inserted, because they are in the position today of being stood over by the buying representatives of the big organisations and the chain organisations for all kinds of special discounts which are not part of the ordinary framework of business. Anyone who has examined the situation knows that to be so. These buyers are big; they have the power. They stand over the seller and demand all sorts of things which, in my opinion, the proposed provision would do something to stop.
Question put -
That the words proposed to be inserted (Senator Cohen’s amendment) be inserted.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority .. .. 1
Question so resolved in the negative.
.- by leave - I move -
The amendments deal with the omission from the Bill of a practice known as full line forcing. It has been noted by a number of learned persons who have commented on the Bill that this is one of the surprising omissions from it. Full line forcing, in simple terms, means that where a supplier sells goods of one type to a purchaser, he insists upon the purchaser taking the rest of his range whether he wants these goods or not. It may be in the field of plumber’s supplies. The supplier insists that if the purchaser takes one particular article, he has to buy all of his other requirements from the same firm, as a condition of trade. We get it in another form in the tied houses, in the oil companies and so on.
The Bill does not deal with that position. The clause under discussion deals with a variation of that position, but not with the whole of it. It deals with the situation where a person purchasing from a supplier is forced to take another person’s product. In other words, the supplier says to the purchaser: “ I will sell you tyres only if you take some other supplier’s batteries or accessories “. That is a discriminatory practice and it is a restrictive practice. So far as this clause covers that position, it is to be supported, but it stops short of dealing with full line forcing. It does not deal with the situation where the supplier says: “ You have to take the lot, whether you want it or not, or you get nothing “.
– AH or nothing.
– Yes. That seems to be a quite unconscionable practice and to be just as much requiring to be dealt with by this Bill as is the practice of forcing another person’s product that has already been made examinable by clause 36(l.)(b) in the form in which it now stands.
.- 1 would appreciate it if the Minister could make the point clear that, in the instance of the particular line of trade that Senator Cohen has mentioned, it will be a nonexaminable practice provided the normal terms of trade are observed. I do not know of any practice that does not operate on the basis where the goods are forced or put out in a line, that the supplier says to the purchaser: “ You can take my first product provided you take the balance”. There would obviously be a credit trading arrangement in 100 per cent, of those instances. In respect of the practices referred to in clause 39 (4.) (b), I suggest that the Minister make the point clear that provided any practice, no matter what it may be, has a credit factor involved in it, it is not an examinable practice.
.- Before the Minister refers to the matter raised in relation to clause 39 (4.) (b), I submit that the Committee will want to consider the question on the basis that the clause remains in the Bill and also on the basis that it goes out of the Bill. When we come to consider the clause, I will need to be convinced that it does not remove the whole foundation of this measure insofar as it provides for exemption in respect of practices. I make only a passing comment upon that point to indicate my concern about it. To give immunity from examination to practices that are associated with a term or condition imposed in connection with the lending of money or the granting of credit, does not seem to me to be justified. But I will be interested to hear what is said in explanation of it to my colleague, Senator Webster, on the basis that the clause will remain part of the Bill.
I wish to refer to clause 36 (1.) (b) which is the subject of the amendment from Senator Cohen. I am quite unable to see how in any sense the amendment that he has advanced can improve or strengthen this clause or, indeed, alter the basic description of the practice that is referred to therein and which is thereby made an examinable practice. I rise in relation to that point only to bring to .the attention of the Committee my view with regard to the description of this practice. It is all very weil to have these high sounding names by which we abuse a particular method of trading, but they do not get us very far. It is a question of satisfying ourselves that there is in the description of the examinable practice a sufficient basis to enable the Trade Practices Tribunal to work and inquire whether a particular practice in which A, or B or C, or A, B and C are concerned, is operating against the public interest. It is then that the Tribunal does its work by way of order.
It is revealed now that when the Labour Government came into office in England in 1948 it passed the Monopolies and Mergers Act. The Conservative Government adopted a new line in 1956 and passed the Restrictive Trade Practices Act. The Wilson Labour Government passed through the House of Commons in August of this year the Monopolies and Mergers Act. It may deserve a passing comment in view of the statement that there is a substantial section of that Act enabling the British Board of Trade to deal with the transfer of a newspaper or newspaper assets to a newspaper proprietor. So mergers of newspapers will be stopped specifically. That illustrates just what a conception the Wilson Government has brought to this field of restrictive trade practices legislation. The Wilson Government has gone back to the old commission of the Monopolies and Mergers Act 1948 even though the Conservative Government added to its Restrictive Trade Practices Act the Resale Prices Act 1964 in which it legislated specifically to outlaw the retail price arrangement designed to maintain retail prices. This new legislation of the Labour Government in England does not provide for a tribunal. The legislation is controlled by the Board of Trade. The Editor of the “Australian Law Journal” of October 1965 wrote -
The Act specifically adds to the British system of control of market power. It does not accomplish this by an enlargement of the jurisdiction and powers of the Restrictive Practices Court and Registrar of Agreements, under the Restrictive
Trade Practices Act 1956. Instead, it extends the power of the Board of Trade to refer monopoly situations and other practices to the Monopolies Commission for its report, under the Monopolies and Restrictive Practices (Inquiry and Control) Act 1948. And it gives the Board new powers to refer mergers to the Commission. In addition, s.3 gives the Board extensive powers to act on the Commission’s reports to prevent or prohibit a wide range of business conduct, including merger, and, most strikingly, to provide for the division of business enterprises.
The reason I bring this to the attention of the Committee is to show what a dynamic field with a high political content is involved in this legislation. What I am suggesting is that Senator Cohen’s amendment does not really add anything to the purpose of the original provision that is set out in clause 36(1.) (b) and that there is no real purpose to be achieved by his proposal.
– Perhaps I should say a few words on this amendment as it has been circulated in my name. Senator Cohen has been kind enough to move it. If members of the Committee will come back to the clause under consideration they will see that the policy underlying the clause is that a person who is purchasing goods should not be required to purchase goods he does not want either from the particular supplier or from anybody else. That is the policy and it is consonant with the concept of legislation against restrictive trade practices. If we are to have an efficient economy we do not want a purchaser of goods to have to buy things he does not want from a person from whom he wants to buy other things and we do not want him to be forced to buy goods from someone else. This is common sense.
– Can the honorable senator illustrate that by an example in the marketing operating today?
– I can.
– Of course. There are the petrol stations about which Senator Webster is so concerned. There are those persons who are tied up with the great oil companies and who, in order to obtain supplies of petrol and oil, are forced to take other things from the oil companies.
– Such as?
– They have to buy other goods such as tyres, motor accessories and so forth which they may or may not want. They are told in many cases what they have to take and how much they have to take. This brings us back to this proposal. What the clause deals with now is simply this: It makes examinable the practice of requiring a purchaser to acquire some of his requirements from a person other than the supplier of the goods which he really wants. This is all right. We are not objecting to that provision. We are saying that it does not go anywhere near far enough. For a start, it speaks of what is required. That is not enough. Very often a purchaser is made to take goods which he does not require at all. Why should the word “ requirements “ be used? That is the first part of the amendment. We say: Delete the words “ all or a part of his require ments.” We do not want a purchaser to take goods that he does not want. Why should this provision be restricted to “requirements”? Why should it not apply to the situation where a man is made to take goods that he does not want at all? He does not want to deal in these kinds of goods. He does not wish to sell them, use them or have them. That is a worse vice, surely, than the one which makes him take his requirements. How can anyone possibly have an objection to this? Do Government senators stand for the position that men should be forced to take goods that they do not want at all and that the supplier can stand over them and say: “ You take this whether you require it or not”? Is that what the Liberal Party stands for?
In the next part of our amendment we say that not only should we make it an examinable practice if a person is required to take goods from another person or a third party, but also it should be examinable if he is made to take goods which he does not want from the supplier of goods which he does want.
– I must freely admit that I do not understand the Opposition’s objection to this clause as it stands. I believe that, in fact, the amendments would weaken the operation of the clause. We have heard from Senator Murphy a good deal about somebody being forced to take something that he does not require. But if he does not require that thing, it is not one of his requirements. 1 believe that the clause as it stands expresses what we are seeking to achieve much better than it would if the words to which the Opposition objects were left out.
Let us take the example that Senator Murphy used. A petrol supplier says to the proprietor of a service station: “ I will sell you petrol; but you also need tyres of some kind. In order to get my petrol, you must take all of your tyres, or half of your tyres, or one-third of your tyres, from Smith & Co,” - that is, another company. That is examinable under this Bill as it stands. If the petrol supplier says to the proprietor of the service station: “ You have to take all your batteries, or half of your batteries, or onethird of your batteries from Smith & Co.”, that is examinable if taking those things is made a condition of the supply of petrol.
The clause makes it clear that if the petrol supplier says to the proprietor of the service station: “ We will supply you with petrol only if you take all of your batteries from us,” that is wrong and examinable. It is also wrong and examinable if the petrol supplier says to the proprietor of the service station: “ We will not supply you with petrol unless you take from us half of the batteries and tyres that you want.” It seems to me that the clause as it stands is stronger than it would be if the amendments were agreed to.
– Senator Wright asked whether anybody could give him particulars of a case of the kind thai is envisaged in the amendments that have been moved by the Opposition. As honorable senators will know, some years ago there was great concern in the community about what might be termed yellow and pornographic literature which was being imported into Australia. There was a great deal of objection to it. The Victorian newsagents’ association, to my knowledge, was so concerned about the yellow and pornographic literature which its members were being called upon to handle by one of the biggest Australian firms in this field - the firm has branches in Australia and New Zealand - that it came to the conclusion that it would ask its members not to handle that literature. It considered that the literature was of such low and detestable character that its members should not be permitted to handle it.
But then the association was placed in the situation that this firm, which has a very large say in the distribution of publications to newsagents in Australia and New Zealand, informed it that, unless its members were prepared to purchase supplies of this yellow and pornographic literature, they would not be supplied with their requirements of the ordinary reputable journals that they were handling. There was a situation in which people did not wish to take certain literature and it was forced on them by their being told that they would not be supplied with reputable publications unless they took this stuff which so revolted the members of the association that they did not want to distribute it. Although they regarded it as being unfiit for human consumption, they were compelled to put it on their counters by a threat that they would not be supplied with other literature.
– I accept the invitation to give a practical instance of compulsion to purchase. This case came to my notice only last week. The man who complained to me is the owner of a pickle manufacturing firm. He has to purchase pickle jars. There is only one source of supply of glass jars. I believe that that is the position in most States. This pickle manufacturer was purchasing his glass jars from the one source of supply. But he had a contract with another company for the purchase of the tin lids. When he sought the renewal of the supply of glass jars, he was informed that he could not purchase any more of the same size as he had purchased previously. That meant that the lids that he had purchased were useless.
