29th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 10.30 a.m., and read prayers.
– I present the following petition from 305 citizens of Australia:
To the Honourable the President and Members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of Australia respectfully showeth:
1 ) that they oppose the Australian Government’s recognition of the incorporation of Lithuania, Latvia and Estonia into the Soviet Union;
that this act of recognition is against the principles of the Universal Declaration of Human Rights;
3 ) that the Government should appreciate that the Baltic States were unlawfully occupied in 1940 by the Soviet Union through using armed forces following the signing of a pact by Stalin and Hitler.
The petitioners therefore humbly pray that you will review this matter and you will rescind the decision.
Petition received and read.
– I present the following petition from 72 citizens of the Commonwealth:
To the Honourable the President and Members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:
Whereas the right of self-determination belongs to every nation, big or small, the Baltic States of Estonia, Latvia and Lithuania nave been deprived of it for 30 years by the Soviet Union. All Australian Governments for 30 years have refused to recognize the Soviet sovereignty over the Baltic States, but now understand that such recognition has been granted. We the undersigned petitioners wish to express our concern and dismay and humbly ask that it be retracted.
And your petitioners, as in duty bound, will ever pray.
Petition received and read.
– I present the following petition from 72 citizens of the Commonwealth:
To the Honourable the President and Members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:
Whereas the right of self-determination belongs to every nation, big or small, the Baltic States of Estonia, Latvia and Lithuania have been deprived of it for 30 years by the Soviet Union. All Australian Governments for 30 years have refused to recognize the Soviet sovereignty over the Baltic States, but now understand that such recognition has been granted. We the undersigned petitioners wish to express our concern and dismay and humbly ask that it be retracted.
And your petitioners, as in duty bound, will ever pray.
– As a petition similarly worded has already been presented by Senator Young I do not propose that this petition be read.
-I present the following petition from 72 citizens of the Commonwealth:
To the Honourable the President and Members of the Senate in Parliament assembled: The humble petition of the undersigned citizens of the Commonwealth respectfully showeth:
Whereas the six million people of the Baltic States of Estonia, Latvia and Lithuania, occupied and unlawfully annexed by the Soviet Union, have been deprived of freedom, Human Rights and civil liberties and are therefore unable to express their will, we the undersigned Australian citizens of Baltic origin humbly petition the Senate to express its moral support to the rights of the Baltic States to freedom and self-determination.
And your petitioners, as in duty bound, will ever pray.
Petition received and read.
-I present the following petition from 24 citizens of the Commonwealth:
Whereas the six million people of the Baltic States of Estonia, Latvia and Lithuania, occupied and unlawfully annexed by the Soviet Union, have been deprived of freedom, Human Rights and civil liberties and are therefore unable to express their will, we the undersigned Australian citizens of Baltic origin humbly petition the Senate to express its moral support to the rights of the Baltic States to freedom and self-determination.
And your petitioners, as in duty bound, will ever pray.
As a petition similiarly worded has already been presented by Senator Davidson, I do not propose that this petition be read.
– I have a long notice of motion which runs to three pages. Senator Murphy and I have had a brief discussion about it. I ask for leave to have it incorporated in Hansard.
– What is it about?
-It concerns the Constitutional Convention. It is a formal notice to go on the notice paper.
-Is leave granted? There being no dissent, leave is granted. (The document read as follows)-
Mr President, I give notice that, on the next day of sitting, I shall move-
That the Senate affirms the decision taken by resolution of the Senate on 31 May 1973 that the Australian Parliament join with the Parliaments of the States in the Constitutional Convention to be convened to review the Australian Constitution in September of that year, and at such subsequent times as the Convention from time to time determined, and agrees:
1 ) That, for the purposes of the Convention-
a Delegation from the Australian Parliament consisting of sixteen members of the Parliament take part in the deliberations of the Convention, of whom six shall be members of the Senate and ten shall be members of the House of Representatives;
the six members of the Senate comprise three members of the Australian Labor Party, two members of the Liberal Party of Australia, and one member of the Australian Country Party.
a ) the Leader of the Government in the Senate, Senator the Honourable L. K. Murphy, Q.C., and two other Senators, being members of the Australian Labor Party, nominated by him;
b ) Two Senators, being members of the Liberal Party of Australia, nominated by the Leader of the Opposition in the Senate; and
one Senator, being a member of the Australian Country Party, nominated by the Leader of that Party in the Senate; be members of the Delegation:
That the Prime Minister be the Leader of the Delegation, and the Leader of the Opposition be the Deputy Leader.
That a member of the Delegation cease to be such a member if-
he ceases to be a member of the Australian Parliament;
b ) the House of the Parliament of which he is a member terminates his appointment; or
he resigns as a member of the Delegation by writing addressed to the President of the Senate or the Speaker of the House of Representatives, as the case requires:
That where, because of illness or other cause, a member of the Delegation is not available to attend a meeting, or part of a meeting, of the Convention, the Leader or senior available member of the Party in the House from which the member was drawn may nominate an alternate member ( being a member of the House of which the firstmentioned member is a member) and the member so nominated shall be a member of the Delegation for that meeting, or that part of that meeting:
That, in the event of a member of the Delegation ceasing to be such a member, the Leader of the Party in the House from which the member was drawn may nominate another member ( being a member of the House of which the first-mentioned member is or was a member) to replace the first-mentioned member
That the Leader of the Delegation from time to time make a report for presentation to each House of the Parliament on matters arising out of the Convention, and that the Deputy Leader of the Delegation may make an accompanying report.
– My question is directed to the Minister for Foreign Affairs. What position on the Russian Embassy staff does Mr Alexandrov fill, and what duties does he perform?
-I understand that he is the Cultural Attache, that that is his title. I suppose he does all the things that a cultural attache does. I cannot give the honourable senator details of them.
-Will the Minister for Customs and Excise inform the Senate of the significance of the new equipment being used by Customs officers at Kingsford-Smith Airport, Sydney while interviewing passengers returning from overseas? Will he indicate whether the equipment is related to the processing of information by computer and, if so, whether this new process is likely to cause additional delays?
– The new equipment is part of a computer complex, being visual display units connected with the computer in Canberra. It is part of a processing system known as ‘Passenger Automatic Selection System’. The system assists in the selection and identification of passengers for baggage examination on the basis of certain high risk factors. It has been useful in connection with the smuggling of drugs. Only very recently a fairly large amount of heroin was discovered concealed upon a person through the use of this ancillary mechanism, and a great deal of other drugs have been found. The system does not cause any delay. In fact, it assists in the rapid clearance of passengers because it is helpful in selecting those who might be considered to be candidates for examination and therefore allows others to go through with much greater speed.
– I ask the Minister for Repatriation and Compensation: Is it a fact that members of Repatriation Boards have not received salary increases or national wage adjustments since 1972? Is that because the relevant section of the Repatriation Act was amended last year to bring salary variations for Board members under the determination of the Remuneration Tribunal? Does the Government have the power under the Act to adjust the remuneration paid to Board members before a determination is made by the Tribunal? If so, will the Minister give urgent consideration to the restoration of wage justice to the officers concerned?
-Senator DrakeBrockman is correct in saying that the salaries of the members of the Repatriation Boards are subject to a determination by the Remuneration Tribunal and that these officers have not received a wage increase since 1972. They are in a rather similar position to a lot of people, including ourselves. The fact of the matter is, of course, that a number of anomalies have developed because statutory officers have not been receiving increases while other persons who are not statutory officers or who are not subject to the Remuneration Tribunal have been receiving increases. We find in the Department of Repatriation and Compensation that relatively junior officers are receiving considerably higher salaries than people who have very great responsibilities. That is also the case with members of the Repatriation Boards.
This situation has resulted from a decision taken by the Senate. Presumably those honourable senators who voted against the determinations of the Remuneration Tribunal knew what they were doing when they did so. As Senator Drake-Brockman would no doubt imagine, in recent days I have received communications from a great number of aggrieved officers of the Department of Repatriation and Compensation and members of various boards reminding me of what has happened. The Government is considering the matter at the present time. Beyond saying that there is very little that I can add. The decision was taken- I understand that it was taken with the support of the whole Parliamentthat the conditions of employment of those officers ought to be the subject of a determination by the Remuneration Tribunal. Having decided that, if the report of the Remuneration Tribunal is rejected by the Parliament there seems at first sight to be not a great deal that one can do.
-My question is directed to the Leader of the Government in the Senate. I preface it by referring to a meeting which was eld in Perth yesterday afternoon by persons alleged to have an interest in the case of the Russian violinist, Mr Ermolenko, and which included Mr Garland, the Liberal Party member for Curtin, and Mr Ian Medcalf, representing the Liberal Party Minister for Immigration in Western Australia. I ask: Is the Leader of the Government aware of reports that this meeting agreed that Mr Ermolenko should not be allowed to leave Australia until the Minister for Foreign Affairs, Senator Willesee, had flown to Perth and spoken to him? Further, does he believe that the Minister for Foreign Affairs might best assist the situation by remaining in Canberra, where he is able to consult with officers of his own Department and the Russian Embassy?
-I am aware of the meeting of those persons who are alleged to have an interest in the young man. It does seem interesting that the Liberal Party is so anxious to have Senator Willesee leave Canberra, where it is quite clear that his official duties can be carried out most efficiently. Canberra is where the Soviet Embassy is located. It is where Senator Willesee has his duties to perform. It is also where he can do anything useful that can be done. In a Senate where, as everyone knows, the numbers are equal, it is rather strange to hear this demand from a meeting of prominent Liberals and, I understand, an Australian Democratic Labor Party secretary of some trade union who has interested himself in the matter. It is strange that they should require, insist and demand that the Minister for Foreign Affairs, who is able to perform his duties in his usual efficient manner to the satisfaction of all, abandon his place of work and the place where his vote is critical and fly across to Perth. That is consistent with the rest of the nonsense that we have seen in the course of this political stunt being operated by the Opposition.
– I ask the Minister for Foreign Affairs a question in the light of the eulogy which was given last night by Senator Wheeldon of a Professor Kabalevsky who has played a prominent role in advising, allegedly, Mr Ermolenko as to whether or not he should remain in this country. Is not this Professor Kabalevsky the same Professor Kabalevsky who was reported in the Soviet News Bulletin of September last year as having criticised Andrei Sakharov as acting contrary to the interests of the Soviet Union? Is not Andre Sakharov a man who thoughout the world is reputed for the sufferings he has undergone in defence of the civil liberties which he claims ought to be the right of the Russian people? To what extent is the Government relying upon Professor Kabalevsky as giving an independent and disinterested view of what this young man Ermolenko has actually been stating? Will the Government assure the Senate that it does not regard Professor Kabalevsky as in any way a disinterested person with regard to human rights and civil liberties?
-I remember Senator Wheeldon speaking eulogistically last night of the abilities of the professor as a musician, and Senator Wheeldon obviously would have some knowledge of that. I do not know whether Professor Kabalevsky said something in some Moscow journal last year. The honourable senator asks whether we are taking advice from Professor Kabalevsky. The answer is no. He is one person from whom I am not taking any advice; he is one of many persons from whom I am not taking any advice.
– I address a question to the Minister representing the Minister for Transport. Can the Minister assure the New South Wales branches of the Australian Workers Union and the Municipal Employees Union, which provide the work force for road construction in that State, that ample finance will be available for road construction in New South Wales provided that the Opposition co-operates with us on certain road construction legislation?
– I think that the honourable senator’s question revolves around three Bills which are now on the notice paper and which seek to authorise grants to the States for road construction purposes. I hope that this legislation will be discussed by the Senate this week. It is enabling legislation to implement an agreement between the Prime Minister and the States. The Government is now making interim grants to the States in the hope that the legislation will be passed by the Senate. It has been passed already by the other place. The Minister for Transport has informed the States and the local councils that the interim grants that they have been receiving in anticipation of the legislation being passed will have to be discontinued if the legislation is not passed by the Senate. This morning a statement was made on the radio program ‘AM’, or one of the other radio programs, that New South Wales was very concerned about this matter. I think that the question will be decided this week despite the fact that I understand amendments will be moved in regard to the legislation. I have sufficient confidence in the Senate to express the belief that the Senate will not deprive the States and the local councils of the money they need for road construction purposes.
– I direct my question to the Minister for Foreign Affairs. In view of his attempt to equate the previous Government’s decision in relation to Goa with the decision by the present Government to recognise the incorporation of the Baltic states into the Soviet Union, I ask him whether it is not a fact that Goa was a Portuguese colony populated by people largely of Indian ethnic origin whereas the Baltic states were formerly free and independent states possessing an ancient culture and traditions and whose people are witnessing the destruction of their culture and traditions and individually and collectively suffering from communist brutality and suppression?
– In equating what happened in Goa with what has taken place in the three Baltic states, I pointed out that the technique of recognition was exactly the same in both instances. I do not think it will ever be possible to compare any two countries in the world in terms of their background, what they are doing or their ethnic types. The moment you try to do that I think you get on to an impossible track. Because there was criticism about the way we had acted in relation to the three Baltic states I pointed out that the technique used by the Government was exactly the same as the previous Government had employed in regard to Goa. The previous Government did not make any announcements. It instructed its Ambassador- strange to say, it happens to be the Ambassador who is involved in the present situation, Sir James Plimsoll- to visit Goa and that that act was to signify de jure recognition. We copied this technique from the previous Government.