He pointed out that his competitor was still purchasing glass jars of the same size. The company said: “ Yes, we are prepared to continue to manufacture glass jars of that size for that purchaser because he is purchasing his lids from us; but we are not prepared to continue to manufacture glass jars of that size for people who purchase their lids from other places”. So he had to transfer his order for lids to the company; otherwise his jars and lids would have been of different sizes. That meant that he could make no further contracts with the people who had been supplying him with lids in the past.
That is one instance in which it was necessary for a man to transfer his purchases to a monopolistic firm in order to obtain all his requirements. What I do not know is whether that will become an examinable practice under this legislation, or whether these amendments would cover it. This is one of the matters that badly need investigation. I am hopeful that these amendments will bring examples such as the one that I have quoted within the ambit of examination under this legislation.
– With reference to the point raised by Senator Cavanagh, I think it is correct to say that the practice that he mentioned would not be an examinable practice either under the clause as it stands or under the clause as it is proposed to be amended. It has not been the design of the Government, for example, to prevent a manufacturer of glass jars from saying to a prospective buyer of glass jars: “ We will sell you glass jars, but only on the condition that you buy the lids for those jars from us “. This Bill deals with, and makes examinable, the practice of a manufacturer saying to a buyer of glass jars: “ We will sell you glass jars, but only on the condition that you buy your lids from Smith & Co.” - that is another firm. This Bill is not designed to prevent a manufacturer selling two lines and requiring that both lines be bought from him. It is designed to prevent a manufacturer who sells one line demanding that another requirement be bought from a particular person.
.- Notwithstanding the attitude taken by the Minister for Works and by other honorable senators on the Government side of the chamber who have spoken on this clause, I have not the slightest doubt that the amendments that we are proposing would strengthen the clause. I say that because our amendments would add another situation to that which is already covered by the clause and would improve it in that respect. As Senator Murphy pointed out, as the clause stands at present, it is only where the goods or services form all or part of a person’s requirements that the practice is examinable.
I ask honorable senators to follow me as I read the clause again. If they do that,
I think they will see why we suggest that our amendments would strengthen the clause. Paragraph (b) of sub-clause (1.), as amended, would read as follows -
Although this is not part of the amendment, 1 might add there “ whether they form part of his requirements or not “, because I believe that that is the difficulty that the Government faces in opposing these amendments.
I conclude my remarks on this clause and the proposed amendments by referring to the description of this practice of “ full line “ forcing that is contained in a document that was published by the former Attorney-General, Sir Garfield Barwick. It contains what is described as -
A table of the basic forms of practices which have come directly under the notice of the Commonwealth Government.
If all that we have said in support of the amendment does not make it clear, then I would suggest that the words of the former Attorney-General do. He describes practice No. 15 in this way -
The supply by the manufacturer of a product on the condition that the reseller takes other products of that manufacturer - sometimes the manufacturer’s “ full line “ of products - whether the reseller wants the other products or not; or-
He then puts the alternative position. What I am about to say now is in the clause and what I have just said is out of the clause. The alternative position is - the supply by the manufacturer on the condition that the reseller buys other products from other designated manufacturers.
As I have said, the alternative is now covered by the clause. The more important part - that is, insisting upon the full line forcing of the manufacturer’s own products - is not covered. Sir Garfield Barwick’s publication states -
There is possible detriment to the public interest in so far as resellers are inhibited from getting their supplies from other manufacturers. Agreements under which a reseller is required to buy supplies he does not want in order to get supplies he does want tend to distort the market by creating an artificial demand.
I urge upon the Committee that view, which was apparently the view held by the former
Attorney-General. Once again it seems to me that the Government has retreated from the thinking of Sir Garfield Barwick and has watered down the legislation.
.- I would like the Minister to clear up one point in relation to clause 36(l.)(b). I put this proposition: A manufacturer says to a client: “ You have £1,000 credit with me. That is the limit of your account. I will grant you goods worth £1,000 on a 30-day term “. That or something on similar lines would bc the position in 99.9 per cent, of transactions. Then the manufacturer says to the client: “ I have a line of articles that I wish you to take. Besides taking those, it will be necessary for you to take six other lines which I handle and which form part of your normal stock “. I suggest to the Committee that that practice is not examinable. I referred previously to clause 39, with which we shall be dealing later, but, if I may, I shall read it to the Committee. Sub-clause (I.) is in these terms -
In determining whether n person or combination has engaged, is engaging or proposes to engage in an examinable practice, regard shall not bc Iki j to any act or thing that is, or is of a kind, specifically authorised or approved by, or by regulations under, an Act.
Sub-clause (4.) (b) refers to an unexaminable practice, namely, a term or condition imposed or to be imposed in connection with the lending of money or the granting of credit.
– What if the practice has nothing to do with those aspects? Does the honorable senator think it should be examinable?
– I am not stating whether I think it should be examinable. I have said that 99.9 per cent, of the transactions that take place in Australia today between a principal and an agent are on a credit basis. That is an unexaminable practice according to the Bill. Paragraph (b) relates to - a term or condition imposed or to be imposed in connection with the lending of money or the granting of credit to a person for the purposes of the carrying on by him of a business, being a term or condition by which the person receiving the money or credit is required, while any of the moneys lent are unrepaid or any of the credit granted is being availed of, to acquire from the person from whom he receives-
– To what clause is the honorable senator referring.
– I am referring to clause 39 (4.) (b).
– We are now dealing with clause 38.
– 1 know, but clause 39 has particular reference to the matter, we have been discussing. We have spent half an hour talking about what are likely to be examinable practices in a manufacturer forcing his product, and I am pointing out that by a later clause many of those practices will be unexaminable
– I can only repeat briefly what 1 said before on behalf of the Government about this clause, namely, that I think it is better than the proposed amendment because it covers the position better. I believe I follow the argument which the Opposition is putting up. The Opposition claims that it should be an examinable practice if anyone supplying goods to a service station says to the owner of that service station: “As a condition of my supplying you with petrol, you must buy from me anything else that you sell “.
– Whether he wants it or not.
– That is righta demand that he buy something whether he wants it or not. That would be examinable if the clause were amended as proposed. But it would be perfectly open to a supplier of petrol to say to the manager of a service station: “ I will not demand that you buy anything. I will supply you with petrol but if you have a requirement for batteries now or in the future you will have to buy Mr. Smith’s batteries.” As the clause stands, this is prohibited because that would be a requirement when the petrol station owner required batteries. It would be examinable if anyone said to the service station owner: “I have sold you petrol without making any conditions. You now have a requirement for batteries so you must buy all or part of your requirement from a particular firm.” The clause as it stands prohibits that and I believe the clause is better than the proposed amendment.
.- I point out to the Minister that what he has just put to the Committee is a good argument in favour of accepting the amendment. He said that if goods form part of the purchaser’s requirement the practice is examinable, but if they do not form part of his requirement - if they are something he does not want - then this clause as it now stands docs not deal with the problem. The practice is not examinable, so the supplier can insist to his heart’s content upon the purchaser taking things that he does not want. But if it turns out to be part of his requirements, the Minister says that it is examinable. Irrespective of whether it is part of the purchaser’s requirements, the practice is restrictive and objectionable. All we are trying to do is to breathe some reality into the clause, which it seems to lack at the moment.
.- I move -
At the end of sub-clause (1.) add the following paragraph - “ (d) imposing resale price maintenance conditions.”.
This is one of the most important parts of the field of restrictive trade practices, and there is no reference to it in the Bill. It may be, as has been argued elsewhere, that what is called horizontal resale price maintenance may be covered, in that there is some kind of collective agreement between resellers and in that way it would be caught under other provisions of the Bill. But under this Bill as it stands there is no protection against what is technically described as vertical resale price maintenance. In other words, if a supplier of goods determines the price at which they are to be sold, there is no cover at all in the Bill. That has been conceded by the Attorney-General (Mr. Snedden). This means that the proposals that were originally put to the Parliament, and elsewhere to the people, are not being carried out in this Bill. It means that the Bill will not deal with the resale price maintenance that was dealt with by the New Zealand Government in October of this year. It will not go as far as the Conservative Government in the United Kingdom did when it was in power several years ago.
– In 1964.
– In 1964, as I am reminded. Here is a most important field of restrictive practice which is being excluded from the operation of this Bill. Why should it be excluded when it is so important? It is extremely important here. There is a great deal of price fixing by suppliers in Australia, certainly more than could exist in the United Kingdom. In the United Kingdom, it is said, the effect of the Act that was passed in 1964 has been to lower prices. There has been a significant effect. We ought to get such an effect here. We know from our own experience how the prices of so many goods are fixed by the suppliers of the goods. Surely that ought to be an examinable practice. That is all that we are asking. We are not even asking that it should be outlawed. All that we ask is that it be looked at to see whether it is in the public interest. Is that too much to ask, when there is price fixing in this community by private persons not responsible to anyone but themselves. They are concerned - rightly so, as the law stands - only with their own interests and profit for themselves, if they are private persons, or profit for their shareholders if they are companies. They act in their own interests but we are supposed to be acting in the public interest.
Is it too much to ask that this restrictive practice which tends to force up prices be examinable? Surely, if the Government is honest about this legislation, if it is intended to work and if this examination procedure is to operate in the way in which the Government claims it will operate, why should not these resale price maintenance arrangements be examined - not outlawed - to see whether they are in the public interest? Is that too much to ask? The original Barwick proposals put before the Parliament in December 1962 covered this very subject matter. We ask that this matter should be dealt with. Otherwise the Government will be proving what we have put in this Parliament, namely, that the framers, proponents and supporters of this Bill are doing their utmost to render it ineffective.
– It is not too much to ask that when a group of people or an association gets together in order to insist on resale price maintenance this be an examinable practice. Indeed, T suggest that this has already been done in clause 35(1.) (a).
– I said that. I am talking about the imposition by the supplier of what is called vertical price maintenance. That is not covered.
– The honorable senator said that. Let me underline it. This leaves under discussion whether an individual manufacturer of a line, not in conjunction with any other manufacturer at all, should or should not have the right to say to a retailer: “ I do not want you to sell my manufacture under a certain price. If you do that, I will not supply you with my manufacture.” In these circumstances, he has to take the full risk from competition by all of his competitors, because if he joins with other competitors for resale price maintenance that will be examinable, as Senator Murphy pointed out. Since we are concerned with restrictive practices and with associations getting together in order to hold prices at an artificially high level, I do not think that the object would be served by preventing an individual from taking the risk, in a competitive market, of saying - not in conjunction with others: “ I want my product to be sold at a certain price and I shall supply it only on the condition that it is sold at a certain price.”