-Will the Minister for Foreign Affairs supply details as to the number of copies of Australian magazines of a cultural and informative nature distributed to Australian diplomatic and trade posts abroad? Will the Minister additionally supply details as to the number and names of Australian magazines of a non-profit, cultural nature, specifically those published under some form of subsidy from the Australian Council for the Arts which are distributed to posts abroad? For the purposes of this inquiry I would wish the Minister to refer especially to the major Australian literary magazines such as ‘Meanjin’, ‘Southerly’, ‘Overland’ and ‘Quadrant’.
-The Australian Information Service supplies our 75 posts abroad with the type of material to which the honourable senator refers. The Service comes under the jurisdiction of the Minister for the Media. The Department of Foreign Affairs makes its requirements known. As I understand it, there is a general distribution of serial publications including those dealing with statistics as well as general articles. Each post individually informs the Department of Foreign Affairs what it wants. I know that ‘Meanjin’ and ‘Quadrant’ are two of the magazines which the posts receive. I certainly could not give Senator Button a complete answer off the top of my head. I will obtain a comprehensive list and let him have it.
– My question is addressed to the Leader of the Government in the Senate. The Government having been responsible for getting the country into an economic mess with the threat of unemployment looming very largely, will the Prime Minister accept the offer of Mr Clyde Cameron to resign as he feels he can no longer take his responsibilities seriously?
– There is no doubt that a government got us into an economic mess, but it was the previous Government which did it. Honourable senators opposite will remember the report of the Organisation for Economic Cooperation and Development which said that inflation was starting to build up in Australia. They will remember the great unemployment which existed under Liberal-Country Party governments. The test of the matter is what happened. Honourable senators opposite were thrown out of office because they could not run the country. They have since pursued a policy of obstruction in the Senate. They could not even judge the temper of the country because they went on with obstruction in the Senate. They did the unprecedented thing of threatening to refuse Supply because they thought they had the people with them, but they did not. They could not even judge that. They are foolishly carrying on with this obstruction, not understanding that the people of this country can see through all the nonsense and malarkey that go on when honourable senators opposite reject Bills, as they did yesterday, which are in the interests of the country and when they try to water down legislation like the Trade Practices Bill which is now before the chamber. They think they can fool the people by all the political stunts that they are going on with, but the people are a lot more sensible than honourable senators opposite think. I would suggest that instead of asking foolish questions like the one just asked they should co-operate with the Government to try to get legislation through this chamber which will be for the benefit of the people and try to assist the Government in the administration of the country, which they ought to be doing as a constructive Opposition. That is their duty. They are failing in their duty. They are being destructive.
– I ask a question of the Attorney-General. Is it a fact that prior to the report to the Senate on Croatian Terrorism 18 months ago there was a considerable amount of violence, bombings, bashings and other undesirable behaviour by a small minority of persons influenced by or members of the Ustasha and tolerated by the previous Government? Is the Minister able to inform the Senate whether there has been a cessation of such activities during the period of the Labor Government? Can he say whether he has any reports from the Commonwealth Police and the Australian Security Intelligence Organisation as to the reasons for the fall-off in violence in the Croatian community and whether it is the Government’s firm handling of these problems that has produced a more healthy attitude in this community?
– There is no doubt that there was a good deal of violence under the previous administration. I think everyone regrets the fact that there were bombings in the capital cities of Australia and that some people were injured and will suffer for the rest of their lives from these outrages. Although the previous administration professed to be concerned with law and order and spoke a great deal about it, there was a breakdown in actual law and order during its term of office. Since that time I think that it is obvious to everyone that there has been a very great improvement in the position. We are not being subjected to this kind of outrage arising from the quarter mentioned by the honourable senator. Indeed, I noticed that some twisted person suggested that the Australian Labor Party must have been behind it all because it was able so successfully to quell the disturbances and outrages which were occurring. I think that one of the reasons for the reduction in this kind of disorder and violence was the firm indication given by the Labor Government that it would not tolerate this kind of behaviour in our country and the fact that the police forces have been diligent in carrying out their duties. I hope that we will continue as we are at the present time and that we will not be subjected to any repetition of what went on under the previous Government.
-I thank Senator Sir Kenneth Anderson for his observations. As we all know, Senator Sir Kenneth Anderson was the Minister for Customs and Excise for some time whilst he was Leader of the Government in the Senate. What he says is perfectly correct. If in the answer that I gave I may have left that inference open -
– It is only possible.
– Yes. I want to adopt what the honourable senator has said and make it very plain that the computer is there to assist in selecting, those people, if you like, of high risk. But over and above that, as the honourable senator says, there is a random system of examination. This is practised in most parts of the world, including Australia. The baggage of many people is subjected to a full examination when there is no suspicion at all. It is a simple, random selection which may be carried out because it has been decided to check the baggage of, say, every tenth person or eighth person passing through the customs clearance point, even though there is no reason at ali to suspect such persons. A goodly number of people are subjected to inconvenience in customs examinations. I hope that they will suffer this in the knowledge that these things have to be done. Sometimes they have to be done for the protection of livestock, or the health of the community through quarantine, or to prevent the smuggling of drugs. People should regard that inconvenience as something they are suffering in the public interest. But I do want to accept what Senator Sir Kenneth Anderson says and I assure the public that simply because a person is subjected to an examination, perhaps a full customs examination, it does not carry with it the suggestion that in some way he is a suspected person.
– Has the attention of the Postmaster-General been drawn to a recent report in the Adelaide ‘Advertiser’ detailing a scheme which, on implementation, would provide the automatic relaying of telephone calls from unattended police stations to patrol cars? Can he say whether any steps have been taken to provide this facility to the public?
– Yes. I have seen the Press statement. The position at the present time is that the Australian Post Office and the police are discussing the possibility of introducing such a radio system. The system would be used in circumstances where a police station is unattended because the officer is out on duty and is not available to accept telephone reports from citizens. If such a radio system is developed it would mean that telephone messages could be transmitted to the nearest police prowl car. The Post Office is in favour of introducing such a system because this type of service is important to the community: Although this matter is in the early stages of development we are hopeful that with the cooperation of the police and the Post Office such a system might be perfected. I will find out what up to date information is available and give it to the honourable senator.
– I noted with interest yesterday the comments of the Minister for the Media with regard to the treatment that he and his Department have received from the feature writers of the Melbourne ‘Age’. In order to clarify the varied and general Press reports which have been made during the past few days, will the Minister advise, firstly, whether the reports that the Priorities Review Staff has recommended that policies for the control and licensing of radio should be in the hands of a ministerial committee is correct? If so, was this the reason that the Minister advised that grants could not be approved to assist public broadcasting? Secondly, were Press reports that the Department of the Media should not be given the authority to formulate policy for the introduction of FM broadcasting correct? Were the Press reports that the Government printing publishing and advertising services were to be removed from the Department of the Media correct? In the absence of definite statements from the Minister or from the Prime Minister, is it possible that conjecture could develop further as to the future functions of the Department of the Media?
– It is true that early last June the Prime Minister and I had a discussion. Subsequently he wrote to me saying that he would refer all aspects of the expansion of the AM and FM spectrum bands to the Priorities Review Staff for consideration and in so doing he suggested that the Priorities Review Staff should report to the Government by 31 July. That report has now been made available to the Prime Minister, to the Minister for Overseas Trade, to me and probably also to my colleague the Postmaster-General. The Government will be giving consideration to all aspects of that report and eventually after Cabinet has determined the outcome of its deliberations an announcement will be made. So far as the second portion of the honourable senator’s question is concerned- that relating to the Public -Broadcasting Association and my refusal to provide a grant of $30,000 to that Association for the purpose of developing a concept of public broadcasting- I can assure the honourable senator that my decision was in no way connected with or influenced by the Priorities Review Staff. The simple fact of the matter is that if the -honourable senator peruses the estimates for my Department she will see that no votes for grants are provided by the Treasury funds for my Department to make for that purpose.
In regard to the publications and advertising matter, the last matter to which the honourable senator alluded, I have seen reports suggesting that, as a result of a Cabinet decision, certain sections of my Department will be transferred to a proposed procurement commission. I can tell the honourable senator that the discussion by Cabinet of the Scott Committee’s report- this was a Committee of inquiry set up to advise on the desirability and practicability of establishing a procurement commission- is far from complete. Until such time as a statement is made by the “relevant Minister, namely the Minister for -Manufacturing Industry, I certainly do not intend to comment further on this matter. However, I think that I can well and truly say that unlike the Liberal Party, which at the last election undertook, if elected to office, to abolish the Department of the Media, whilst there is a Labor government in office there certainly will always be a Department of the Media. It will be an effective Department of the Media, notwithstanding what the feature writers of the Melbourne ‘Age’ and some other journalists may have to say.
Mr GEORGI ERMOLENKO
– I direct my question to the Minister for Foreign Affairs. Is it a fact that yesterday, Mr Smirnov, a counsellor from the Soviet Embassy in Canberra, requested the Government, through the Deputy Secretary of the Department of Foreign Affairs, to provide a plane to fly Mr Ermolenko out of the country? Does the Minister know whether this is the Mr Smirnov referred to in John Barron’s recent book on the KGB as a former KGB agent?
– In reply to the last part of the question, I do not know. I am not aware of the book to which the honourable senator has referred. I do not know whether what he suggested in the last part of the question is true or not. Mr Smirnov is the Charge d ‘Affaires at the Soviet Embassy as Mr Musin, the Ambassador, is absent, I understand on sick leave in Georgia. The Ambassador took sick here, but he is either on holidays or on sick leave. He is not in Canberra. Mr Smirnov is acting as the Charge d ‘Affaires. There have been several conversations between Mr Smirnov and me and between Mr Smirnov and Mr Alan Renouf, the head of my Department. I will not answer questions concerning the details of the things which we have talked about over the last few days. If I were to do so I would be here for months.
Mr GEORGI ERMOLENKO
-Mr President, I would like to ask a supplementary question. I ask the Minister for Foreign Affairs quite clearly whether an approach was made from the Soviet Embassy to the Department of Foreign Affairs to provide a plane for the purpose of flying Mr Ermolenko out of the country.
-I answered that question by saying that I have had several conversations with Mr Smirnov, and so has Mr Renouf, the head of my Department. I will not comment on the things that we have talked about.
-Can the PostmasterGeneral say when the Mount Isa-Darwin microwave installation project will be completed and to what extent will services be improved for residents of the Northern Territory when the project becomes operational?
-I will be officially opening the new service on Monday, 26 August. From that date subscriber trunk dialling from Darwin will be operative, but it is not anticipated that
STD to Darwin from other centres will be available before late October or early November. The new systems protection bearer will be available for television relays to Darwin from Brisbane. It will also be available for normal relays from the Darwin studios to the proposed national television stations at Katherine and Tennant Creek, which are due to commence operation in the last quarter of this year.
– I address a question to the Minister for Foreign Affairs in his capacity as the Minister representing the Minister for the Capital Territory. Has the Minister for the Capital Territory approved the issue of valuation notices for rating to lessees in the Kingston and Griffith areas on the basis of potential for redevelopment? Can this move be interpreted as the introduction of a new basis for valuations in the Australian Capital Territory? Does it not constitute a major departure from past rating practice based on comparable values as determined by sales? Is this system to be applied to other areas in the Australian Capital Territory?
-I regret that I cannot immediately give that information to Senator Laucke but I shall refer the question to the Minister for the Capital Territory and obtain an answer as soon as possible.
– My question is directed to the Postmaster-General. I preface it by informing the Minister that during the last Federal election campaign a Mrs Jean Leu of Sydney received an anti-Labor communication in an official PMG envelope. The message was directed against Labor’s health scheme. Will the Minister cause an immediate investigation to be made in an effort to ascertain how official departmental stationery was used as part of the Liberal Party election campaign?
– I am not aware of the incident to which Senator Keeffe refers.
– Is it even true?
-Would Senator Webster let me answer the question? I shall make inquiries and let the honourable senator know the position.
– I direct my question to the Minister representing the Minister for Minerals and Energy. Has he seen Press reports, and can he confirm those reports, that the proposed
Redcliffs petrochemical project in South Australia is on the verge of collapse? Does the Minister recall my warning him over many months that the Redcliffs project was in jeopardy, particularly because of Commonwealth Government interference? Also, is it a fact that a petrochemical plant may now be built in Western Australia in place of the proposed Redcliffs project in South Australia?
– I am quite sure that whatever happens to the plant in question will not be detrimental to that industry as a result of action taken by this Government. As to the specific details I shall refer the question to my colleague the Minister for Minerals and Energy and obtain an answer.
– Has the attention of the Minister for Foreign Affairs been drawn to the text of a recent newspaper article which describes the draft of the Treaty of Nara- the treaty to be concluded between Japan and Australiaas being so drained of content as to be meaningless? In view of the importance of Japan’s relations with Australia will the Minister assure the Senate that the Treaty to be negotiated will reflect that importance?
– Yes. The last part of the question is really what the Nara Treaty is all about. I did see the article. The situation at the moment is that our people have just been to Tokyo. Their discussions centred on the Australian revision of the Japanese draft. We gave the Japanese a draft. They gave us one back. The third talks aimed at ironing them out. The fourth talks are to take place in Canberra fairly soon. The date has not been fixed but I hope that it will be within a month or two. A lot has been said about the Nara Treaty. I would not like anyone to obtain false ideas about it. I am quite sure that they could gain false ideas by reading a recent misleading article to which Senator Milliner has referred. It suggests that the Treaty is shaping up very differently from the original conception and is devoid of content.
It is quite true that the Treaty is unlikely to set out detailed rules and regulations or rights and obligations, as treaties usually do. It is not that type of treaty. The Nara Treaty was not conceived as just another treaty, such as the Trade Agreement or the Migratory Birds Agreement which were specific. It is to be a broad treaty, setting the framework of Japanese- Australian relations, enabling the 2 Governments to put agreements already concluded into a broad context and also to establish the basis for further cooperation, including new agreements on specific matters. An important purpose of the treaty is to express in a more formal and symbolic way the friendship, the community of interests and indeed the inter-dependence which exist between the 2 countries. It should be noted, I think, that neither Japan nor Australia has concluded, or indeed sought, such an agreement with any other country before. I think this in itself is a mark of the close relationship which already exists and which both countries wish to formalise, stabilise and broaden.
-I ask the Minister representing the Minister for Transport whether the Government has been advised of the details of a South Australian report concerning concrete bridges used by the Indian Pacific express. If so, what response has the Government made and what is its interest in the matter?
– I cannot inform the honourable senator whether the Government has received the report, studied it and evaluated it. I suggest that the honourable senator put his question on notice.
-Is the Minister for Repatriation and Compensation aware of the present strike by nursing aides at 2 repatriation hospitals- the Concord Repatriation General Hospital and the Lady Davidson Hospital? If so, what action is proposed concerning these strikes? Will the patients at these hospitals be affected at all by these strikes?
– I am aware of the industrial dispute which has developed, as Senator Grimes said, at the Concord Repatriation General Hospital and the Lady Davidson Hospital, both in New South Wales. Nursing aides at both of these hospitals stopped work last Friday because their industrial organisation, the Hospital Employees Federation, was dissatisfied with the offer of increased pay made by the Public Service Board. The nursing aides at the Lady Davidson Hospital returned to work yesterday, but apparently they are going to resume their strike this afternoon. Approximately 300 nursing aides are involved in the dispute. They have received 3 increases in pay since March this year. The reason for their present dissatisfaction is that the pay offer which has been made to them by the Public Service Board falls short of the rates of pay for comparable work in other New South Wales public hospitals.
The Board has offered to reconsider the matter if further submissions are made by the union, but the nursing aides have declined to return to work until a further offer is made by the Board. The dispute has now been referred to the Public Service Arbitrator in accordance with the Act. The dispute has been notified to him by the Repatriation Commission. We have asked for an early conference to be held to examine the situation. So far there has been no serious effect on the patients at either of these hospitals, and the sisters, nursing staff and medical staff are giving the necessary attention without any great difficulties having occurred.
– My question is addressed to the Minister representing the Minister for Defence. I find myself in what is for me the strange role of carrying on a tradition initiated by the Labor Party. Will the Minister representing the Minister for Defence arrange to table the manifests of the Royal Australian Air Force Squadron 34, the VIP squadron, from the day details were last given to the Parliament up until 31 July 1974?
-It has been the routine to table the manifests. That has been done on a regular basis. I do not know whether Senator Marriott is talking about the case which has come to my attention about permission being granted to Mr Jonathan Gaul, who was described as a Press officer of Mr Snedden, the Leader of the Liberal Party, to travel on a VIP aircraft. Following a complaint, this matter came to the notice of the Prime Minister. It follows on questions which have been previously put to me about Mr Young having travelled on a VIP aircraft. At that time the situation was clear and Mr Young had to pay his way. When the request was made by Mr Snedden ‘s office to have Mr Gaul travel on a VIP flight, it was presumed by Mr Barnard’s staff that this officer was an employee of the Public Service. It has since been found that he is employed by the Liberal Party. Consequently, the question is now under review.
– Can the Minister for Repatriation and Compensation inform the Senate about arrangements for the provision of repatriation benefits for Australian ex-servicemen and their dependants who will continue to reside in Papua New Guinea after independence?
– This matter has been considered by the Government. As Senator
Brown knows, pensions are payable to exservicemen and to their dependants for matters relating to incapacity or death. They are payable in any country where the recipient cares to live. Medical treatment for service related incapacity also is provided anywhere by the Department. Upon the attainment of independence by Papua New Guinea there will be no difference in the situation of people who fall into those categories. But there are other benefits, primarily service pensions and treatment for non-service related conditions, which may be obtained only by people who reside within Australia or an Australian Territory. If nothing were to be done about this matter, upon the attainment of independence by Papua New Guinea a number of people who are at present living there would lose that benefit because Papua New Guinea would cease to be a Territory. However, the Government recently considered the matter and decided that any person who received these latter benefits and who was living in Papua New Guinea at the date of independence would be deemed to continue to be a resident of Australia or of one of its Territories and would continue to receive the benefits. However, if somebody was not a resident of Papua New Guinea at the date of independence and subsequently went to live there, he would fall into the same category as persons who have moved out of Australia and its Territories to a foreign country and would not be in receipt of the latter type of benefit.
– My question is directed to the Minister representing the Minister for Manufacturing Industry. By way of brief preface I refer to the fact that on 1 August last I sought an assurance from the Minister that urgent steps would be taken to assist the textile industry and its employees in Tasmania. I ask whether any steps have yet been taken. If so, what are they?
– It is true that Senator Rae raised the matter of unemployment in the Launceston area as a result of some depression in the textile industry in that city. The Government is concerned about this matter. It has decided to send to Launceston a task force similar to that sent to Wangaratta in Victoria. It will comprise representatives of the Departments of Manufacturing Industry, Labor and Immigration, and Urban and Regional Development. That task force will go to Launceston tomorrow and will be there on Friday also.
– It ought to have great success, like it did in Wangaratta.
-We hope it will. Let us hope the overall policies will be more successful than the ones the honourable senator has advocated for so long. We hope that the committee will report back to the Government next week with a statement of the special problems of the area and what may be done about them.
– Will the statement be published?
– I am not sure whether the statement will be published but the report will be. Certainly a statement will be issued on the report.
– I refer the Attorney-General to a report in this morning’s Melbourne ‘Age’ that 1 1 juveniles at present are detained in Fannie Bay Gaol in Darwin. Is tins report correct ? If so, why are these children so detained?
– The report is correct; they are detained there. In my opinion they should not be there. Why are they detained there? I suppose that the basic reason is the barbarous prison system which has operated throughout Australia’s history. We started as a penal colony. I suppose that we had one of the worst prison systems in the world, and we have maintained our traditions. Other civilised countries, such as Mexico, have advanced to the stage where the detention of persons is accompanied by a great deal of humanity and rehabilitative treatment. Humanity and rehabilitative treatment creep into our system in certain parts, but there is very little of it to be seen.
Fannie Bay Gaol is a disgrace and the fact that juveniles are held is a disgrace. It appears that there is no proper provision for the detention of juveniles in the Northern Territory. Unfortunately some juveniles apparently need to be detained. In Darwin we also lack persons to give adequate rehabilitative treatment. I suppose- 1 need not go into all this, but I assure the honourable senator that if something could be done to enable children to be detained in proper conditions it would be done forthwith. There is no security at the other available place, Essington, except such that it would be intolerable to have children in it. I understand that now there is some suggestion of their being kept on a prison farm. Mrs Dawn Lawrie, of the Northern Territory Legislative Council, has raised the matter, otherwise very little would be done. The fact that juveniles have been kept there has been pointed out over a period of years. Little was done in this sphere, as utile has been done in other spheres.
I understand that, even worse than the keeping of juveniles at Fannie Bay Gaol, persons whose only crime is that they are sick also have been detained in the prison from time to time because there is no other place in which to keep them. This is to the distress of all people concerned with law enforcement in the Northern Territory.
– Are these matters not under your control?
– It happens that this is not under my control. I am not apportioning responsibility. If one wants to point to responsibility- I have not done so- it clearly is as a result of many years of neglect by the previous Administration. If the honourable senator wants me to say that, then I will say it. That is the fact. This was tolerated. This Government is conscious of this and is going to try to do something about it. I will tell the Senate that if nothing is done about this fairly promptly - (Opposition senators interjecting)
– It is a matter of mirth for honourable senators opposite who prate about civil liberties. The fact that sick persons and children are detained in an institution where they should not be detained is a matter of merriment for honourable senators opposite because they cannot yet see their way clear to make a political stunt out of it. I say this to them: If it is a question of whether children should be detained in such a place- a place where they should not be detained- because there is no other place for them, the attitude I will take is that they ought to go free.
– I address my question to the Minister representing the Treasurer. I refer, firstly, to the Treasurer’s proposals dated March 1974 for a new superannuation scheme for Australian Government employees and, secondly, to the actuarial report on the scheme dated 18 June 1974. Did the Treasurer request interested persons and organisations to comment on the scheme not later than IS July 1974 so that the Government could take an early decision on his proposals? Is he aware that many officers of the Public Service have to make early decisions whether to take up additional units under the existing scheme and are embarrassed and suffering loss due to the delayed decision as to the implementation of the proposed new scheme? Can an early decision be expected?
-It will be necessary for me to pass the question on to the Treasurer for an answer.
-I ask the Minister representing the Minister for Manufacturing Industry: In view of the defeat of the Australian Industry Development Corporation legislation in the Senate yesterday, what can now be done to meet the real expectations of primary producers in north-west Tasmania for the establishment of a food processing and canning co-operative industry based upon local production? The cooperative would have been possible had the legislation been passed and would have meant a better return to primary producers in the northwest region of Tasmania and substantially reduced costs to the consuming public for foodstuffs processed and marketed through the proposed co-operative, the planning of which had been fully examined and approved. Will the Government in the light of the present situation urgently consider any other avenue for enabling such an industry to be established and so meet the very real expectations of the beneficiaries of such an industry, namely, the fanners and the consumers?
-There have been moves over recent months- I suppose over the last 18 months- by grower representatives on the northwest coast of Tasmania to form a vegetable processing co-operative. Approaches had been made to the Australian Industry Development Corporation to assist in the financial arrangements for such a venture. However, the AIDC is inhibited by the restrictions which are placed on it by the existing legislation. It is true that the result of the failure of the Senate yesterday to pass the new legislation is that the proposed cooperative, like all other fanning co-operatives, will now be compelled to seek financial assistance by other means which may be available to it. Certainly one of the points of the legislation was to assist co-operatives in their financial arrangements and to get them off the ground. Nevertheless, I am sure that public opinion will make our opponents recognise the desirability of the passage of that legislation through the Senate in the future.
-I direct my question to the Minister for Aboriginal Affairs. Is it a fact that some 20 months ago he directed his Department to transfer 1,500 square miles of land to the Gurindji tribe in the Northern Territory? If so, when can the transfer be expected to be completed? Will the Minister be kind enough to let the Gurindji tribe know the progress to date?
– I have seen a report on the matter. Of course I was not Minister for Aboriginal Affairs 20 months ago so I gave no assurance. A statement was made that such an area of land would be made available to the Gurindji tribe at Wattie Creek. This transfer was held in abeyance awaiting the decision of the Aboriginal Land Rights Commission chaired by Mr Justice Woodward. The report has now become available and, as stated when I tabled it, the necessary machinery for transferring pastoral land will be effected by the establishment of a commission. We shall set up a commission as soon as we can draft the necessary legislation, which shall be in the Budget session.
I also made a statement at the time expressing some doubt as to whether the Bagot area and the Gurindji people came within the ambit of the assistance recommended in the Woodward report and whether it was right to wait until legislation had been enacted to set up a commission or whether we should set up an interim commission for the purpose of considering this proposal. We are in the process of trying to find a suitable commissioner to establish an interim commission. I think we will be able to announce very shortly the establishment of the commission to investigate the claim of the Gurindji people at Wattie Creek.
The secretary of the Department and I have recently been to Wattie Creek to discuss the matter of the area of land to be made available, and we reached a satisfactory situation with the Gurindji people. But there still remains the matter of excising the land so that we can make a viable pastoral property for the Gurindjis, without denuding other areas from which the land has to be taken and making them non-viable properties. Some arrangements have been made for the acquisition of an area from Vestey ‘s, and we could well extend into Victoria River Downs to find a suitable area. But we have the matter under control and we are speeding on with it as quickly as we possibly can.
-Can the Leader of the Government in the Senate confirm that the Budget sittings will commence on 1 7 September?
Debate resumed from 13 August (vide page 863), on motion by Senator Murphy:
That the Bill be now read a second time.