– It is all very well to answer this matter by speaking about something that is not really in issue. What we are talking about is the supplier or manufacturer who is himself fixing the prices. Naturally, if we had some very competitive situation, he could not afford to fix prices. Where there would be competitors who would undersell him, the law of life would soon attend to that. We are not concerned with that. We are saying that where there are such arrangements they should be examinable. Why is this necessary in this country? It is because we do not have competitive situations in so many parts of our industry. We in Australia are suffering from a tremendous degree of monopolisation that other countries do not have. We are more monopolised than is the United Kingdom or the United States. So often we have the situation that it is the manufacturer or supplier who fixes the resale price, and there is no competition. We have great industries, like the soap industry, in relation to which it is nonsense to talk about competition.
– And the glass industry.
– -Yes. This is the country of monopoly. How idle it is to talk about competitors. We are seeking a competitive situation. If what is being done is all right, there will be no problem. All we are asking is that it be examined, not that it be outlawed. Why should the Government be opposed to these arrangements being examined? If it is fair dinkum, why should it be opposed to that?
– I should like to intervene in this debate because in the speech of 6th December 1962, in which Sir Garfield Barwick’s principles were stated, paragraph 2 (b) of the list of practices required to be registered includes -
Bilateral and unilateral (vertical) practices involving -
resale price maintenance . . .
In the speech that I made earlier this evening, I referred to the 1964 Resale Price Agreement Act of the United Kingdom Conservative Government. I think Professor Richardson told us in his article that as a result of that Act, it was generally agreed, there had been a reduction of prices of some significance. But my problem in understanding from where the heat of the contention comes in regard to this amendment is: Why is an arrangement such as Senator Murphy says he wants not to condemn but to make examinable not already involved in clause 35 (1.) (a)? I am asking this just quietly, to have light thrown on my eye. Let me read that in its context. It is - an agreement is an examinable agreement for the purposes of this Act if (either as originally made or by reason of a subsequent variation) it is an agreement the parties to which are or include two or more persons carrying on businesses that are competitive with each other and each of which is a business of the supply of goods or services, and is an agreement under which restrictions of any of the following kinds are accepted by one or more of those persons in relation to any such business, namely restrictions in respect of -
– The persons are competitive with one another. I think that is the answer. This is vertical. It is the supplier to the person he is supplying.
– How do you achieve any different effect by adding paragraph (d), which substitutes for the words in paragraph (a) that I have referred to, the words “ imposing resale price maintenance conditions “? The words “ competitive with each another” still govern the situation.
. -I think we have reached this stage of agreement: That persons who supply goods and who band together in order to provide retail price maintenance are already covered, and that practice is examinable. I want to put a further proposition to honorable senators. If they look at clause 37(l.)(c) they will see that if an individual is in such a strong position in the industry that he is able, being more or less in a position of monopoly, to impose retail price maintenance which he would not be able to impose under terms of competition, that, too, is examinable under the monopolisation provision in clause 37. So we have covered the case of suppliers banding together to hold up retail price maintenance, and also the case of the individual supplier who is so dominant in the field that he is not subject to the risks of competition if he holds up retail price maintenance. We do not want to cover the individual who does not band together with somebody else, who is not in a strong position in the field and who has not a monopoly. He is not “ in a dominant position “. He is just an ordinary business man who wants to fix a price which can be considered high or low, according to his business judgment. We want to leave him the right to do so.
– The Minister referred to the monopoly provisions as if they were enough to meet the case. They are not, because they have qualifications on them such that a person has to be dominant over Australia or part of it, and that means a State or Territory. There is a large area between such a situation and the one where you might have an acceptable position. It must not be forgotten that we are simply asking that the arrangements be examinable. When you have a situation where some person is sufficiently strong to be able to impose - these are the words in the amendment - retail price maintenance, surely that should be able to be looked at.
Clause agreed to.
Clause 37 agreed to.
Clause 38 (Exemptions in respect of agreement).
.- I desire to say a few words on clause 38 (e), which says that in determining whether an agreement is an examinable agreement regard shall not be had - in the case of an agreement for the sale of a business - to any provision of the agreement that is solely for the protection of the purchaser in respect of the goodwill of the business;
It may be that there is some other clause which qualifies this provision but, if there is, I have not noticed it. When Sir Garfield Barwick made the statement that I previously mentioned he referred to this question of eliminating goodwill sales, but he was careful to say that there would be eliminated provisions for a goodwill sale that were reasonably for the protection of goodwill. Here we exclude any regard for any provision of an agreement that is solely for the protection of a purchaser in respect of the goodwill of a business. I heard some submissions made by Senator Murphy - this afternoon, I think - to the effect that the whole of this Bill had to be viewed and interpreted against the background of the common law. It is elementary to anybody who has done first year law that the great case that expounded the commmon law rule as to the validity of contracts for the sale of goodwill was the Nordenfelt case in 1894.
Nordenfelt had a very wide business in the manufacture and supply throughout the world of guns and war equipment. He sold out to a company which restricted him from participating in that business in competition with the company - I would like my colleagues to correct me if I am wrong on this - for the rest of his life throughout the world. The court had to consider whether a contract of that sort was reasonable and it laid down the proposition that at common law an agreement of that sort was not binding unless the court was persuaded that the provisions of the agreement restraining the trade of the business, together with its goodwill, were, firstly, reasonably necessary to protect the interests of the purchaser, and secondly, reasonably necessary in the public interest. But here you haveno reference to the reasonableness of the restraint for the protection of goodwill, either in the interests of the vendor or in the public interest. If you sell a goodwill and take an altogether excessively extensive restriction, even though it is for the protection of the goodwill that the purchaser has bought, why is it a part of the law that you exclude that case only where the restrictive clause is reasonably required to protect the interests of the purchaser as a person and to protect the public interests in the sense in which we are using that term in this Bill?
Clause agreed to.
Clause 39. (4.) In determining whethera person (other than a trade association or a person acting as a member of, or on behalf of, a trade association) has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to -
.- I move-
Leave out sub-clauses (4.) and (8.).
The sub-clauses which the Opposition seeks to have left out are concerned with exemptions from the provision for examinable practices. Sub-clause (4.) is the major sub-clause; sub-clause (8.) is simply consequential. It defines leases to include subleases and provides that an owner includes the holder of a lease. Clause 39 sets out a number of exemptions from the operation of the Bill. In subclause (4.) the exemption goes so far as to exclude examinable practices which arise out of - a term or condition imposed or to be imposed by the owner of land, in connexion with the grant of a lease or licence in respect of the land, being a term or condition by which the grantee, or a person deriving rights in respect of the land through the grantee, is, or is to be, required to acquire from the owner (or, if the owner is a corporation, from a related corporation) all or any of the goods or services required in connexion with the conduct of a business on the land;
What does that mean? In itself it means that the tied houses - the hotels which are tied to breweries because the brewery owns the hotel and the licensee is the lessee of the hotel - and all those associatd with similar arrangements, will be outside the scope of the examinable practice provisions of the Bill. It means that petrol stations which are owned by the great oil companies will be entirely outside the scope of the Bill in relation to examinable practices. We know that one of the worst areas of restrictive trade practices is that covering the service stations. It has given rise to so much public concern because persons are tied to the oil companies. The companies money is loaned to them. They are tied up with strict agreements which would not be permissible at all in the United States of America but are allowed toflourish here. We have even had consequential effects of decisions of the Supreme Court of the United States of America with some breaking up of the connections of those in this country not because of our own legislation but because of the indirect effect of legislation of another country. But in Australia this practice goes on. It is among the worst of the restrictive trade practices.
This clause was brought in at the deathknell only a day or so before the matter was debated in the House of Representatives.
The effect is to exempt these arrangements entirely from the examinable provisions. This is absolutely disgraceful; but as though that were not bad enough, when you turn to the next part of the clause, you find that the net of exemption has been thrown even wider. Sub-clause (4.) (b) also excludes examinable practices which arise out of - a term or condition imposed or to be imposed in connexion with the lending of money or the granting of credit to a person for the purposes of the carrying on by him of a business, being a term or condition by which the person receiving the money or credit is required, while any of the moneys lent are unrepaid or any of the credit granted is being availed of, to acquire from the person from whom he receives the money or credit (or, if that last-mentioned person is a corporation, from a related corporation) all or any of the goods or services required for the purposes of that business.
– That would make leasing a service station a form of serfdom.
– Yes, and it will enable the lessee of such a station to be kept in that form of serfdom. But this provision is not restricted to service stations. The ambit is extremely wide. Once you have such a glaring exemption all those who want to practice in this way will move into that area of exemption. They will start granting the leases or the licences. They will start giving credit. They will have any form of credit extended. There is no restriction on them. It might be 60 days credit. We have never seen such a width of ambit as that given here. What is the restriction upon it? The only restriction is contained in the next part of sub-clause (4.) (b) which states - unless the term or condition is imposed or to be imposed in pursuance of an agreement with a person carrying on a business other than the person on whom the term or condition is, or is to be, imposed.
All that is necessary is not to have an actual agreement with a third party. Then this proviso will not come into operation. The words “ in connection with “ have been defined in the courts again and again as words of the widest ambit so if you have the slightest connection it is “ in connection with “. As Senator Webster has said, about 99 per cent, of the examinable practices would come within this area. He virtually said: “ Why waste time talking about these other matters when we have clause 39 (4.) in the Bill? “. How right he is. Leave clause 39 (4.) in the Bill and you can forget prac tically all the rest of the Bill so far as examinable practices are concerned. You do not need to worry about it at all.
What explanation is there for putting this sub-clause (4.) in the Bill? Have honorable senators ever seen an exemption of such a vague and wide import? If an accountant or lawyer could not write some sort of arrangement which would come within this subclause he should be struck off the roll for incompetency. The explanation is obvious. If this clause is allowed to remain in the Bill, the Bill is worthless so far as examinable practices are concerned. One could always get some sort of lease or licence or some terms or conditions in relation to them or the granting of credit tying up a person in connection with these arrangements and so make all the examinable practice provisions absolutely worthless. I ask the Committee and those honorable senators on the Government side who have any regard for this Bill at all as a worthwhile measure to support the amendment and delete this dishonest exemption provision from it.
.- I referred to this clause in my speech during the second reading debate and I also referred to it in my remarks earlier tonight in this debate. I have to be persuaded that the argument that clause 39 erodes practically the whole of the Bill with regard to examinable practices is not sound. The extent of the exception to the examination of practices offered by this clause seems to me to be so wide as to leave very little area upon which the legislation in respect of examinable practices could apply.