– When the Senate adjourned last evening I had discussed the main aspects of the Trade Practices Bill, the second reading of which is being supported by the Opposition. I had gone on to mention that particular Part of this Bill that was discussed also by Senator Guilfoyle last evening, namely, the consumer protection provisions set out in Part V and in respect of which the Opposition will be moving amendments to delete those provisions from the Bill. I said then and I say again that undoubtedly in the minds of the Opposition and certainly in my mind is the fact that this deletion is intended to show a constructive attitude and to be a constructive action. It is desired by the Opposition that there should be effective consumer protective legislation in Australia and not the creation of legislation which may appear to be comprehensive but which may, in its result, be not very successful.
I refer again to the statement made on 29 July this year by Mr R. J. Ellicott, the Opposition spokesman on consumer affairs. In regard to this Part of the measure he then said:
The Opposition is strongly in favour of consumer protection provisions and of substantial penalties for their breach. However, the Government’s present proposals will leave consumer protection legislation in a complete state of confusion and will not be in the best interests of the consumer.
He went on to detail the constitutional difficulties and the absence in the Bill of a provision for the establishment of consumer claim tribunals. He then said:
There is, however, a great deal to be said for federal laws fixing standards in relation to consumer products. What the Opposition wants the Government to do is to withdraw its consumer protection provision and hold discussions with the States with a view to producing an effective code which will cover all traders, ensure substantial penalties and give consumers the benefit of consumer claim tribunals.
Of course, there is a great deal of feeling in the community on the subject of consumer protection and this has risen in recent years. It has been observed by all parties and been encouraged by many active groups in the community. We have left the position we had previously where the consumer took just what he got, where manufacturers and agents and other people, with staff and ability, were sometimes able to trick the consumer and to give him something which was by no means what he expected to get. As evidenced considerably in recent years by State legislation, there is no doubt that there is a great desire for effective consumer protection. I emphasise the word ‘effective’.
In this Bill we are dealing with a Commonwealth power which is basically only jurisdiction in respect of the corporate power of the Commonwealth. It does not relate to individual dealings. Therefore the legislation, with one exception, deals exclusively with the relationship of the consumer to the corporation or the company and not the individual. It is beyond the power of the Commonwealth, of course, to deal with the whole wide ambit of this area of consumer protection. In fact there is a need for State initiatives and there will continue to be a need for State initiatives. It has been continuing; it will be continuing, and one would expect that irrespective of this Bill there will be a constant need for States to update their legislation as they find circumstances changing in their particular State and, of course, in Australia generally.
I refer to the fact that in many other fields we have seen the value of these State operations over many years. To take the case of the voting systems in the early days of Australia, the pioneering work carried out by individual States was copied by other states. It led to great improvements and, of course, these systems were ultimately adopted by the Commonwealth.
The appointment of an ombudsman started in one State, was tried in other States and developed and changed. It is the result of this interrelation between the States and the Commonwealth that the best legislation can come about. To try to impose, even if we could, a set of legislation on a Commonwealth basis may make it even more difficult to change when new circumstances arise in one part of Australia or another.
There is, as Senator Guilfoyle said last night, State legislation applying to various fields that are covered by the consumer protection provisions of this Bill. In some other fields there is very little legislation and a different situation might arise. For example clause S3 of the Bill relates to false representations- it was mentioned last night. It will be seen that from State to State there are already detailed provisions covering this area. One must be careful about wiping out or destroying the effectiveness of those existing provisions by some comprehensive but general and vague legislation. Senator Coleman said last night that there was a hotch potch of existing legislation- as though that was necessarily a bad thing. I would consider, on the other hand, that a variety of legislation and a variety of initiatives are in fact a good idea in this country, particularly as the areas of complaint are developing and changing from day to day. As I have said, in other areas- for example, home industries and the allegations made by people to encourage others to undertake home industries, which are dealt with in clause 59- there is little or no legislation on this subject in the States. The States deal more with the supply of goods used in the home. This may be an area where there is call for general Commonwealth legislation.
To give one more example of this, the pyramid selling legislation, which m this Bill is set out in detail, may not necessarily provide the best scheme available. The States have different legislation. There has been a lot of criticism and dispute about this subject. It is suggested in many quarters that the pyramid selling legislation in New South Wales does provide a greater flexibility for the ministry there to deal with particular schemes that may be developed and which may not come within the scope of the Commonwealth legislation. I summarise generally in this area by referring, if I may, to the recent draft ‘Federal Platform’ of the Liberal Party on consumer affairs. After pointing out the very great necessity for the free exercise of choice by consumers it said:
Liberal policy therefore affirms that the Federal Government must co-operate with the States to-
. Ensure that the law maintains a proper balance between supplier and consumer, and, in particular, offers protection against unfair or dishonest business practices which militate against equality of bargaining power.
Ensure the following fundamental rights:
a ) The right to be informed . . .
the right to be in a position of equal bargaining power . . .
c) the right to choose . . .
the right to safety .. .
e ) the right to be heard . . .
These are all matters in which the consumer must exercise his ability and enjoy his rights. The document states further that the Federal Government must co-operate with the States to:
I put it to honourable senators that the cooperation of State and Federal bodies will continue to be necessary for the proper implementation of legislation. I briefly detail 3 basic objections to the continuance of Part V of this Bill. It has been said and I agree with it- that there will be confusion between State and Federal legislation in many fields. There will also be doubt as to its constitutional operation. Senator Coleman said last night by way of an interjection that this Bill will mean the strengthening of State laws. I put it to her that unfortunately this Bill may not have that effect at all but may mean a weakening, particularly for an individual who wants to decide what he is going to do in a certain set of circumstances. There has been an endeavour, certainly in clause 75 of the Bill, to overcome the constitutional difficulty that may arise whereby all the effectiveness of the State laws may be wiped out by the overriding effect of the Commonwealth provisions. Clause 75 ( 1 ) of the Bill states:
Except as provided by sub-section (2) - which relates to offences and convictions- this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
As Mr Ellicott pointed out in the other place, that clause may well not have the effect which the Government intends. It is all right to say that an effect is not intended, but if the law has a certain meaning and effect that is how it will be judged by the Courts. Section 109 of the Constitution states:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
So it is a question of fact as to whether Commonwealth legislation in these fields is inconsistent with State laws. In my opinion, the Bill will wipe out the State laws in many of these fields, whether or not it is the intention of this Parliament to achieve that result. This clause may make it impossible for an individual in a State to have recourse to the consumer claims tribunalsthe Small Claims Courts in Victoria, Queensland and, I think, New South Wales- which are intended to enable persons to pursue, without legal cost, their claims against other persons.
The Commonwealth seeks to take away the right of an individual under existing State laws to execute his claim against a corporation. An individual who has a claim against another individual can continue his claim, but an individual who has a just claim against a corporation must go to a court under the Commonwealth Act, thereby incurring expense and difficulty. I suggest that this anomaly be ironed out before the legislation comes before this Parliament again. The Commission which is set up under the Bill has not the function of receiving and dealing with complaints from individuals. It has plenty of powers to advise people about their rights, but as I read the Bill the Commission has not the function of receiving and dealing with individual complaints. Therefore, I maintain that the very useful set of claims tribunals in the States should not be greatly weakened by legislation of the Commonwealth.
It has been said that there is need for uniform legislation. Apparently it is presumed that it must be legislation which we impose on the States, not necessarily the type of uniform legislation which, in the past, in a number of fields has been created by co-operation between the States and the Commonwealth. The Commonwealth, which has its Territories to administer and the States, which have their problems in their own jurisdictions, have got together in regard to other jurisdictions such as company law and have arranged uniform legislation which all parliaments have passed and which has had effective operation. It does not necessarily mean that the Senate must pass legislation to cover the whole field.
I deal now with a matter which Senator Everett raised yesterday. He said that there ought to be a reference of powers by the States. This may be so. But the Commonwealth does not appear to have approached the States for such a reference. It may well be that the results of further discussions between the Commonwealth and the States will lead to some useful reference of powers where such a course is obviously necessary because of the complexity of schemes which cover more than one State. So I suggest that uniform legislation does not necessarily mean that the Commonwealth should impose its legislation on the States.
The third matter which I say is good reason for reconsideration of the problem is the confusion of enforcement which is contemplated under this scheme and under the existing powers and existing organisations of the Commonwealth. In an interesting article in the ‘National Times’ of 12 August Mr Andrew Clark referred to the number of organisations which were already involved in the consumer protection area in the Commonwealth. The article stated:
Along with the proposed Customer Protection Bureau, and the Commissioner for Consumer Standards, the Purchasing Commission will be able to act as a major referral authority- in testing , usage and launching prosecutions.
Cabinet has still not decided on the position of the Customer Protection Bureau and the replacement for the interim Commission on Consumer Standards, which itself replaced a task force on consumer standards, appointed by Mr Morrison in May last year.
It now seems likely that the bureau will become part of the Trade Practices Commission. This would divide Government responsibility in the consumer area between Mr Morrison and the Attorney-General, Senator Lionel Murphy, with the former looking after Consumer Standards and the latter being responsible for their inclusion into the Trade Practices Commission, and prosecutions.
He pointed out also that a Commission of Consumer Standards was to be set up within the Department of Science. It seems to me that the whole area has not been sufficiently thought out, that there will be a need for reconciliation between the various areas of authority and that time is therefore needed for the Government to determine what its proposals are in this field. For these various reasons I maintain that it is desirable that these provisions of the Bill be deleted at the present time.
I entered this Senate having campaigned for many months on the basis, which I continue to maintain, that there is a great need to pursue the politics of construction rather than the politics of fear in this country. We must be vigilant in all kinds of things but I believe that overwhelmingly it is the duty of honourable senators and members of Parliament to be looking constructively at legislation. Although it may appear that this part of the legislation sought to be taken out is based upon the fact that there is to be a reduction of some Commonwealth power, I would suggest instead that it gives the opportunity for the Australian Government to consider a Bill where this matter could be dealt with alone. Consumer protection sits unnaturally in this Bill. It needs a rethinking by the Australian Government, discussion by the States and an attempt to take up those parts of Commonwealth power which are necessary for it to have. This may include the creation of standards which are Commonwealth wide and in respect of which one State cannot operate satisfactorily. There are a number of areas in which clearly the Commonwealth should act. It has gone beyond those powers and desirable objectives in this Bill. Therefore I think that those parts of this Bill should be removed for the moment and I hope that the Government will consider these proposals and will deal with them constructively as, I suggest, we as an Opposition have dealt with them.
-We are dealing with the Trade Practices Bill. It is a Bill which in the characteristic Murphy way deals with a subject, sprawling into areas where he has no jurisdiction, in the clumsiest of fashions and without the slightest regard to the experience of history. As to the principle of the Bill, the Liberal and Country Parties resurrected this area of principle from the moribund state, as it was referred to by Senator Everett yesterday, in which it had been left since the decision of the High Court in 1915. The Liberal and Country Parties resurrected this legislation and gave expression to proper trade practices legislation in the 1960s. But they took advantage of the experience that had been gained in the interim and therefore opted for the English pattern which had recently been adopted; they too, in England, irrespective of whether they are Labour, Liberal or Conservative, learning from the experience of history. So our legislation as it stands today depends upon provisions requiring the filing of agreements that restrain trade and then a purposeful application to those agreements of an administration. If there is no agreement between the administration and the parties affected there is provision for the matter to be resolved by the Trade Practices Tribunal.
I think that the Senate has taken too little advantage of the annual reports of the Commissioner of Trade Practices in its consideration of this Bill. At any rate the reference that has been made to it in the debate has been skimpy in the extreme. Anybody who reads the report for the year ended 30 June 1974 cannot be impressed by any direct recommendation by the administration that this form of legislation will be an improvement. Having regard to the fewness of members in the chamber and the obvious lack of interest of the Senate in the subject I am just going to pass over detailed reference to that report of the Commissioner of Trade Practices. But it is interesting to note that the case that pioneered the matter was the Tasmanian brewery case. A brewery within the confines of Tasmania was alleged to be monopolising trade against Carlton and United Breweries Ltd. Of course, due to the comparative lack of purposeful matters to be considered, that was a test case in order to have constitutional questions determined in the High Court. It was held that the Trade Practices Tribunal did not infringe the judicial power.
Other matters that one can see have been engaging the attention of the administration are practices by municipal authorities with the sole right to sell electricity in an area, adding to the sale of their electricity the sale of appliances and by giving discounts to home owners who install them. That is the son of iniquitous trade practice that has been singled out for attention under the administration. And fortunately for the common sense of the country, the High Court said ‘Get on with the business of dealing with trading corporations. Municipal corporations are not, in our view, within the meaning of trading corporations as in the Constitution’. But the report concludes with the statement that there are divisions between the political parties as to the 2 methods of administration, and all that the Commissioner says on the subject for the guidance of the Parliament is that it is advisable to have an early decision and in a conflict of high politics of that sort the administrator is not an advocate for either view. That is the substance of his concluding remark.
So we come to the situation where Senator Murphy puts before us, in substance, the proposition that there should be substituted for that updated administrative form of administration almost a blind copy of the American Sherman Act of 1 894. It is necessary for me to say only that such an ardent advocate for the civil rights of the consumer community and of the trade union community as Mr Justice Frankfurter, in writing his introduction to a book on this subject, very thoughtfully written in 1928 by Berman, said that the book: . . tells with a scholar’s soberness, the long story by which the judiciary, like a silkworm spinning its own cocoon, has given meaning to the meaningless language of the Sherman Law.