I understood Senator Webster to say tonight that with regard to transactions between manufacturer and agent, about 99 per cent, of the business would be done on credit terms. I have little business contact, but I think that his estimate is correct. Paragraph (a) of sub-clause (4.) states that regard shall not be had to - a term or condition imposed or to be imposed by the owner of land, in connexion with the grant of a lease or licence in respect of the land, being a term or condition by which the grantee, or a person deriving rights in respect of the land through the grantee, is, or is to be, required to acquire from the owner (or, if the owner is a corporation, from a related corporation) all or any of the goods or services required in connexion with the conduct of a business on the land;
What is the special virtue of the ownership of land as a basis for the creation of an agreement of this character when dealing with a sound application of restrictive trade practices law? We have outgrown the feudal stage. We have a lingering discrimination in favour of land. If I employ a builder to build a house on my land and say nothing more, 1 can expect the law to imply that the standard of materials he uses and the workmanship he puts into the building will be reasonable. He is carrying out services for mc. But if the builder constructs a house and then sells me the land - and under the notion of the law the building is part of the land - there is no implied warranty as to reasonableness of materials or workmanship. That is one of the lingering advantages that accrues without reason in the law at present by ownership of land. To give any advantage to a contract made in reference to land so as to make an agreement in that connection an unexaminable practice in restrictive trade practices legislation seems to me to have no reasonable basis.
Agreements of that nature were of particular prevalence in the hotel trade. A brewery owning a number of hotels would, as a condition of the licence, require a licensee to retail exclusively that brewery’s product through that hotel outlet. Tasmania passed tied houses legislation as long ago as 1911 to prohibit that practice in the brewery trade. The legislation was sidestepped by a technical legal device which has seemed to run current in Tasmania up to the present time. The device is to double the rent and give to the tenant the advantage of paying half the rent if he exercises the option of taking only the product of the brewery landlord.
Curious as it seems - and I think everybody will agree - the beer that is brewed in Tasmania and retailed through the only brewery there - since the amalgamation of Cascade and Boag - is an excellent product. It is one of today’s pleasing thoughts that the amalgamation has produced an excellent product, although the tied houses legislation has been sidestepped and the brewery enjoys practically a monopoly. The excellence of the product and the proper terms upon which it is retailed maintain satisfaction within the community. It is elementary that for a long time lease conditions in the brewery trade resulted in the quality of the product being terrible in countries other than Tasmania.
I turn now to deal with service stations and the degree to which the economy is being wasted by the exaggerated prices that oil companies are paying for corner sites for retail outlets in a mock competitive trade in oil products. The attendants at the petrol station outlets receive a bare minimum return. The idea that we should permit a provision whereby service station leases should enjoy immunity from examination as an examinable practice is completely unacceptable to me.
I refer now to paragraph (b) of sub-clause (4.). I do not wish to offend anybody in these matters, but surely it is common knowledge that power derives not only from the land, but also from the possession of money in such quantities that it may be lent out. Throughout the history of commerce, the money lender has enjoyed such an advantage that he has been able to impose usurious terms. Legislation in respect of usury and moneylending has been framed for the prevention of the abuse of money power. I am not implying that banks and financial institutions, or companies in the fields of insurance, hire purchase and grazing, which afford great assistance to many sections of the community by properly lending money, come within the conception of usury. I have referred to history to illustrate that, merely because a transaction takes the form of a loan of money, it does not prima facie raise any case for granting immunity from examination to agreements that are restrictive of the borrower’s trade while the loans remain unpaid.
Amateurish as I am in business, I have always thought that a solicitor who has money to lend has a great means of magnifying his business. I have always thought that it is a cardinal principle of commerce that a means of getting customers to buy regularly is to give them credit accounts. I think that is generously understood by the lenders, and often a borrower is in a situation where he cannot look on the credit allowed otherwise than in generous terms. Nevertheless it is a credit transaction. If any of these practices arise in relation to a transaction in which credit is given, then it seems to me that they are examinable practices.
The only disquiet in my mind arises from this provision in the sub-clause - unless the term or condition is imposed or to be imposed in pursuance of an agreement with a person carrying on a business other than the person on whom the term or condition is, or is to be, imposed.
The sub-clause seems to apply if a third party is involved. I need a little clarification of that point. I very much regret that, in relation to a matter which causes me much concern, I have found it necessary to address the Chair for 10 minutes or so in the absence of the Minister and that he has only just now been able to return to the chamber. Nevertheless, I have no doubt that in view of earlier comments that have been made he will be aware of the general basis of the objection that exercises my mind. As at present advised, I shall vote in favour of the deletion of sub-clause (4.).
.- It will be interesting to hear the Minister’s comments. 1 believe that the Government has adopted a principle that we should not oppose. I certainly will not support Senator Murphy’s amendment, which seeks the deletion of sub-clause (4.). It has been open to honorable senators to look at these provisions. It is interesting to note that a few minutes ago the Opposition was quite willing to pass on to clause 40. So apparently the matter wc are discussing was not of great moment until quite recently.
– This provision was not in the Bill until last week.
– There was a willingness a little while ago to pass on to clause 40. If somebody wishes to grant credit surely he should have the right to stipulate terms.
– Nobody disputes that.
– If that principle is accepted, the honorable senator should agree with the Government on this matter.
– I do not.
– If somebody owns land and wishes to lease it, surely he should have the right to say what conditions should attach to that lease. I rise purely to defend this provision. This is a very difficult Bill indeed; it is the first piece of trade practices legislation to have been introduced in the Commonwealth sphere. The Government is to be congratulated upon introducing it. I do not think we should do anything at this point of time to interfere with the clause.
.- The objection to the clause seems to lie in the tying conditions - if that is the right term to use - which may flow from an owner of property leasing that property to somebody else. An owner may lease property on the condition that the lessee buys goods or services from him, or he may lend money to a lessee on condition that goods or services are bought from him. I do not see why there should be any objection to this practice. Perhaps the basis of the objection was brought out when I was unavoidably absent from the chamber. It may lie in the practice of brewery companies which own hotels saying to the lessees of those hotels: “We will lease you these hotels provided you sell only the beer that we brew “.
– And stout and everything else.
– They may say: “Provided you sell the products that we brew “.
– And, as far as spirits are concerned, at a certain place.
– I do not follow that statement. I do not see where the great objection to this practice lies. If somebody owns a property, it does not seem to me to be unreasonable for him to lease it on condition that it is used for selling the goods that he produces, particularly if in the first place he bought it for the purpose of selling goods. That is one point of view. There are other points of view.
In the long run it may not make a great deal of difference if this is regarded as being a wrong practice. I am sure that in the circumstances about which 1 am talking there would be no difficulty in a brewery, which would still have the right to own freehold, saying to somebody who might be operating an hotel for it: “ We are sorry, but you are no longer the lessee of this hotel. We want to sell our beer here, but we cannot make you a lessee on the condition that you sell our beer. You will have to manage the hotel for us on wages plus a percentage of the profits that are made “. The lessee would then be in exactly the same position, but in what I would regard as a less honest way. 1 use the word “ honest “ not in the sense of personal honesty but of intellectual honesty. I can only put it to the Committee that the practice in question does not seem to me to be bad in itself, lt does not seem to me to be a practice which can be prevented, even if the amendment is agreed to.
.- I did not say that all these conditions were bad. I do say that prima facie many of them are. It is my view that these practices are peculiar and that they should be made examinable and not be exempt from examination.
– I have listened to what the Minister has said. Doubtless he has not had experience with the liquor industry.
– Only in drinking its products.
– I suppose everybody has his own tastes. I wonder whether the Minister has ever given a thought to the situation that obtains in Victoria. If there is one monopoly in Victoria today, it is that of Carlton and United Breweries Ltd. The profits to be derived from this industry are not as good as they were in the past, unless one is fortunate enough to own an hotel. Nowadays the breweries tell the hotelkeepers the prices at which they must sell their products. Everybody knows about the collusive tendering of the oil companies. I hope I am correct in saying that there are two industries in the main that are outside the scope of normal business arrangements. The oil companies constitute one such industry. However, I am particularly interested now in the liquor industry. Many years ago I knew something about this industry, although all I knew about its products was seeing them sold. I believe that there is no greater monopoly in Victoria than the brewery industry. Anything that can be done to bring this industry within the scope of the proposed Act ought to be done.
One can trace the history of this industry. It was not so long ago that a hotelkeeper in New South Wales, just over the border from Victoria, had to go out of the industry because for some reason he wanted 30 days in which to pay for his supplies. Carlton and United Breweries said that it had to be cash on the nail, although the hotelkeeper had proved that over the period when he dealt with this octopus he had always paid his debts. According to the story, he tried to get supplies from Tooth & Co. Ltd. in Sydney. Of course, the octopus extended into New South Wales. The brewery industry has had an open go in this country. No-one objects to that in the system under which we live. But if there is one industry that should be hogtied so as to ensure that it does not own people and does not continue to act in the way in which is has acted in recent years, it is the brewery industry. I am speaking particularly of my own State because I know something of the industry in that State. If this industry does not come within the ambit of the Bill - and from discussions I have had I understand that it does not - the Committee should ensure that it is encompassed by the Bill.
– I want to read into the record further reasons why the clause is in its present form. The Government believes that the exemption of tying conditions - this is what we have been speaking about - in relation to the leasing of land and . the lending of money merely recognises that there are limits to the extent to which the legislation should go in preventing the owner of a property from disposing of it subject to conditions. The effect of the exemption is that the products which the owner- of the property distributes he can require to be distributed through his own property to the exclusion of other persons’ products. The products which a lender of money distributes he can require to be distributed by the borrower to the exclusion of other persons’ products.
A tying condition is a condition that must be accepted by the lessee or by the borrower if he wishes to use the lessor’s property or to borrow the lender’s money. These exemptions would not extend to the matter raised by Senator Kennelly. I spoke of a brewery which owned a hotel and required that its own beer be sold in that hotel. The exemption extends only t’o the owner of a property selling his own products. If a brewery were “ to say to the owner of an hotel: “We will provide you with beer only if you sell such and such a brand of gin or such and such a brand of whisky “, that would be examinable. It would not be exempt. It is only when the brewery says: “We make beer and we require you to sell our beer”, that it is exempt.
I think that this view has been supported by a monopolies commission in the United Kingdom. Recently it brought down a report on the system of one-brand petrol stations. The commission accepted the view that it would be unreasonable to expect oil companies to make a station owned by them available for the sale of petrol of a competing oil company. The commission went no further than to sound a note of caution about increasing the percentage of company owned sites, but it considered it would be unreasonable to stop the practice. If a petrol company owned a petrol station, it would be unexaminable if that petrol company demanded that the petrol station sell only its petrol. But it would be examinable if the petrol company demanded that the petrol station should sell somebody else’s tyres or somebody else’s batteries, those being things which the petrol company itself did not produce. There is a qualification at the end of sub-clause (4.), which states that regard shall not be had to the things about which we have been speaking -
That is to say, it is examinable if it goes through an intermediary. If the owner makes an agreement with somebody else which imposes a condition on a third person, that is examinable.
.- I would like the Minister to make clear to the Committee that in 99 per cent, of ihe cases in relation to any of the firms he had mentioned, no matter what terms were employed to make their goods available on credit, the conditions would be nonexaminable. Let us take a petrol company, which is the last example the Minister gave. Let us say that a petrol station is on leasehold land. The normal procedure would be for the company to put petrol into the bowser, and prior to its doing so it would say to the petrol station proprietor: “ There will be 60 day terms “. If the petrol supplier were to say at that stage: “You will sell these tyres, this oil and this car wash”, that practice would be non-examinable.
.- I think the case that the honorable senator put is this: A petrol company owns a freehold petrol station and it has a lessee operating it.
– Who operates it?
– The principal is purely the supplier of petrol to a service station.
– Which he does not own?
– If he is the supplier of petrol to a service station which he does not own, he cannot demand that that petrol station sell only his ‘brand of petrol.
– ‘But it is associated with the granting of credit.
– The honorable senator is speaking now of somebody lending money.
– Granting credit.
– That is, in effect, lending money. Let us take the case of an actual sum of money being loaned instead of goods being provided on credit. If one lends money to the owner of a service station, under this clause he is entitled to say: “ Until you have paid me back the money that I have lent you, you have to take my petrol and not take anybody else’s petrol”. That would be permissible under this Bill.
– How does the owner of the service station get on when he has paid the money back?
– -If he does not owe the petrol company any money, I do not know what hold the petrol company would have over him which would enable it to say: “ You have to take our petrol “.
– Possibly he would not get the money unless other things were involved.
– I do not follow the honorable senator. If the money were paid back, I do not know what hold a supplier would have over that person. But if he endeavoured to do anything after the money had been paid back, there would be no exemption to the examinability of that transaction.
– It has become quite apparent that, apart from the obnoxious effects of clause 39 (4.) (a), if sub-clause (4.) (b) is left in the Bill all transactions on credit are going to be exempted from the operation of the examinable provisions. Can we have any wider exemption? It is conceded that most of our commercial transactions are conducted on credit. This means that with these provisions which relate to restrictive practices the requirement is that a person will buy something else. In other words, a person has to do something which is imposed on him. All that the Opposition is saying is that these practices surely should be examinable. We on this side are not saying this is always bad. If the Government means business with this Bill at all, how can it resist that suggestion? Is the Government going to cut out all the examinable practice provisions in respect of all these transactions which are conducted on credit and leave the way open for anyone who wants to render his practice unexaminable to do so, as he can do when he starts to operate by giving some kind of credit. This applies even if it is some fraction of what he is doing. Any kind of credit allowed will whisk a person right out of the provisions relating to examinable practices. How can the Government maintain this is worth anything if it leaves these provisions in the Bill?
Sentaor GORTON (Victoria - Minister for Works) [10.12].- This applies only to goods which are manufactured by a person who is lending the money or who has made the credit.
– That is not so.
– I am informed that it is so. The honorable senator can point out, if it is not so, why it is not so, after I have finished speaking. What Senator Murphy is saying is that a person should not have the right, when he lends money or extends credit, to make a condition of lending the money or extending the credit that his goods will be sold by the person to whom he lends the money or extends the credit. He has not any right under this
Bill, if he has lent money or extended credit, to demand that somebody else’s goods be sold by the man to whom he has lent the money or extended the credit. He has only the right to demand that his own goods be sold, I am informed.
– I do not wish to add anything further to the arguments on this matter. I rise only to clarify a few matters which have become confused in the course of the debate. The first matter arises out of a query by Senator Kennelly in relation to clause 39 (4.) (b). It is quite clear that the immunity that this practice gains from examination is gained only while a credit is being availed of. If the credit is repaid, and the practice continues, it could become examinable thereby.
The second point upon which I wish to comment relates to remarks which fell from the lips of the Minister. He said that this provision applies only for the benefit of goods manufactured by a lessor in the .case of a lease or by a lender of money or a grantor of credit. I do not find anything in this clause to confine the provision to goods which are manufactured by a lessor or a lender of money. The provision does refer to terms and conditions imposed by a lessor and terms and conditions imposed by a lender of money. But these terms and conditions can be imposed by those people, I would expect, primarily in the case of a lessor to goods manufactured by him, but in the case of a lender of money or credit as often as not to goods in which he trades. These are goods which he has purchased from someone else or from a manufacturer and which he turns over in the market. The only thing that sub-clause (4.) makes clear to my mind is found in the words -
This provides that no protection is given to goods where the condition is imposed by the owner of the land or the lender of the money for the benefit of a third person.
– Only if there is an agreement, not an arrangement.
– No, an agreement, with a third person.
– An arrangement which is less than an agreement.
– I do not wish to go into a fine distinction of that sort. I am not repelling it. All I wish to say is that the “ unless “ part of sub-clause (4.), being a provision for the benefit of a third person, does not seem to me to have very much reality in the world of commerce as distinct from the fields of charity.
-(Senator DrakeBrockman). - Order! I point out to the Committee that Senator Murphy has moved that sub-clauses (4.) and (8.) of clause 39 be left out. Is it the wish of the Committee that I put these two clauses together, or does the Committee wish to vote on them separately?
– We wish to vote on them together.
– They are inseparable.
– Then I will put them together.
Question put -
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman- Senator T. C. Drake-Brockman.)
Majority . . . . 1
Clause, as amended, agreed to.
Clause 40. (1.) For the purposes of this Act, the Commissioner shall cause to be kept a register to be known as the Register of Trade Agreements. (2.) Subject to this Act and the regulations, the Register shall be kept in such form and manner as the Commissioner directs.
.- I move -
At the end of the clause, add the following subclauses - “ (3.) The regulations shall provide for the maintenance of a special section of the Register, and for the filing inthat section of such particulars as the Commissioner may direct, being
particulars containing information the publication of. which would, in the opinion of the Commissioner, be contrary to the public interest; or
particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of any mineral or other deposits or as to any other similar matter, being information the publication of which, in the opinion of the Commissioner, would substantially damage the legitimate business interests of any person. (4.) The Register, other than the special section, shall be open to public inspection during such hours and subject to payment of such fee as may be prescribed by the regulations. (5.) Any person may, upon payment of such fee as may be prescribed by the regulations, require the Commissioner to supply to him a copy of, or extract from, any particulars filed in the Register, other than the special section, certified by the Commissioner to be a true copy or extract”.
This amendment seeks to add to this clause, which deals with (he duty of the Commissioner of Trade Practices to keep a register to be known as the Register of Trade Agreements and to keep it in such form and manner as the Commissioner directs, a series of provisions in respect of the maintenance of a special section of the Register to deal with certain secret and confidential matters and also, in contradistinction to clause 34 of the Bill which has been postponed to allow this matter to be debated, in respect of the matters contained in proposed sub-clauses (4.) and (5.).
Three possible positions can be taken up in relation to the problem of whether the Register ought to be open or secret. The Government’s position is contained in clause 34, which provides for the Register to be secret and provides a penalty for any officer breaking the secrecy required of him by that clause, lt is a very substantial penalty of £500 or imprisonment for three months. So the Register is completely closed and is not open to inspection even by an interested party or a person who may be affected by an agreement that is filed in the registry.
We do not share that point of view. We go to the opposite point of view; namely, that, subject to a special section for which we provide in proposed sub-clause (3.) (a) and (b), the Register should be open for inspection. We say that the special section should be confined to agreements which contain particulars containing information the publication of which, the Commissioner in his discretion thinks, would be contrary to the public interest, or particulars containing information as to any secret process of manufacture or the presence of mineral or other deposits; in short, particulars the publication of which, in the opinion of the Commissioner, would substantially damage the legitimate business interests of any person. I referred to that matter last night in my speech in the second reading debate. We say that that would be sufficient protection.
Apart from those two situations, which are covered in the amendment, what is the reason for having secrecy? We believe that advantage is to be gained by having an open register which is available for the public to inspect on payment of whatever fee is prescribed. As I said in the second reading debate, in the United Kingdom, where there is an open register, it is found to be very effective as a deterrent to restrictive trade practices. The Opposition’s amendment is based substantially on section 11 of the United Kingdom Restrictive Trade Practices Act of 1956.
There is an intermediate position, which I mention for completeness. That is the proposal in Sir Garfield Warwick’s original scheme that the leave of the commission, which was then the appropriate body, should be sought by any “ person affected by a restrictive practice with an economic interest to see a document registered in respect of that practice in order to protect himself against its consequences or to take steps to have the document deregistered “. In other words, the proposal was a limited right of access to the register by a person who could show that he had an interest. Apart from that, “ the register would be a public register, it would not be open to indiscriminate public inspection “, to use the words of Sir Garfield Barwick.
The Opposition takes the view that what has proved effective in the United Kingdom should be followed here. The legislation that the Government has put forward is modelled on the British pattern. Therefore, we ought to take whatever assistance we can from the British experience. I believe that that summarises the case that we put. We do not see any justification for the way in which the Government has approached this matter, namely, by providing for a secret register which is not available to inspection, even by an interested person.
.- I speak on this subject because the register was a new concept in the United Kingdom in 1956. The requirement to register was used as one method of bringing to notice the existence of agreements and practices that should be examined.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the negative.
– I always thought that the cardinal provision of the English legislation and the essential idea behind it was that it substituted a register, control by a court and injunction orders and directions, together with some penalties, for the old process of criminal procedure, gaol and fines. This afternoon the Minister expressed a view with which I agree entirely, namely, that the old idea of gaol and fines is not the appropriate method of dealing effectively with this matter. So I regarded the acceptance of an appropriate register as rather essential to the modern idea which I thought was the basis of this Bill.
I viewed with great interest Sir Garfield Barwick’s proposals when he first adumbrated them in December 1962. He then modified the right available to the public generally to inspect the register and he did fo by making inspections subject to the leave of the Commissioner or the court, whichever was the appropriate body. He pointed out that this proposal would give parties who had to register these agreements an additional assurance and confidence that the terms of the agreements would not be available to great sections of the public which had no legitimate interest and in respect of whom it would be only mischievous to open the register for inspection. It would be positively against the public interest that they should be able to probe the register for other people’s agreements. So I was quite attracted by the view of Sir Garfield Barwick when he made the register available for inspection only by parties who could justify their interest in an inspection to the registrar, the Commissioner or the court, whichever section of the court machinery was relevant.