The meaningless language of the Sherman Law, which has had to be interpreted and expounded by the courts case by case to give it any practical commonsense or purpose! The Murphy Bill says in Part IV:
A contract in restraint of Trade or commerce that was made before the commencement of this sub-section is unenforceable . . .
I emphasise the words ‘a contract in restraint of trade or commerce’. That is the criterion upon which the chief thrust of this Bill is based. It is then gloriously specific in saying:
A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-
to eliminate or substantially to damage a competitor in that market or in another market;
to prevent the entry of a person into that market or into another market; or
to deter or prevent a person from engaging in competitive behaviour in that market or in another market.
In that wide language the Bill then commits to judicial proceedings, as distinct from administrative proceedings of inquiry and then reference to a tribunal, somebody who infringes that general language. The Bill’s next subject of complaint with commerce is that a corporation shall not in trade or in commerce engage in the practice of exclusive dealing. It says that a corporation shall not engage in the practice of resale price maintenance. It denies to a corporation the right to engage in exclusive discrimination in price matters and forbids mergers, and then makes a whole number of exceptions to those general statements.
It is the clumsiness and the confused and inefficient nature of the construction of the Bill that I condemn. But the Commissioner of Trade Practices has urged the need for a resolution of the conflict and it is quite obvious that the administration is not being encouraged by Senator Murphy to employ the powers of the present legislation. So the Liberal and Country Parties have decided that this provision of the Bill should not be opposed. I concur in that view for the time being. But there is a specific matter with regards to that aspect that I think needs to be brought into the focus of Australian public opinion immediately, that is, that Senator Murphy has in resurrecting the Sherman Act omitted the provisions of that Act and the subsequent American legislation that would deal with the most deleterious corporation operating in Australian commerce today, namely, the industrial corporation. The Sherman Act applied to all traders who exercised restraint in trade or commerce. After a long battle in the courts by the trade unions it was finally decided by the Supreme Court of the United States of America in 1909 that the trade unions were the subject of restrictive trade practices legislation in the form of the Sherman Act, as were commercial organisations. It is on record that 1 8 per cent of the cases brought under the Act up to 1928 were brought against trade unions or their members.
I pass by the long political history of the American legislation, which is a subject which, because it is a fascinating subject, will engage my attention when I go to America later this year and say that I believe that the application of the trade practices legislation to trade unions is the chief problem in political terms in Australia this very day. We all know how the activities of industrial organisations have bedevilled the trade and commerce of the United Kingdom and caused a degree of commercial impotence that has brought that country almost to its knees. That battle is being waged vigorously by the political parties there. If I have a chance to go to England after observing the elections in America in October, it will be a most opportune time for me to inquire into what I regard as the foremost political problem of our decade.
– I will give you a letter of introduction to Harold Wilson. I am sure that he will give you some information.
-I would be very pleased to have the honourable senator’s letter of introduction and to engage in conversation with
Harold Wilson if he had the time to talk with me. The disturbance that is being brought upon the community by an unparalleled spate of strikes and disruption by the trade unions has to be considered by any parliamentary democracy. I refer to an article by Sir Arthur Bryant which appeared in the ‘London News’ of April 1973 and in which he said that the 2 outstanding problems facing the United Kingdom are inflation and the power of organised labour. He went on to say:
For, unless the excessive power of the great trade unions, in pursuit of their sectional, instead of national, interests, can be restrained, galloping inflation is bound to continue and at an ever-increasing pace.
He went on to refer to the fatal social division between white collar workers and blue collar workers. He then said that the whole context is anachronistic and it is bringing the inflationary pressure to the boil. Then, with his sense of history, he likened the turbulent, unrestrained mob rule of the industrial organisations, with their tremendous power, to that of the robber barons of 6 centuries ago who, with their tribes, besieged the castle and demanded this, that or the other of the neighbouring baron. He said:
Though natural enough and, in view of the unions’ immense bargaining and intimidatory powers, almost inevitable, this has bedevilled, and is continuing to bedevil, the country’s economic stability.
As usual, I do not entertain these anxieties simply on notions nurtured within my own thinking. I have just referred to Sir Arthur Bryant who, I think, has put into crystal clear language one of the problems of the age. It is important to remember that, whilst this Murphy Bill is directed against trading and commercial organisations, it specifically exempts industrial organisations from any control or restraint with regard to practices which in the commercial field are condemned and in the industrial field are condoned and in fact, according to all the speeches of members of this maudlin Ministry, encouraged.
Similar legislation went through a long travail in the United States where it is in keen discussion at the present time. That discussion has not been completed. The question is whether the Congress- this applies to the Parliament herewill be able effectively to control industrial organisations and impose upon them those rules of restraint which are thought to be salutary in relation to commercial operations. On that will depend whether this democracy survives or whether it is reduced to a disgracefully low and unlawful level. Events reached a pitch in the number of strikes in America just after the war, when the Taft-Hartley Act was passed in a period when this was written into the legislative program of the day:
If anybody thinks I am quoting that report of American history of 1 945 out of context he has to read only the impressive unanimous findings by the 3 judges of the Industrial Court in the case for the deregistration of the Builders Labourers Federation to find a catalogue of violence which brings to Senator Murphy’s face only a smile, and then to see the degree of interruption which is being enforced in Sydney. It is on record in that case- it still continues- that that union’s embargo is holding up $3,000m worth of building construction. The American record goes on:
The secondary boycott had become an exceedingly powerful weapon. . . . Abuses of power under closed or union-shop contracts, although exceptional, gave force to the attack upon all union security agreements.
The Taft-Hartley Act declared as policy:
Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimised if employers, employees, and labour organisations each recognise under law one another’s legitimate rights in their relations with each other, and above all recognise under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardise the public health, safety, or interest.
The Taft-Hartley Act of America was grafted on to the Sherman Act. Senator Murphy had deliberately adopted the Sherman Act and ignored the subsequent American legislation, including the Taft-Hartley Act. The Taft-Hartley Act said:
It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labour organisations whose activities affect commerce, to define and proscribe practices on the part of labour and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labour disputes affecting commerce.
I have here other most thought-provoking statements, which I shall bring to the attention of the
Senate, from American authorities who are very anxious about the irresponsible and uncontrolled status of labour organisations which Senator Murphy has deliberately excluded from the operations of this legislation. Although commercial and trading corporations are included in the definitions of the legislation, Senator Murphy is deliberately excluding industrial organisations from the provisions of the Bill he is today presenting to the Parliament. Clause 51 (2) states that in determining whether there has been restraint of trade, exclusive dealing, monopolisation or any other practice proscribed other than resale price maintenance, regard shall not be had: to any act done, or to any provision of a contract, in relation to the remuneration, conditions of employment, hours of work or working conditions of employees, or to any act done by employees or by an organisation of employees not being an act done in the course of carrying on of a business of the employer of those employees or of a business of that organisation;
The authorities that I have quoted make it transparently clear that one of the foremost problems of trade in our situation is to ensure that there is a law preventing disruptive restraint which is applicable not only to commercial organisations but also effective against industrial organisations. But in accordance with the partisan disruptive philosophy of this Government which panders to the trade unions for the disruption of industry, Senator Murphy makes this a deliberate exception to the proposed Act and the practices of trade unions are to go uncontrolled by the Act.
I conclude my remarks on that matter at this second reading stage of the debate. I simply want to indicate that with regard to the section of the Bill that deals with consumer purchasing rules, I would think that this is probably one of the most confused, irrational steps that even Senator Murphy has presented to the Senate. We have legislation in every State dealing with this subject. That legislation has been enacted by parliaments that are familiar with the long history of the rules that regulate contracts for the sale of goods and for hire purchase and other things including provisions to ensure the quality and suitableness of such goods for trade purposes. The Commonwealth has no power over such intrastate matters except insofar as they can be brought within the corporation power. To impact a discordant pattern of rules conceived and expressed by Senator Murphy upon the long existing pattern of State legislation in this field would be putting the consumer to the problem of having to litigate the question of Federal-State inconsistency on many occasions and would be giving to the powerful merchant the advantage that he undoubtedly has in litigation from a long pocket as compared to the smaller consumer. Therefore, for the purpose of the public interest of the consumers, consumer sale law ought to be left in the area closest to the consumer, that is, the States which have adequate Parliaments and adequate courts to enforce their laws. Consumer sale law should not be inveigled into this cocoon of confusion that has been the result of the intervention of Senator Murphy who comes in and puts a big foot into the bog and says: ‘That is Murphy’s imprint. You must pass this irrespective of what is the proper area of parliamentary authority or State concern.’ With that degree of enthusiasm, I am not opposing the second reading.
– Senator Wright certainly speaks from a very well qualified base when he talks of disruptive tactics because he certainly used his vote yesterday to disrupt very important legislation and he continues his disruptive tactics today in his many sided argument. The argument is an interesting one but we still await, of course, the amendments which are to be proposed to this Bill by those in the disruptive Party in this House. But if they follow the amendments proposed in another place by the party which Senator Wright supports, we will find that there are many sides to his argument. He finished by speaking against the powerful merchants, as he calls them, yet his Party in the other place moved amendments which will very considerably water down the effectiveness of this Bill against the powerful merchants. That son of argument may sound very impressive, as Senator Wright can be impressive in his speech, but the logic would escape most people who seek it.
I support the Bill and I support it in its entirety except for perhaps one or two minor aspects of amendment. But I certainly support the consumer section in Part V of the Bill. I wonder, when I look at members of the Liberal Party of Australia and the Australian Country Party, whom they represent in this place. I would like to know whom they take their advice from. The political advice, wherever they get that from, is, of course, utterly disastrous.
– As it was in South Australia when you ran it there.
-The senator can argue that another time and in another place. I am dealing with the present series of Bills that have been presented to this House and the utterly disastrous political position that the Opposition parties put themselves in. All I can say is that there is a considerable number of people in the community which is growing day by day that will certainly take on this opposition from a non-Labor view. There is a tremendous amount of dissatisfaction in the community with the sort of attitude which has been voiced here today. There are 13 million consumers in Australia and in regard to this Bill the Liberal Party and the Country Party are against all of them. That is not a bad round-up for a political base. Who on earth do the Opposition Parties take their view from? Who advises them politically? They can bring up a number of dissatisfactions in the conflicts they may foresee in the future but the real point of the matter is that to go back and say that the States can get together amicably and in time- it is somewhat urgent- to present a unified front to produce in 6 States the necessary consumer protection legislation ignores completely the fact that there is a State, namely Queensland, which would like to draw a fence around itself on very many occasions and that there are political differences of great extremes between the States. Apart from that there is the parochial view that the States take in these matters which stands against any early implementation of the ideals presented by the Opposition. One cannot expect from any experience or any track record of Premier’s Conferences to have any great consistency between the States. States have consistently sold each other out for parochial interests. I have seen it happen, and it will happen on important matters like consumer protection.
-The only little man in the Army in step.
– I could not understand that interjection. Perhaps it is some lack of comprehension on my part. I could not understand the words to begin with, let alone the meaning. I was pleased to hear Senator Missen speak, and I must congratulate him on speaking extremely well to the chamber. I congratulate him on his maiden speech. Although I cannot agree with his sentiments, I know that he holds his views sincerely.
The practical factor about consumer protection is that if this legislation is not passed by the Senate in this form and in the particulars to which it relates, it will not eventuate; it will not come into being during the time we are considering at the moment. The Opposition, if it is able to do so, will defeat the legislation. It has been put to me that the Opposition is making its move with far lower motives than those which have been stated and that it has given promises to certain people and is acting accordingly. (Opposition senators)- Oh!
-To whom do Opposition senators listen? Whom do they represent? That is the big question that has arisen in this chamber in the last few days. It is difficult to find the answer to that question. The Opposition is not representing the truly Liberal people in this community. It is not representing anyone in particular in knocking out consumer legislation which is wanted by nearly every consumer organisation in Australia, if not all, and these organisations are not all Labor Party fronts. The Liberal Party does not have all that happy a history in matters relating to trade practices. As I understand it, Sir Garfield Barwick intended to move fairly comprehensively in the trade practices field. When Mr Snedden took over the trade practices legislation it was considerably watered down. We are moving again to introduce trade practices legislation which is closer to the legislation which was originally introduced. From listening to the remarks of Opposition senators one would assume that they support trade practices legislation, but from the action of Opposition members in another place in moving substantial amendments to the legislation one would assume that they are trying to defeat it.
- Senator, I thought you said a moment ago that you were not in complete agreement with this Bill.
– I think Senator Webster had better listen more carefully and not try to disrupt debates by raising quite irrelevant small points.
– This is quite important, really, because you are criticising the Liberal Party. I understood you to say that you did not agree completely with the Bill.
– There are several minor parts which I believe should be amended.
– Surely you are not going to water it down after what you have said.