I must confess that I am a little dismayed to learn that the present Bill permits inspection of the register and of agreements in the register by no-one except officials of the registry office and the Commissioner. On balance, my view at the present time is against full blooded adoption of the English proposal expressed in this amendment. I could not justify in my own mind at the moment a rejection of Sir Garfield Barwick’s proposal, if that were put forward as an amendment, unless it could be shown to me that it was inconsistent with the essential elements of the Bill. As I have said, I oppose full blooded inspection by the public generally as adumbrated in this amendment, although I regret very deeply that this register is closed to every member of the public, whether he be interested or uninterested. I feci disquiet all the more when I find that proceedings to declare an agreement or a trade practice contrary to the public interest can be initiated only by the Commissioner, and not, as I would wish and as T believe was provided in Sir Garfield Barwick’s proposals, by the Commissioner, or the Attorney-General or a party who could establish to the satisfaction of the Tribunal on a preliminary hearing that he had an interest and should be given leave to initiate the proceedings.
.- I think I should state briefly why the Government wants the clause to remain in its present form. Although there is no way of proving conclusively or logically which is the better of the two views, the Government believes on balance that the present form is . the best way in which to have the clause. The Government regards the register as a fact finding mechanism for the assistance of the Commissioner, who is the only person able to take action on the facts as presented to him. Of course, a number of secret processes would be covered by the secret register suggested by Senator Murphy, but there could be other matters in an agreement which would not be secret but which would be confidential. It is difficult to draw a line between what a business man regards as confidential and what he regards as secret, just as it is difficult to define who are interested people. Obviously, some people would be interested people.
– It would be subject to determination by the court or the Commissioner, in my conception.
– In mine too. That is why I am saying it would impose upon the Commissioner the rather delicate task of deciding where a degree of interest was strong enough or where it was not. The Attorney-General and his officers who are specially authorised by this Bill have access to the register, as does the Commissioner. For the sake of keeping confidential information confidential - only the Commissioner can take action because the facts are presented to him for that purpose and for other purposes that I have attempted to mention briefly - the Government would prefer the clause to remain in its present form.
.- My colleague and I think the register in this form will go too far, and we will vote against the proposed amendment.
Clause agreed to.
– The Committee will return to postponed clause 34.
Postponed clause 34. (1.) This section applies to every person who is or has been the Commissioner or a member of the staff assisting the Commissioner. (2.) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except in the performance of a duty under or in connexion with this Act or a complementary State law -
Penalty: Five hundred pounds or imprisonment for three months.
– In view of the decision the Committee reached on clause 40, the last clause we dealt with, I do not propose to. proceed with the amendment 1 circulated in relation to clause 34, which was designed to add a new sub-clause (6.). Proposed sub-clause (6.) would have related to clause 40 and was connected with the proposal put in relation to clause 40 by Senator Cohen.
.- I move-
In sub-clause (2.) leave out “ Five hundred pounds “, insert “ One thousand dollars “.
I am sure the Committee will agree that this proposed amendment is completely innocuous.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 41 to 43 agreed to.
Proposed new clause 43a.
– I move -
After clause 43, insert the following clause - “43a. - (1.) Where any particulars have not been furnished as required by this Act, every person who is guilty of an offence by reason of the nonfurnishing of the particulars is subject to a continuing obligation to furnish those particulars, which obligation continues until he or some other such person has furnished the particulars. (2.) A person who makes default in compliance with his obligation under the last preceding subsection is guilty of an offence punishable by a penalty not exceeding Two thousand dollars for each week during which the default continues.”.
The Opposition takes the view that it is ludicrous to have an obligation that is not continuing in regard to furnishing of particulars. The whole purpose of requiring registration of particulars of this kind or other kinds is that there be a continuing obligation. In fact, it has been said in relation to the interpretation of many provisions in regard to registration and other similar acts, where the purposes would be defeated unless particulars were registered or furnished, that obligations are to be read in that way. In other words, if one is required to do something within 30 days, this is read as meaning that it must be done within 30 days, but in any event it must be done. We say that this is the kind of provision that should exist here. It will nullify the whole purpose of furnishing of particulars if there is not a continuing obligation to furnish.
The requirement to furnish within a relatively short time is proper, but if the person fails to do it within the time why should he then be free? He commits an offence by not doing it within the 30 days, but why should he then be free, under no obligation at all and under no penalty, if he goes on for months or years without furnishing the particulars? It is apparent from the scheme outlined by Sir Garfield Barwick that he intended that the obligation be continuous. He intended also that it would be an offence for a person to effectuate an agreement or carry on a practice if he had not furnished the particulars. Even if one does not make the carrying on of the practice an offence, surely there must be a continuing obligation to furnish the particulars.
This is a most common provision in the law. If one looks through the Act which the Minister has been so fond of citing, namely, the Commonwealth Conciliation and Arbitration Act, one will see that the obligations upon trade unions and officers to furnish particulars to the Registrar are framed in this way: They must furnish the particulars and, if they do not, the penalty is so much for each week of default. This is common sense. Why should we have a register requiring particulars for the purposes of this legislation and not have a continuing obligation? The penalty provided is a heavy one, but it must be realised that this is a maximum penalty.
There are defences for non-furnishing of particulars. The penalty applies only in a case where some defence is not made out.
The penalty being a maximum, it is within the discretion of the court, if it is a minor matter for which there is some excuse, to impose no penalty or some nominal penalty. But in the case of a flagrant breach, where there has been a deliberate and continuing refusal to register, in order to evade the provisions of the legislation, the court has the opportunity to impose a penalty which might be quite heavy. We know that in many of these cases extremely great sums may be gained by those who carry on practices and refuse to register. It is our view that the penalty provided is an appropriate one, the imposition of it being left to the discretion of the court.
That is the purpose of the amendment. If there is to be any kind of effective registration scheme, there must be a continuing obligation to furnish the particulars. If we do not have that, we allow persons to flout the registration provision and to do so with impunity. It is no answer to say, as the Minister said at an earlier stage, that even so, if somebody finds out, the practices can be looked at and the Tribunal can deal with them and make orders. Then, if the orders are not obeyed, the persons can be dealt with. Of course, that is so, but that is only when somebody finds out by some extraneous methods. The whole kernel of this Bill is the registration provision. The legislation does not rely, as was the case in the United States, on investigation officers going outside the register. It does not rely on that procedure for its fundamental basis. If it is to work and work properly, there must be a sufficient sanction upon those who decline to register. It is not enough to provide a small penalty once and for all. The obligation must be a continuing one, as applied almost universally in matters of this kind.
.- I feel obliged to reply to the points made by Senator Murphy. I would agree with what he said finally, when referring to a statement I made previously, that even if an agreement were not registered, as soon as somebody complained, it could be stopped. I agree that that is not an answer, if what one is seeking is punitive action for non-registration. It is an answer if one is concerned with stopping restrictive practices which is the object of the Bill, but it is not an answer if what one is seeking is punitive action. I think that the suggestion made by the honorable senator overlooks the fact that the offence of failing to furnish particulars is one that is committed by every person who is a party to an agreement or an association that is doing this sort of thing. There might be 1,000, 2,000, 3,000 or 5,000 people in an association of this sort, every one of whom would be liable if an agreement was not registered.
This association could be one in which there were large corporations and a number of small businessmen. A heavy fine might be required if it were imposed months after the offence of non-registration were committed. A heavy fine for a continuing offence might not bear at all heavily on a large corporation or company but could bear’ very heavily indeed on smaller people in the association who would be liable if this agreement had not been registered. I should think that, as a matter of practice, most reputable businessmen would not wish to have a criminal record against themselves. I use the expression “ criminal record “ in the sense of a conviction for having failed to register an agreement according to the law. This is something which would be unlikely to happen, though it would be possible. Because of the spread, because of the number of people who would be liable, because of the different weights with which continuing fines could be imposed on these people and because the real object of the Bill is not really to seek heavy punitive damages but to stop these practices, the Government prefers the clause to remain as it is.
– The Minister said that this provision might affect all sorts of people who belonged to an association and that it seemed a little unfair for it to fall on them. But it seems to us of the Opposition, that they are protected by the provisions of subclause (4.) of clause 43, which reads - (4.) It is a defence to a prosecution for an offence against this section if the person charged satisfies the Court that -
There is provision for extension of time by the Commissioner, so it cannot be said that the requirement of the continuing obligation is unfairly falling on any such person. There is ample protection in the Act. There is as well the unlikelihood of prosecution where a person has not really been at fault. There is also the protection that the court is not likely to convict, let alone impose any serious penalty, in the case which the Minister referred to, where the person is not really morally at fault. If we are to have an effective registration scheme we must have a continuing obligation to register and sufficient sanction to deal with the worst cases. We commend this as being a moderate and proper proposal.
.- I rise to support what Senator Murphy has said on the proposed amendment. As he says, to make this legislation effective we must make failure to furnish particulars a continuing offence, because the Government has not made the carrying on of the business or the practice without registration unlawful. In our view, it has to be either one thing or the other, and perhaps both. Either make the practice unlawful if the persons involved have not registered within the specified period, or make the offence a continuing one if they fail to register. For the life of me, I cannot see why the Government has abandoned what was very clearly specified in Sir Garfield Barwick’s proposal. In my view, the Minister has failed to justify the dropping of the provision that it will be an offence to carry on a practice within list A unless the document covering that practice is and remains registered. The failure to register such a document could be an offence, but that would be additional to the offence of carrying on a practice whilst the document covering that practice was unregistered. In his second reading speech the Minister had this to say on the subject -
Failure to register will not render the agreement illegal-
I pause to ask: “ Why not?” - but the agreement will remain subject to examination by the Trade Practices Tribunal in the same manner as it would have been had it been registered.
The Minister also said, as I have already mentioned - only if examined and determined to be contrary to the public interest will an agreement become unlawful.
That may not be an invitation to the persons involved not to register, but it will certainly be a temptation to them not to register, because there is the clearest statement that it is Government policy that, with or without registration, there is nothing unlawful until the Tribunal has pronounced the agreement to be contrary to the public interest. This seems to me to be an avoidable gap. It was originally announced in December 1962 as part of the scheme that a practice would become unlawful in the absence of registration. Why has this been abandoned?
– It is quite true that anything that happens under an unregistered agreement is not made unlawful. It is also true that when it is discovered that an agreement should have been registered but was not, the person concerned can be proceeded against in the Industrial Court and that a conviction can be recorded against him if he is found guilty and a fine imposed on him. We are really arguing about what the size of that fine ought to be. The Opposition is arguing that it should be a much larger and a continuing fine in order to be a greater deterrent, and the Government is arguing that, although there are the safeguards which Senator Murphy adverted to, nevertheless they may well not be sufficient to guard the smaller people who would be seriously hurt if there were a larger fine. I do not agree with the argument that there is an invitation to persons who should have registered-
– I said “ temptation “.
– There might be a temptation - there always is, in all fields of life - but there is also a knowledge on the part of those people that they would be pretty silly to succumb to that temptation if they valued their reputations as businessmen, because if they were engaged in a practice against the public interest - in a price ring, or something of that kind - they would be bearing heavily on the public by keeping prices up, refusing to supply goods or acting to the public detriment in some other way which would quite clearly cause the agreement to be complained about and render them liable to conviction and fine.
Proposed new clause negatived.
Clauses 44 to 53 agreed to.
Clause 54. (1.) Where proceedings instituted by the Commissioner under section 47 of this Act are pending and the Tribunal is satisfied that -
.- I move-
At the end of the clause add the following sub-clause - “ (3.) The Tribunal may make an interim order of the kind referred to in sub-section (1.) of this section in relation to an alleged examinable agreement or practice on the application of a person who satisfies the Tribunal that, unless such an order is made, that person is likely to suffer grave hardship or irremediable injury, and such an order remains in force, unless sooner revoked, for such period as the Tribunal determines.”
The purpose of this amendment is to enable persons who, in the eyes of the Tribunal, are likely to suffer grave hardship or irremediable injury, the right to seek interim orders. That is in relation to alleged examinable agreements or practices. The provision in the United States legislation is that the individual can approach the court and can have his injury remedied. The position under the original proposals of Sir Garfield Barwick was that the individual would have some means of getting redress in that he could apply for leave. But under the provisions of the Bill, the individual is entirely excluded. The Commissioner is in complete control.
From what we know of experence elsewhere, a great number of agreements and practices are to be dealt with. It may be a very long time before a particular agreement or practice is examined and consultations are held by the Commissioner. An application has to be made to the Tribunal by the Commissioner. That has to be dealt with in its turn and many weeks may pass in the hearing of each matter. So a long time might elapse before an injured individual’s matter is heard. The Opposition seeks a provision that the person injured might be able to go to the Tribunal and if he can satisfy the Tribunal that he is likely to suffer great hardship or irremediable injury, he can apply for an order. By this, we mean an interim order to protect him until the matter is disposed of finally by the Tribunal. We ask that the amendment be approved to protect those persons who otherwise are certain to suffer.
– As I understand it, under the Bill as it stands a person suffering hardship of the sort mentioned by Senator Murphy would go to the Commissioner and point out that he was suffering this hardship. It would then be for the Commissioner to suggest to the Tribunal that an interim order be issued. In other words, the line would be from the injured person to the Commissioner who would make up his mind whether a reasonable case has been put to him. If he decided that the case was reasonable he would suggest that the Tribunal give an interim order. If it was not reasonable he would take no action.
If the amendment were accepted, it would mean that an individual could bypass the Commissioner and go directly before the Tribunal and ask it to decide whether a reasonable case had or had not been put. By and large, the Commissioner is the only person to institute proceedings before the Tribunal and we think he should remain in that position. We think it reasonable that a judicial man of the status of the Commissioner, having had a case put to him alleging that hardship had been caused, should be trusted to make a proper judgment whether the case was strong enough for him to approach the Tribunal or not.
Clause agreed to.
Clauses 55 to 60 agreed to.
Clause 61. (4.) Where-
.- I move -
At the end of sub-clause (4.), add - “ except where a party to the agreement, or the person engaging in the practice, has accepted a further restriction, or commenced to engage in a further practice, that is relevant to the question whether the restriction or practice to which the certificate relates is contrary to the public interest.”
This amendment deals with a somewhat technical matter but I shall attempt to explain it briefly. Clause 59 provides for what are called “ negative clearances “ and states -
Where the Commissioner is satisfied that a restriction under an examinable agreement, or an examinable practice, is not contrary to the public interest, he may, with the leave of the Tribunal constituted by a presidential member, file with the Registrar a certificate to that effect, giving particulars of the agreement, and of the particular restriction, to which the certificate relates, or particulars of the practice to which the certificate relates.
Clause 61 provides for proceedings before the Tribunal and for a direction to be given by the Tribunal to the Commissioner in certain cases to take action to bring the matter under his consideration. Where the Commissioner, as a result of his inquiries, comes to the view that the practice or restriction is not contrary to the public interest, he may apply by direction for leave to file a negative clearance certificate. Clause 61 (4.) provides that he shall state in his application for leave a proposed minimum period of operation of the clearance certificate, the period being not less than five years, if leave to file a certificate is granted, the certificate filed shall specify that period as the minimum period of operation of the certificate.
I now move close to the subject of the Opposition’s amendment. The clause provides that an application for leave to apply for rescission of the determination shall not be made before the period so specified has elapsed since the filing of the certificate. There is a minimum of five years during which the certificate will operate. Of course the Commissioner may fix the period at 5, 10 or 20 years. That is a very long period during which an application for leave to revoke the certificate shall not be made. The Opposition’s amendment seeks to place a proviso upon that provision that an application for leave to revoke the certificate cannot be made within the period prescribed in the certificate. We say there may be circumstances where the Commissioner has given the certificate knowing that three particular restrictions are involved. Having formed the opinion that these are not contrary to the public interest he may go through the procedures which result in the negative clearance certificate being granted. As the clause stands, ordinarily the certificate will endure for the whole period specified in the certificate, and an application for leave to revoke it cannot be made.
There may be circumstances where, subsequent to the granting of the clearance certificate, the parties may enter into one or more further restrictions and if these had come before the Commissioner, he might have regarded them as contrary to the public interest. Indeed, had he known originally that in addition to A, B, and C there were also D and E, he might not have been prepared to grant the clearance certificate because he might have come to the conclusion that the conditions vitiated the otherwise unexceptionable position from the point of view of public interest provided by A, B, and C. Perhaps I have been a little technical but the material itself is difficult to expound in a few moments.
The Opposition believes that where there are further circumstances under which the parties to the agreement, or the persons engaging in the practice, have accepted further restrictions subsequent to the granting of the certificate, an application to revoke the certificate may ‘be made within the period specified in the certificate. The Commissioner should not have to wait until the end of the period before moving if he is satisfied that the new restrictions are relevant to the question whether the matter is contrary to the public interest or not.
– Is this as a sort of punishment?
– No, not a punishment. I am referring to an agreement which is unexceptionable so far as the Commissioner is concerned and he says: “ All right. You can have a negative clearance certificate”. The moment a certificate is given for five, ten, fifteen or twenty years that the practice is not contrary to the public interest, the parties put. their heads together, or the stronger party imposes upon the weaker party further conditions which mean that the stronger party is thumbing his nose at the certificate that has been granted. If the Commissioner had know that this was to happen, or if the extra conditions which are offensive had been part of the deal in the first place, he would never have granted a clearance certificate. The Opposition has in mind that in effect there should be leave to apply within a period specified in the certificate, if further restrictions appear which are capable of being regarded as contrary to the public interest. I hope I have made that clear.
– Is the certificate an exemption?
– The certificate is a negative clearance. It is an exemption. It is a certificate of the Commissioner that the particular restrictions upon which he grants the certificate are not contrary to the public interest. It may be that later on, after the parties have obtained immunity for what could, be a lengthy period - not less than five years - other practices are engaged in.
I am sure that the Minister is now on the wave length because he is nodding his head in confirmation.
.- I thank Senator. Cohen for the clarity with which he spoke upon this point. I think I have understood him. I will put it’ back to him so that he can tell me whether I have understood him. He referred to people who wish to make some arrangement, but have not yet made it, and want to find out whether it is an arrangement that ought to be registered. They want to find out whether it is an arrangement that the Commissioner considers to be reasonable and one which he would permit to operate. In those circumstances, they go to the Commissioner and explain what they propose to do. They ask whether it is all right. The Commissioner says that it is all right and gives them a clearance which is valid for five years to come.
It has been suggested by Senator Cohen that if the people who were given the clearance engage in other practices than the practices for which they were given a clearance - in practices which are more onerous and beyond the terms of those practices they declared to the Commisioner - they should have their clearance certificate suspended or taken away. At that point 1 asked Senator Cohen was it an idea of punishment and he said that it was not.. I could have understood Senator Cohen if it was to be a punishment because the parties had gone beyond what they were permitted to do. The Commissioner would then say: “ We will not let you do any more than what we permitted you to do before. We take away your clearance certificate “. However, this is not intended to be a punishment, but merely to prevent people from engaging in practices more onerous than those for which they were given permission in their clearance certificate. I think the position, is already covered, because the clearance is given only in respect of the practices they declared. Once they go beyond them and impose more onerous conditions, the clearance does not apply to them. I do not think I need to read out what the Attorney-General (Mr. Snedden) had to say on this aspect, but it supports what I have said.
.- The Minister has understood what 1 have put exactly, but the answer to him is, I think, fairly clear. I appreciate that the certificate applies only to the particular restrictions covered by the certificate; that is made clear in clause 59 (1.).I am saying that it is not a question of stopping them from doing something that they were entitled to do under the certificate. I appreciate all the reasons for the clearance certificate and I make no general attack on it. I appreciate the reasons of certainty, and so on, and that it is important for people in commerce to have stability and certainty. But the point I am making is that if there are conditions Nos. 1 , 2 and 3 originally and a certificate is given, it hs not that you want to revoke the certificate for the new conditions - conditions Nos. 4 and 5. But if the Commissioner had known of those extra conditions, he would not have granted a certificate in respect of conditions Nos. 1, 2 and 3. That is why the Opposition suggests that the Commissioner should not be bound for the whole of the period because he granted a certificate. He should take the whole matter under review at some stage. If he were satisfied that the basis upon which he had originally granted a clearance certificate had disappeared or had been vitiated by new arrangements, the whole matter could be reconsidered.
Clause agreed to.
Clauses 62 to 81 agreed to.
A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not, without reasonable excuse -
Penalty: Five hundred pounds or imprisonment for three months.
Amendment (by Senator Gorton) agreed to -
Leave out “ Five hundred pounds “, insert “ One thousand dollars “.
Clause, as amended, agreed to.
A person appearing as a witness before the Tribunal shall not, without reasonable excuse -
Penalty: Five hundred pounds or imprisonment for three months.
Amendment (by Senator Gorton) agreed to -
Leave out “ Five hundred pounds “, insert “ One thousand dollars “.
Clause, as amended, agreed to.