-If Senator Webster likes to compare a few minor amendments with the destruction of Part V of the legislation or the considerable watering down of clause 45 or some of the other amendments which were moved in the lower House, we will just have to agree to disagree entirely on the merits and worth of that comparison. I have been subjected, as I believe all members of Parliament have been subjected, to a great deal of lobbying on these issues. The lobbying as far as I am concerned has been divided into 2 interest groups. There is the retailing section of the community, and I speak of the large retailing section of the community -
-Labor got $50,000 from one of them.
– I would not like to retail what the Liberal Party got. If Senator Webster wants to go into past practices, I will have him on on that one.
– From what I hear you put the screws on a few of them yourself.
-If Senator Webster wants to debate those factors I can elucidate. I can inform him of a lot of things which he does not know at the moment, but I do not intend to be drawn into breaking confidences simply because of the rather inane interjections by Senator Webster. The representations on this legislation have been divided into 2 main interest groups. The big retailers of the Australian community, in the representations they have made to me, certainly have not approved the trade practices legislation. Whilst their representativeshave said basically that they do, the effect of their first try at placing amendments in the hands of members of Parliament has been to water down the legislation and make it much less effective than it ought to be. On the other hand, the manufacturing community has been far kinder in its assessment of this Bill. I have generally found it in favour of the Bill practically as it stands. Statements have been made to me that any honest manufacturer has nothing whatsoever to fear from any part of this Bill.
As the representations have gone on the division has quite clearly been made on the basis of retailer having a different view from manufacturer. There is no doubt that retailers have been exerting quite undue influence- or should I say undesirable influence- in their discount concessions. There have been quantity discounts and there have been muscle discounts. It seems that trading organisations have simply been saying: If you do not give me an additional overriding discount I will take you off my shelves and put your competitor on.’ This Bill will wipe out that type of discount, thank goodness. I believe that the divisions of thought have been well brought up by representations that have been made by the various interested groups. Obviously, those who do not like the Bill will bring forward, and have brought forward, their versions of why it should be altered. Those who approve it have brought forward counter versions. I believe that the argument has been pretty well presented to the Parliament on that basis In addition, the consumer organisations of Australia have overwhelmingly supported the consumer part of the Bill. In my own experience, that part of it is necessary. As to whether there will be conflict between State and Federal jurisdiction I cannot say, but I assume -
– What do you think?
-I am about to say that I assume that Part V of the Bill will generally be beneficial and will raise the level of standards at which corporations must operate and present their goods to the public. For that reason I support that part of the Bill. Obviously, I reserve the right to talk about the machinery but nevertheless minor amendments.
- Mr President, -
-Mr President, I rise under standing order 410.
– I want to speak.
– I rise under standing order 410 and claim the right as a senator who has spoken to a question to be heard to explain himself in regard to some material part of his speech which has been misquoted or misunderstood. I am not to introduce any new matter. I have listened to what Senator Hall said. I regret taking this point because Senator Hall is a relatively new senator. But I was the person who spoke on behalf of the Opposition and I was the person who indicated why amendments were being produced. I said quite specifically yesterday what was the attitude of the Oppositionthat it was supporting the Bill but was moving amendments in order to improve the Bill.
- Mr President, I cannot quite understand what is going on here and I am raising a point of order. What device -
– I am in the course of making a personal explanation because I have been misquoted and misunderstood.
– A personal explanation, my foot! You are continuing the debate. It is a repetition of the case that you put yesterday.
– Order! For the information of honourable senators I will read standing order 4 10:
A Senator who has spoken to a Question may again be heard, to explain himself in regard to some material part of his speech which has been misquoted or misunderstood, but shall not introduce any new matter, or interrupt any Senator in possession of the Chair, and no debatable matter shall be brought forward or debate arise upon such explanation.
I call Senator Greenwood.
- Mr President -
- Mr President, I wish to speak to your ruling. Would it not follow from your ruling that such action by a senator ought to be taken at the end of the relevant debate.
-No, that is not so.
– The Standing Orders say that a senator can take this action.
– That means that Senator Greenwood can rise on a number of occasions to interrupt the debate and to disturb the facility for other honourable senators to participate in the debate.
– I will confine Senator Greenwood to his personal explanation.
– I assure you, Mr President, that it is my intention to do that and not to introduce debatable matter. But Senator Steele Hall stated quite specifically that the purpose of introducing these amendments was to be disruptive. That I categorically deny.
– A point of order!
– In the first place, I never said that.
– I am taking a point of order!
– If that be the part of my speech which he -
– Order! I will hear Senator Wheeldon on a point of order.
– My point of order is that Senator Greenwood is making a mockery of the proceedings of this Senate. He is introducing -
-Mr President, I object to that remark.
– I am raising a point of order.
-Mr President, I direct your attention to the standing order which provides that an honourable senator may not make imputations against or reflections on another honourable senator.
– Do I have the call, Mr President?
– I am hearing Senator Wheeldon on a point of order.
– My point of order is that Senator Greenwood is introducing debatable material in discussing whether there is obstruction. The purpose of this standing order is quite clear. It is that if some material matter or some statement of fact has been misinterpreted or misquoted by a succeeding speaker, an honourable senator being so misinterpreted or misquoted is entitled to correct such a misapprehension if there has been such a misapprehension. He is not entitled to enter into a debate whether he has been obstructive or not obstructive. I ask you, Mr President, to see that Senator Greenwood ceases this policy of disrupting the proceedings of this Parliament and making a mockery of its procedures.
– On the point of order, we will make a mockery of the procedures if honourable senators lose their tempers and indulge in histrionics. As I understand it, the point of order that has been taken concerns the attempt by Senator Greenwood to make a personal explanation.
– What? In the middle of a debate?
– That is what the standing order provides for, and I did not write the Standing Orders. As I understand it, Senator Greenwood claims that a previous speaker said something about why Senator Greenwood was taking a certain course of action. I believe that Senator Greenwood is entitled to say that he did not say that he would do a certain thing because he wished to indulge in a certain course of action. I think that that is quite clear. Further, my understanding is that Senator Greenwood had almost finished his personal explanation and was about to sit down. If we wish to disrupt the proceedings and never get the Bill passed- well, that is up to Senator Murphy.
– I rise to speak to the point of order. We have Standing Orders for the regular conduct of the affairs of this Senate. The Standing Orders although generally expressed are to be understood in some reasonable fashion and a proper spirit is to be applied to the interpretation of their construction. The purpose of the standing order in question is to cover situations where there might be some specific matter on which a senator is misunderstood. An honourable senator may say that he said something when he really intended to say the opposite or make some other point This standing order provides the opportunity to a senator to speak- it is akin to a lond of personal explanation- to point out something which would affect him personally or to refer to a matter which might go to his integrity. An honourable senator has the opportunity to clear himself. But if the meaning of this standing order is to be distorted and if the standing order is to be used- and this is an extreme example of an attempted abuse where a senator rises and -
– I rise on a point of order.
– I am hearing Senator Murphy.
– An honourable senator is not allowed to use offensive expressions in the course of taking a point of order. I submit that there is a standing order which provides that no senator shall impute improper motives to another senator. I object to the statement by Senator Murphy that I am attempting to abuse the Standing Orders. My purpose is clear and I stated it to you.
– I call Senator Murphy on the point of order.
– I would submit to you, Mr President, that it is outside the provisions of this standing order for someone to engage in purported general explanations of his whole stand on a Bill and to use this standing order as a basis on which to rise and say: ‘Look, I am not really being disruptive, nor is the attitude which the Opposition is taking. This is our whole approach on this Bill or on the matter under consideration’. That is not the purpose at all for which this standing order is intended to be used. It is intended to cover specific instances where there has been some real misunderstanding or misinterpretation of a particular matter which has arisen and especially a misunderstanding or misinterpretation which would touch the standing, reputation or integrity of a senator. This is an attempt to make another second reading speech. I submit that it should not be tolerated.
- Mr President -
- Senator Greenwood, before you continue, I just say that the Standing Orders provide that you may make an explanation if you have been misquoted or misunderstood. This explanation is to inform the Senate of the way in which you have been misquoted or misunderstood.
– I know that several times yesterday in the course of my speech I gave reasons why the Opposition was moving the amendments. A copy of Hansard has been brought into me and just glancing at it I noticed that right at the conclusion of my speech I stated:
We will not oppose the second reading of the Bill but at the Committee stage, as I have indicated, we shall seek to make it a much better Bill.
I do not debate this matter and say that the Opposition has that right. I simply say that for Senator Hall to say that the Opposition’s purpose is to be disruptive is misunderstanding what I have said. That is what the Standing Orders states. Senator Hall also attributed to the Opposition, and to me as the person who indicated the Opposition ‘s attitude, lower motives. He accused us of giving promises to people and he questioned whom we represented. I, as the person who indicated the Opposition’s attitude, simply say that I represent nobody in this chamber but myself and my sense of what the people of Australia sent me here to do. I assure -
- Mr President, I raise a point of order.
-. . . the honourable senator -
– Point of order.
-. . . that that is the attitude of Opposition senators.
- Mr President, I am raising a point of order. I suggest that you deal with Senator Greenwood for defying the ruling of the Chair and entering into a debate about what the people of Australia sent him here to do or not to do. This is acting completely contrary to the Standing Orders and your ruling of the Standing Orders. I suggest that it is quite apparent that he is setting out to disrupt the proceedings of the Senate and that there is no other motive. I submit that he should be dealt with by you for defying your ruling.
– I am not setting out to disrupt the proceedings of the Senate. Every honourable senator has his rights under the Standing Orders, even honourable senators on the Opposition side in this place. I shall assert those rights whenever I get the opportunity.
- Mr President, I raise a point of order under standing order 4 10. 1 believe that I have been misunderstood and I believe that I have the right to use that standing order. I explain that at no time in my speech did I say that Senator Greenwood said that he wanted to disrupt. In fact, I made the very point that while Senator Greenwood does not say that he disrupts, he does disrupt. I made that very point in my speech. That is what I explained.
- Mr President, I raise a point of order. My point of order is that the imputation of improper motives to an honourable senator by saying that he disrupts is offensive. Honourable senators on the Government side may laugh but to accuse any person of being disruptive in the way in which Senator Hall did is to impute a deliberate intent of doing it. I submit that rulings by occupants of the chair are such that an honourable senator who makes such an accusation is acting contrary to Standing Orders.
-Mr President, I would like to continue my explanation, if 1 may.
– I understand this to be a criticism made in the heat of the exchange of politics rather than a personal attack on Senator Greenwood. It is a political exchange.
-As I see it and as most of the public of Australia see it, I was descriptive of Senator Greenwood’s Party. I said that the Opposition was being disruptive. Now I am explaining what I said. Mr President -
– Order! I remind Senator Hall that he must confine himself to explaining to the Senate where he has been misquoted or misunderstood.
– What I did not say was that the Opposition has a legislative blood lust, which it does have. In simple terms I said that the Opposition is disruptive. Sena’tor Greenwood has simply disagreed with me. There is nothing more to explain. I stand by what I said and I shall state it publicly and more firmly.
-In speaking to the Trade Practices Bill I remark on the attitude of Senator Hall to what has been said in this chamber by honourable senators on the Opposition side. In the very short time that the honourable senator has been in this chamber I have heard so often from this mastermind of Australian politics, from this ‘Labor’ leader from South Australia, what small fry and nincompoops we on this side apparently are. Now he is accusing us on this side of representing certain interests from which we have received instructions. I say this to Senator Hall: I receive no instructions from anyone and I always vote in this chamber according to what I think. I defy Senator Hall, this newcomer in the Senate, to show otherwise. When he makes these claims or charges, he ought to have some foundation for them. Last night we saw a similar demonstration. Now he stands here and says that he is antiLabor; but there would not be a stronger Labor man in the Senate than Senator Hall.
Senator Hall also stated that the Bill now before us is practically the same as that which Sir Garfield Barwick wanted to bring in. I say, with due deference to the people who have sponsored any trade practices legislation, that this Bill is based on a different principle from those of previous days. Until now the Trade Practices Act has operated in this country on the English basis. I think that the Attorney-General, Senator
Murphy, would be willing to say that this Bill proposes to change the trade practices legislation more towards the American system. I think that is the particular difference. For Senator Hall to stand up and say that this Bill is exactly the same as that brought in by Sir Garfield Barwick shows how strong is his Labor bias.
Senator Hall also referred to the speech made by Senator Wright. In the 25 years that I have been here I have heard Senator Wright make some very fine contributions to debates in this chamber. I believe that when reports of the Senate debates are read in the years ahead the Senate will receive a lot of credit, particularly for the contributions by Senator Wright. What is more, Senator Wright has adopted an independent attitude in regard to legislation, not only while we have been sitting on this side of the Parliament, in Opposition, but also while we were in office. I think Senator Murphy would agree that Senator Wright made a good contribution to this debate and that in it he brought forth certain aspects for our consideration. If one of those aspects does not strike home to Senator Hall he is pretty dumb.
One of the important aspects that Senator Wright brought out was the omission of control over industrial unions. I think it can be said that this is an omission from the Bill, whether it was done by design, as a result of the natural thinking of the Attorney-General about trade practices, or whether it was done from a political point of view. I cannot say the reason, but I think that control over industrial unions should be included in this Bill. To suggest that Senator Wright’s speech was of no consequence shows how little the Labor senator from South Austrafia, Senator Hall, really considers debates in this chamber. I have listened to several speeches from Senator Hall and I have yet to hear him use a good, solid, compact series of arguments in this chamber. I am still waiting. I thought I should rise and state my sentiments and let the Senate know that what has been the situation in the 25 years up to now is still the situation, namely, that I am not being dictated to by anyone outside this Parliament.