A person shall not -
Penalty: Five hundred pounds or imprisonment for three months.
Amendment (by Senator Gorton) agreed to-
Leave out “ Five hundred pounds “, insert “ One thousand dollars”.
Clause, as amended, agreed to.
Clauses 85 to 87 agreed to.
Clause 88. 88.- (1.) Subject to this section, a person who suffers loss or damage by an act of another person done in contravention of an order of the Tribunal in proceedings under Part VI. or in contravention of section 85 or 86 of this Act may recover the amount of the loss or damage by action against that other person.
– I move -
In sub-clause (1.) leave out “contravention of section 85 or 86 of this Act may recover the amount of the loss or damage by action against that other person.”, insert “contravention of any of the provisions of Part DC. may sue for and recover from that other person treble damages for the loss or damage “.
The effect of this amendment would be that a person who indulged in collusive tendering or bidding in contravention of Part IX would be liable for suit in which he might have to pay treble damages for the loss or damage that he caused to some other person. This matter was traversed at the second reading stage. It is the known way in which restrictive trade practices legislation is enforced in other countries. It is the known way of enforcement in our own country. It is the kind of sanction that is provided for in the Australian Industries Preservation Act, which the Committee has decided to retain and which will continue to operate at least in relation to overseas shipping. In terms of the Government’s proposals, of course, we are dealing only with certain aspects of the Australian Industries Preservation Act.
This is a proper sanction to apply. The effect of the amendment would be to provide, in the same way as does the Australian Industries Preservation Act and as do the Sherman Act and related Acts in the United States of America, that the person injured would be able to recover three times the amount of damage that he had suffered as from the time of the illegal act.
– The discussion centres around the punishment that ought to be meted out to somebody who contravenes one of the parts of the Bill. Senator Murphy, on behalf of the Opposition, has suggested very heavy punishment on the lines of that at present provided for in the Australian Industries Preservation Act. The Government is more concerned with gaining its objective of removing practices that are detrimental to the public interest. The Government believes that, where we provide a civil cause of action - Part X provides for civil remedies for loss or damage - it would not be appropriate to provide by suit the capacity to get treble damages.
Clause agreed to.
Clauses 89 to 105 agreed to.
Proposed new clause 105a.
.- I move-
After clause 105, insert the following clause - “ 105a. - (1.) The Commissioner shall, within thirty days after the end of each quarter, furnish to the Attorney-General, for presentation to the Parliament, a report with respect to his operations during that quarter and shall include in the report information as to -
the matters in which he has carried out investigations;
the matters in which he had decided to institute proceedings in the Tribunal; and
the ‘matters in which he has decided not to institute proceedings in the Tribunal. (2.) The . Attorney-General shall, as soon as practicable after every thirtieth day of June, report to Parliament on the operation of this Act in the year ending on that thirtieth day of June. (3.) In this section’ quarter ‘ means a period of three months ending on the last day of September, December, March or June.”.
It will be noted that the proposed new clause provides that the Commissioner shall furnish quarterly reports to the AttorneyGeneral for presentation to the Parliament. The report would set out his investigations, the proceedings that he had instituted before the Tribunal, and matters in relation to which he had decided not to institute proceedings. In the terms of the amendment, the Attorney-General would have to report annually to the Parliament on the operation of the Act. The proposal speaks for itself. It would mean that the Parliament would be given information about the working of the Act so that members would know what was happening, whether there had been proper administration of the Act, and whether amendments of the legislation were called for.
.- The Bill already provides for the Commissioner to furnish annual reports. The Government thinks it would be imposing too big a burden on the Commissioner if he were required to submit quarterly reports. It believes that annual reports would achieve the end that the honorable senator desires to see achieved, and that the Commissioner would thus be freer to carry out the duties for which he was appointed.
Proposed new clause negatived.
Clause 106 agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments. Motion (by Senator Gorton) proposed -
That the report be adopted.
Motion (by Senator Gorton) put -
That the Bill be recommitted for the purpose of reconsidering clause 4 of the Bill as printed.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . 2
Question so resolved in the affirmative.
Clause 4 (Reconsideration).
Motion (by Senator Gorton) proposed -
That clause 4 as printed in the Bill be reinserted in the Bill.
– The Opposition opposes the clause for the same reasons that were given earlier to the Committee.
Question put -
That clause 4 as printed in the Bill be reinserted in the Bill.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman.)
Majority .. .. 1
Question so resolved in the affirmative.
Bill reported with a further amendment; reports adopted.
Bill (on motion by Senator Gorton) read a third time.
Motion (by Senator Henty) agreed to -
That the Order of the Day for the second reading of the Income Tax Bill 1965 be restored to the notice paper, and that it be made an Order of the Day for a later hour this day.
Motion (by Senator Henty) put -
That the Bill be now read a second time.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . 1
Question so resolved in the negative.
– I present the eleventh report of the Printing Committee.
Report - by leave - adopted.
Motion (by Senator Henty) agreed to -
That the Senate, at its rising, adjourn until tomorrow at 10 a.m.
Motion (by Senator Henry) proposed -
That the Senate do now adjourn.
.- Mr. President, I do not desire to keep the Senate very long, but I want to refer to the policy followed by the Commonwealth Banking Corporation .in regard to advertising. I might say at the outset that it would be competent for me to raise a matter dealing with the Snowy Mountains scheme although Sir William Hudson obviously would not be bound completely by ministerial control. The same applies with respect to the Commonwealth Banking Corporation. I think the analogy holds.
This story stems from Question No. 633 which I placed on the notice paper and in which I asked about the policy of the Commonwealth Banking Corporation in regard to advertising in daily, weekly and monthly publications. The answer which I received from the Minister representing the Treasurer, Senator Henty, was, in effect, that certain obscure publications like the. “ Century “ newspaper in Sydney did receive advertisements. At the same time, I received a very ambiguous reply in regard to this rather extravagant form of advertising in various publications. At least there was justification to include quite a number of monthly publications. I refer in particular to the foreign owned Press. Some weeks have gone by since my question was answered. I have conducted one or two private investigations into the substance of this question. Having done so, I desire to raise two objections. In the first instance neither then nor subsequently has the Commonwealth Banking Corporation made any justification in relation to why such an obscure,, journal should receive any advertising at all! It might be that the Corporation feels that it wants to advertise in off-beat journals. I would have no objection if the “ King’s Cross Whisper “ or “ Oz “ was to receive such advertising because it would certainly have wider circulation than “Century”.
I would go a little further and say something which I think is most important. Nobody questions the right of self expression but I do not think we have to pander to. any particular journal which wallows in the gutter. We know that in pre-war Germany Dr. Goebbels ran a newspaper. In the United States of America we had an infamous journalist known as Westbrook Pegler. He was renowned for his smears of the Labour movement in the United States. He was renowned for smears not only of the trade union movement but of anybody who differed with him. I applied that particular label to Mr. Patterson, the editor of “ Century “, because he is renowned for this sort of thing. Again I say that he is entitled to express himself. But people, both inside and outside of this Parliament, are also entitled to stand up to him and say what they think. But I think it is another thing for the Commonwealth Banking Corporation which is deemed to be the people’s bank, to squander money on such a publication. It is not good enough when you ask for information to get an answer which adroitly sidesteps an explanation as to the justification for advertising in this journal.
I leave that particular point. I was much more concerned with the answer to question No. 3 which, to say the least, is virtually a half truth about advertising in the foreign language Press. I make that point because in
January a citizenship convention will be held in Canberra and a certain amount of lip service will be paid, anyway, to our migration policy. As honorable senators know, since I have been in Canberra 1 have always paid tribute to the Department of Immigration, the Minister for Immigration (Mr. Opperman), his predecessors of all political parties and departmental officers. But at the same time I feel that this ham handed action by the Commonwealth Banking Corporation is certainly not very conducive to good feeling among that particular section of the Press which, with some notable exceptions, has done a good job.
This brings me to the climax of the submissions. In order to test the consistency of this answer I had had at least three spot checks made in about 12 foreign press publications in Sydney. I have had them monitored and examined. There have been no advertisements from the Commonwealth Banking Corporation in them and this bowls over this answer saying that it did advertise in them. It goes further than that. I got in touch with a Mr. Doig, one of the senior officers of the advertising section of the Commonwealth Bank and I arranged for Mr. Ivan Kosovich, the editor of the Australian Yugoslav journal to interview him. I particularly picked out this paper because you find that foreign language Press publications in many instances go to the wall and it is only the hardy type that survive. There is a similar situation in the United States of America as more and more people become assimilated. So far as Sydney publications in that category are concerned, whether it be “ La Fiamma “. the Italian Journal, the Australian Yugoslav journal, or the Greek and Maltese publications, they are all very reputable. However, I picked out the Yugoslav paper because, first it has a national circulation; secondly, it is issued on a monthly basis and has remained stable for over five years; and thirdly, quite a number of reputable governmental and semigovernmental agencies in New South Wales advertise in it. So it has been proved by test that this is a reputable journal. The editor rang me tonight and said that after a lengthy interview with Mr. Doig he had received a very terse answer from the bank saying that it had no desire to advertise in his paper.
I want to conclude on two points. I say, first, that 1 have no quarrel with the Commonwealth Banking Corporation if its budget is such that it is economising and is not going to expand advertising. That is fair enough. On the other hand, if it can justify advertising in a gutter sheet such as “ Century”, obviously it would be justified in spending money on advertising in newspapers that play a constructive role in this country. I imagine that all of us, when we get up tomorrow morning and start another day, will want to make some contribution to our country. That applies to most newspapers and their staffs, too. But it certainly does not apply to this newspaper that is produced in Nithsdale Street, Sydney.
I do not criticise Mr. Doig. Obviously, he received his instructions from someone higher up. The answer that I received to my question was an insult to anybody’s intelligence. I know that Senator Wright, in particular, has always expected accuracy in answers to questions. I would like the Minister representing the Treasurer to pass on to his colleague a very strong protest from me. I expect honesty in answers to questions. I want to find out why “ Century “ continues to receive these handouts. I go a little further. I hope that this injustice will be rectified before the Australian Citizenship Convention, which is to be held in January next year. I do not want its proceedings to be disputed by the editors of foreign language newspapers asking why their newspapers are not participating in this advertising. The Convention will have more important matters to discuss. I want a better answer to my question than the one that I received some weeks ago.
– in reply - I will bring the comments that the honorable senator has made this evening to the notice of the Treasurer (Mr. Harold Holt).
Question resolved in the affirmative.
Senate adjourned at 11.52 p.m.
Cite as: Australia, Senate, Debates, 9 December 1965, viewed 22 October 2017, <http://historichansard.net/senate/1965/19651209_senate_25_s30/>.