-I wish briefly to take advantage of standing order 410 as I claim that the remarks I made in relation to Part V of the Bill have been misunderstood. I was the Opposition speaker who stressed our point of view with regard to this part of the legislation. I would like to convey to Senator Hall that the remarks which he made with regard to our seeking uniformity of State legislation in no way express the attitudes which I put forward last night on behalf of the Opposition. The main object of my point of view and of the Opposition ‘s point of view with regard to consumer legislation was to stress the diversity of State legislation which is required to deal with commercial practices within the State. To talk of his attitude being based on our seeking uniformity and the urgency which is required misrepresented the remarks which I made last night.
Senator STEELE HALL (South AustraliaLeader of the Liberal Movement)-Under standing order 410 I would like to explain, further to the remarks of Senator Wood -
-Standing order 410 states that no debatable matter shall be brought forward or debate arise upon such explanation. I will have to confine remarks to the strict letter and spirit of the standing order. I would like Senator Hall to confine himself to pointing out where he has been misquoted or misunderstood.
-Thank you, I do so. Senator Wood said that I had called members on his side of the House nincompoops and small fry. That statement would appear m Hansard and therefore I think I should correct it. I have never called them that publicly; I have only inferred it.
-in reply- I should like to thank honourable senators for the tributes which they have paid to the legislation and to those who prepared it. Indeed one could say it is remarkable to see how well honourable senators have kept to the subject matter in hand and have not allowed themselves to be diverted to other and more interesting byways. The legislation is very important. Its history has been marked by one of the most successful filibusters to be conducted in the Australian Parliament. The legislation is substantially the same as it was on its first introduction last year. If the legislation had been passed then I think we would have been able to use the laws to combat the inflation which is affecting our economy. I am sure that consumers would have benefited from those provisions which would protect them from false, misleading and deceptive practices which are being carried on all over Australia.
If one were convinced by the contentions which are put up by the Opposition, one would think that there is no need for consumer legislation. But there has been nothing to stop the States from getting together and developing consumer protective legislation which could operate properly and on a uniform basis throughout Australia. If it is an argument that the national Parliament should not introduce consumer protection because the States can do it, why have the
States not done it? Why is it that organisations familiar with what is going on in the consumer protection area are supporting this legislation and asking for it? If all is well- as Opposition senators pretend- why is there this great concern throughout the nation? Senator Guilfoyle sits there contemplating the question which I put. What is the answer to it? The answer is that the States have not developed the legislation and are not going to develop the legislation. It is necessary to have national laws if the consumers are to be protected.
– How will you help if the traders are not corporations?
– We will help them to the full extent of the national power. Almost all of what is done in Australia is done either by corporations or in connection with corporations. The breadth of these laws goes into the other areas of national legislative power and deals with interstate trade and the various ways in which the legislative power of this Parliament can be used to enter into this field. It would be much better for the States, if they so want, to fit in with national legislation, to carry out consumer protection in their own areas where the national Parliament cannot reach or to refer the power to this Parliament so as completely to cover the field.
Sitting suspended from 1 to 2.15 p.m.
-I do not think it would be useful for me to go over all of the remarkable statements that have been made by Opposition senators and endeavour to analyse them or counter them. I think that this legislation has been so long before the Senate and before the country that enough consideration has been given to it and to the motivation of those who have sought to oppose it and those who have sought to delay it. I think I should say, however, that the Bill is very close to the form in which it was originally introduced. My officers and I have spoken to a great number of people throughout the community. We have received proposals from both individuals and organisations in industry and commerce. We have had a great deal of advice and a great many suggestions from consumer groups. There is almost universal support for the bill. In fact, I have been rather astonished at the strength of some of the support from various groups which one might have thought from listening to the Opposition were opposed to the Bill.
– Are you suggesting that they are speaking with 2 voices, one to you and one to us?
– No, I think they are speaking with one voice to which we are listening and to which the Opposition is not. I have taken note of the amendments which were proposed in the House of Representatives. There have been some discussions in relation to these amendments. We have modified some of the proposals which have come from the Opposition side or from other quarters, and I have done my best to meet any constructive suggestions which have been made. During this debate and during the consideration of the Bill in Committee I will continue with my endeavours to meet the proposals which are put forward. If a proposal is put forward which will be helpful in improving the Bill, certainly my attitude will be to accept it. It would be absurd not to accept it. We are not the embodiment of all wisdom; we have not a monopoly of it. Although I have spoken to a great number of people and received their suggestions, I am not dogmatic in my attitude to the particular provisions which are in the Bill. We want to have the best Bill that we can, and I will accept any proposal which improves it. If I am not convinced of the wisdom of certain proposals which are put forward but I can see that they will do no great harm, I will accept them if other honourable senators think that they will improve the Bill. I will resist attempts to destroy the Bill. Sometimes what might seem to be a fairly harmless kind of amendment could be destructive of the legislation, and such amendments will be resisted.
Honourable senators may have already had circulated to them some amendments which I propose to move. But it should not be assumed that because the Government is putting forward amendments at this stage there is therefore some great change in the Bill, because there is not. Although some of them may be fairly lengthy they deal with comparatively minor matters in the Bill. The Bill would be perfectly all right if it went ahead exactly as it is. But it is with this spirit of trying to meet, even at the last minute, objections which might be made and bending towards them that we put forward certain proposals. They do not touch the substance of the Bill. Although, as I have said, some of them are quite lengthy they deal with changes to the Bill which are relatively trifling.
It is important for us to judge this kind of legislation in the context of our democratic system of government. Here is legislation which is substantially the same as was put forward 12 months ago. It ought to have been passed; it was in the interests of the people. Yet for party political interests honourable senators opposite considered that they should prevent the Bill from coming into operation. I think our country has suffered from that. I think that what has been done in this chamber, as I have said several times before, is not merely undermining the Government and its attempts to administer the country properly; it is undermining the system of government. The kind of filibustering, the endeavours to prevent sensible legislation being enacted, are not helping Australia. The Opposition may say: Here you are 12 months after the Bill was first introduced and there are some changes in it.’ Of course there are changes. The changes could have been made if the Bill had been passed and we had had the experience of it. I repeat that the changes are relatively trifling when one looks at the substance of the Bill. I hope that the Senate can rise above the party political warfare that has been conducted here and not do what was done yesterday but pass the Bill, which is manifestly in the interests of the people.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
– The Opposition has an amendment to move to this clause. This clause, of course, indicates when the Bill is to come into operation and it has a number of provisions indicating that various clauses in the Bill are to come into operation at different times. Therefore, it is a very significant clause. But in moving the amendment proposed I must say that we in the Opposition respond to the overtures made by the AttorneyGeneral (Senator Murphy). We want to look at this Bill constructively with a view to making it a Bill which will work as well as its general intent can permit in the interests of regulating trade practices in the interests of the consumer and in the interests of a competitive economy.
In the second reading debate we said why we would have preferred a different type of Bill altogether and why we regret this particular approach. However, we are now considering the Bill in the Committee stages and the Senate has decided that this is the approach which should be adopted. Therefore, we will look at the approach with a view to improving those parts of the Bill which we think can stand improvement. Whether our views will be the views of the Senate as a whole I am unable to say. But certainly the amendments we are proposing will be amendments which we have argued and advocated the considerations of which initially prompted us to move amendments. I regret that in the earlier stages Senator Hall stated that he just could not see anything of merit in the amendments, although, as he said in his speech, he had not even seen the amendments. We regret that he took that view. I hope that Senator Hall will at least hear what is argued on behalf of the proponents of the amendments with a view to retreating from the position which he adopted in the second reading debate. Without having seen any of the amendments which we propose to move he indicated that he felt the Bill was a good Bill and he could not see, apart from one or two areas, where any amendment was necessary. I regret, however, that Senator Murphy has spoken about Party factionalism and filibustering having occurred. The role of an Opposition is surely to ensure that legislation -
– That is a second reading speech. You have already had three.
-Senator Murphy makes comments and assumes that no one ought be allowed to reply to them. There is no question that when there is a Bill of this character with completely new concepts time to consider must be given not only to an Opposition but to many people throughout the community who are affected by it. The suggestion of improper motives, that in some way the Opposition was simply attempting to filibuster this Bill, is completely unwarranted and untrue. All we have been seeking is a proper understanding of the Bill. We were prepared to deal with it in the early part of this year. In the intervening period there has been a wide opportunity for people to look at it and make their submissions. The Opposition has received many submissions from many organisations expressing concern about many provisions of the Bill. How that squares with what Senator Murphy has said as a general indication of support for the Bill, I am unable to say.
– I rise on a point of order. I understand that we are debating this Bill clause by clause except where no amendments are to be put. I suggest that the former Attorney-General should confine his remarks to the clause under discussion and that he should not go into another second reading speech.
– The point of order that is taken by Senator Poyser is not upheld.
– Then we can have a general discussion on all clauses now?
– No, we cannot, but, if Senator Greenwood would bear with me, I think I must ask the Attorney-General to move his amendments, I do not know whether the amendments of the Government have been circulated.
– Yes, I think they have.
– Have all honourable senators the Government’s amendment?
- Mr Chairman, I was on my feet until a point of order was taken and I have indicated that we are moving an amendment to this clause.
-The point is that I had asked one of the attendants to bring a copy of the Government’s amendments but I did not have them except for one sheet. I now have before me amendments which the Government apparently intends to move to clause 2. The first line to be disturbed in clause 2 is line 1 1 and the Opposition, so far as I understand it, is to move an amendment to line 12. That being the case, in these awkward circumstances, I am afraid that the Government should move its amendment first. If the Attorney-General agrees, I think Senator Greenwood should complete his remarks and then the Attorney-General can move his amendment.
-This is going to prove tremendously difficult. I indicated that we were proposing to move an amendment. The Opposition ‘s amendment is the same as the amendment which was moved in the House of Representatives and there is an argument to be put in support of it. At 12.40 p.m. today I was given a list of amendments which are to be proposed by the Government. I saw that the first amendment dealt with clause 2. My initial reaction was that we can debate the Opposition’s amendment, and in the course of that debate an argument for or against it will be raised; I assume that it will be an argument against it. When it has been disposed of, there will be an opportunity for the Government’s amendment to be considered and as it obviously arises from a consideration of the Opposition’s amendment, we will be better informed to deal with it.
Quite frankly, I have given the scantest attention to the Government’s amendments because I assumed that they would be debated after the Opposition’s amendments were debated. When the Opposition’s amendments were before the House of Representtives, the Government took the view that because it had them for only an hour it could not give consideration to them. In every case the Government voted against them, sometimes for good reasons, other times simply because the Government did not have time to consider them. Under your proposal, Mr Chairman, we are faced with the position of having to deal with the Government’s amendments which I received just 1% hours ago. I looked at them briefly, notwithstanding the lunch period. Other senators received them only in the last 5 minutes. Those amendments are supposed to be put before all our amendments which have been available for honourable senators to read in Hansard for the past two or three weeks. I wish to enter a protest at the course which is being adopted because, unquestionably, it will not be as tidy an approach or as quick an approach as we would like. It is obviously sensible to deal with matters with which we are familiar, then deal with new matters when the familiar matters have been disposed of.
The CHAIRMAN (Senator Webster) Admittedly, copies of the amendments were circulated only a few minutes ago. The Government’s first amendment seeks to leave out subclauses (3) and (4) in total. The Opposition’s first amendment seeks to leave out certain words in those sub-clauses. It would be a waste of time to discuss the Opposition’s first amendment if the Government intends to substitute completely new sub-clauses. The Committee may be in some doubt as to what it should do. I rule that the Attorney-General move his amendment first. I appreciate that Senator Greenwood had the call. Unless there is something in the Government’s amendment which Senator Greenwood seeks to delete, I think we should by-pass his amendment.
– I move:
Leave out sub-clauses (3) and (4), substitute the following sub-clauses:
for the purposes of the application of the sub-section concerned in relation to any other contract, arrangement or understanding- as a reference to the expiration of the period referred to in sub-section (4) of this section.
This amendment deals with the provisions which relate to the coming into operation of the Act. We want the Act to come into operation smoothly. A lag is prescribed in respect of certain provisions. I think that this amendment ought to meet the Opposition’s objections. It goes a Utile further. I trunk it incorporates exactly what the Opposition wants, but it provides that price agreements will not be entered into during the 4 months time lag. Otherwise there would be a period of open slather on price agreements. I suggest that Senator Greenwood look at the amendment. He is very astute and very rapid in his understanding of complicated legal provisions. As the amendment incorporates his suggestion, it ought to be readily seen by him to be a sensible provision. I ask the Committee to adopt it. If he says that there is a shortage of time or if he feels subsequently that the provision is not satisfactory in some way and that he would like to recommit the .matter, I would be very happy to agree that the matter be recommitted. If he is not satisfied with his immediate study of the amendment now and over lunch, I think he ought not to be prejudiced. The matter may be recommitted and dealt with de novo in the course of the day. My advisers’ view is that this covers everything that the Opposition was concerned about and outlaws price agreements during that 4 months period. It is something that ought to be readily adopted by the Committee.
– We appreciate what the AttorneyGeneral (Senator Murphy) has said- that it gives to the Opposition what it was originally seeking, but it also goes further. I heard the Attorney-General state that in addition it covers price fixing arrangements. The Opposition’s original proposal was that the provision which meant that the clause relating to exclusive dealing would not come into operation until 4 months after the date of proclamation was to be the only area in which there would be delayed operation of the legislation. The Opposition felt that as well as the provision relating to the delayed commencement of the exclusive dealing provisions there should also be a similar provision relating to price discrimination. Therefore, the Opposition’s amendment was simply to add to clause 2 the expression ‘47 (1)’, which deals with exclusive dealing, and the expression 49(1)’, which deals with price discrimination. That would mean that in both those areas there would be a delay in the operation of the legislation.
The case we put in support of that, and I imagine that the Attorney-General has become aware of it, is that so many of the arrangements under which business and commerce are carried on in this country are arrangements which will have to be adjusted in the areas of exclusive dealing and price discrimination and in areas where existing distributorships and networks and connections between companies will have to be looked at arid changed. Obviously the point is accepted with regard to exclusive dealing and 4 months is an appropriate time in the view of the Government. We do not challenge 4 months although I have heard argument addressed to us that it ought to be a longer time. I accept, as the Attorney-General says, that the clause proposed by the Government preserves that position. But I notice that it deals with a number of other matters as well. I would be grateful if he would explain how the provisions will operate. For example, he not only incorporates clauses 47 ( 1 ) and 49 ( 1 ) as provisions which shall not come into operation until the expiration of 4 months after the date fixed by proclamation but also the provisions of sub-clauses (1) and (2) of clause 45 which I assume deal with price fixing arrangements, and then indicates that clause 88 (2) is in some way to apply. I would be grateful if he would explain in what way that provision applies.
He would appreciate that at a later stage we will be moving an amendment to clause 45 which, if it were acceptable to the Committee, may require us to come back to clause 2. 1 notice also that there is a provision in proposed subclause (6), contained in the Government’s list of amendments, which seems to have the sensible purpose behind it of enabling the GovernorGeneral to make appointments of members of the Commission after the Act receives the royal assent notwithstanding that the proclamation has not been made under which particular clauses will come into operation. I cannot see that there would be any real objection to that but I would be grateful if the Attorney-General will explain those particular areas upon which I have invited comment.
– The situation is precisely as I stated it before. Price fixing arrangements would be outlawed forthwith although the rest of the arrangements referred to would be deferred for 4 months. That is the effect of the amendments. It is as simple as that. Proposed sub-clause (6) provides for the appointment of members of the Commission notwithstanding that various parts of the legislation are not yet to come into force.
– What is the reference to clause 88?
– That is a convenient way to describe price arrangements for which there is no authorisation. That is a draftsman’s device for defining the particular agreements which will not be excepted in their delay; in other words, those agreements will be outlawed forthwith.
– That is, new agreements which are to be made?
-The honourable senator will see this in clause 88 (2); that is, price agreements for which there is no authorisation.
- Mr Chairman, I seek further elucidation of this aspect. The Attorney-General (Senator Murphy) has said that price fixing is to be outlawed forthwith. There are in industry associations which operate under a uniform price level; these associations in many instances have been in existence for many years. Does the AttorneyGeneral say that those associations will be disbanded immediately, that there is to be no time for a recasting of their operations as associations? I would like that to be clarified because this clause appears to me to be singling out certain industries for which price fixing will be outlawed forthwith, that no time at all is to be allowed for those given industries, which may operate through an association of common interest to have any discussions as to how they can vary or cease their operations.
-Firstly, the Bill does not touch the structure of these associations. Next, regarding general restraints which they might be managing, if I may use that neutral term, there would be a 4 months delay. Price fixing arrangements which they might be, if you like, facilitating or initiating or carrying out would be outlawed immediately, as they should be. Let there be no doubt about it that that activityprice fixing arrangements- would come to an end upon the Bill coming into operation- and further price fixing agreements also would be outlawed. As to the restraints which such bodies might be carrying on, inducing or promoting there would be 4 months in which they could wind up those restraints. But the structure of the associations themselves is untouched by the Bill. When I say that, I mean it in the sense that the Bill does not dissolve them or anything like that. But of course if their operations were in contravention of the Act they would be subject to the penalties and the various other provisions of the Act.
– In a situation of price control for a given commodity, when an association abides by the price set by the State price fixing authority in a given State, would that be regarded as an association price fixing arrangement to be outlawed immediately under this legislation?
– If they simply comply with the law there is no problem or difficulty.
-I am sure that the Attorney-General is clear in what he is endeavouring to convey, but the difficulty which Senator Laucke feels and which I share with him is how the reference which is made to sub-section (2) of proposed section 88 becomes a relevant consideration and in what way it becomes a relevant consideration in subclause (5) of the Government’s proposed amendment. On looking at proposed section 45 one finds, for example, that certain contracts or arrangements in restraint of trade are unenforceable. Then there is a provision that one cannot enter into any contracts or arrangements after the commencement of the proposed subsection. As I understand the amendment it is proposed to say that the commencement of the proposed sub-section shall be read, having regard to what sub-section (2) of proposed section 88 states, as a reference to the date of the proclamation. When one looks at sub-section (2) of proposed section 88 one gets the impression that it is outside the scope of any application for an authorisation. Therefore, what is its relevance and relationship to proposed section 45? When will a contract to which sub-section (2) of proposed section 88 applies cease to be unlawful? Will it be the date of proclamation or can it be extended?
– As to the date of proclamation, if Senator Greenwood is not prepared to accept the offer I made to him, that if this clause is passed and subsequently he is dissatisfied with it, it could be recommitted, rather than have the debate bogged down on the consideration of one clause, I will simply move that further consideration of this clause be deferred, which would enable the Committee to get on with the task of considering the rest of the Bill. I think everyone would like to come to some kind of conclusion on the matter. Is Senator Greenwood not prepared to accept the offer I have made to facilitate the recommittal of the clause? I offered, without prejudice to him, that if after a subsequent study of the matter he is not satisfied with the explanations that have been given the clause can be recommitted to enable him to put whatever he likes to put or to do whatever he wants to do. Let us get on with the consideration of something else. I ask Senator Greenwood to indicate whether he is prepared to accept my offer or whether I should move that further consideration of this clause be deferred so that we can get on to a consideration of the next part of the Bill.
-I sense that there is an area in which Senator Laucke and I are still not clear as to precisely how the provision will operate.
– Why do you not say that you do not know and sit down?
– It may be that Senator Poyser feels that because the Government has proposed something no one should qquestion it. We are looking at this matter as cl osely as we can. We feel that we are entitled to do so. The question of when price-fixing arrangements are or are not to become unlawful is an important factor.
– I gave you the answer; it is on the date of proclamation.
– I appreciate that and that is helpful. But what are those particular arrangements under sub-section (2) of proposed section 88 in respect of which authorisations do not apply so that at the date of proclamation they become unlawful? I am quite happy to accept the Attorney-General’s assurance that if the Opposition wants to come back to any clause hereafter it can do so.
– I said to this clause. I did not say to any clause; I said to this clause.
– I am sorry, to this clause. I think we would be prepared to accept that assurance. I know that Senator Laucke, who has spoken to me briefly about the matter, is concerned as to what is the import of this provision. I know that he would appreciate the opportunity of talking to some of the Attorney-General’s officers with a view to having the matter clarified. On that assumption, I think that we can proceed to accept this amendment, knowing that we can come back to it if we want to do so.
– It may help the consideration of the whole of this Bill in Committee if I were to say at this stage that my officers are available to any honourable senator who is concerned about any part of the Bill and who may wish to seek assistance in that regard. Honourable senators may obtain that assistance on a completely confidential basis from my officers. They can ask them what the construction is, what the alternatives are or anything they like. If any honourable senator opposite wants either assistance or independent counsel to advise him on these matters I will facilitate that. But let consideration of this Bill not be held back any further by any suggestion that the resources of the Government are not being made available to honourable senators opposite. So that honourable senators opposite may understand the Bill my officers certainly are available to them. I would be grateful if honourable senators opposite would take advantage of my offer.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 3 agreed to.
Companies Ordinance’ means the Companies Ordinance 1962-1974 of the Australian Capital Territory or, if that Ordinance is amended, that Ordinance as amended;
– In the definition of ‘Companies Ordinance’ there is a provision whereby the ordinance is to apply according to its terms, whatever those terms might be in the future. The definition states:
Companies Ordinance’ means the Companies Ordinance 1 962- 1 974 of the Australian Capital Territory or, if that Ordinance is amended, that Ordinance as amended;
The view of the Opposition is that it is not desirable to have in a complex Bill such as the Trade Practices Bill a reference to an ordinance to which one has to go if one desires to know whether or not a particular aspect of company law applies to the matter under consideration. We appreciate that that is something we are not able to correct in this Bill, because it would be a fairly substantial draftsman’s job. We regret that a person is not able to pick up the Trade Practices Act and find all of the laws relating to him contained in the Act; he has to go to another Act and find out what that says. As I say, we do not see how we in the Opposition can correct that, although we regret that it was not done.
The second point to which we draw attention is that the words ‘or, if that Ordinance is amended, that Ordinance as amended’ mean that by the usual means by which ordinances are made in the Australian Capital Territory the provisions can be altered at some stage in the future. There is a practical problem in that, because practitioners often have difficulty in finding provisions of the Companies Ordinance and, of course, the Trade Practices Act has an Australiawide operation. I am sure that anyone in practice knows that it is not easy to pick up ordinances of the Australian Capital Territory. The difficulties are compounded if one has to look at a number of amending ordinances to find out what the law is at any particular time. I therefore move:
In the definition of ‘Companies Ordinance’ leave out the words ‘or, if that Ordinance is amended, that Ordinance as amended’.
The effect will be that the provision which will apply is the present Companies Ordinance of the Australian Capital Territory. That is obviously the basis upon which the Bill has been drafted and it seems appropriate that people should know that that is the fixed state of the law. If there has to be an amendment, it can be made in the ordinary way.
– Just to show how the Government is approaching this matter, I indicate that we are prepared to accept the amendment. I think that the amendment is unnecessary and that what is in the Bill is right and proper. There is a good precedent for what is contained in the clause because the previous legislation which was introduced by Senator Greenwood had exactly that provision in it. But I cannot see that any great harm is being done and we will be saved a lot of trouble if I simply agree to this amendment, as I will agree to some others. I will not oppose the amendment.
– Mr Chairman, we accept graciously what the Attorney-General (Senator Murphy) has said. I assure him that what was in the previous Bill was pointed out to me to be an onerous matter, and rather than compound the error we will accept what he has said.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 5 and 6 agreed to.
– The Opposition has an amendment to this clause. I do not think the Government has proposed any amendment. The proposal of the Opposition is that a new sub-clause be added. The clause deals with the constitution and composition of the Trade Practices Commission. It establishes a Trade Practices Commission, provides that its members shall be appointed by the Governor-General, provides for full time members and pan time members and requires the Chairman and the full time members of the Commission to give the whole of their time to the duties of their office. In accordance with the Opposition proposal, I move:
We believe there should be some statutory provision indicating the qualifications of the members of the Commission. Nothing is stated at the moment as to what persons are eligible to be appointed. There is no provision indicating the type of qualification to which the Government should look in the composition of the Commission. I think there is a provision in the existing legislation relating to the Trade Practices Tribunal under which the members of the Tribunal have to have some expertise in a particular area.
We suggest that this is a provision which could be usefully inserted into this legislation.
I do not want to disturb the harmony which has so far prevailed in the Committee stage, but we in the Opposition believe that there have been too many appointments to commissions or boards reminiscent of the old appellation attributable to Labor Party governments in the past that it is prone to follow the ‘jobs for the b oys’ concept. We believe that if, for example, an ex-politician is competent to be a member of the Commission in the light of the qualifications which are sought, the Government can feel entitled to appoint him. But we think we ought to have some indication of the qualifications which a member of the Commission should have. After all the members of the Commission have statutory duties which are set out in subsequent provisions of the Bill, and we believe it is not unreasonable to say that all persons who are to be members of the Commission ought to be qualified for appointment by virtue of their knowledge of or experience in industry, commerce or public administration. Our amendment is tremendously broad, but we at least feel there ought to be some qualification rather than have it completely left open.
– Here again the Government will accept the amendment. We think it is an amendment which obviously will not do any harm. It is a futile amendment. The qualifications in the Opposition amendment are cast in such wide terms that it is hard to think of anyone who would be proposed for the position who would not fulfil the qualifications of ‘knowledge of or experience in industry, commerce or public administration’. I suppose one can say that even if a person does not have experience in any of these fields he has knowledge of them. It is an absurdity that the legislation should be filled with useless tests like this when one would appreciate that anyone who would come into contemplation would fulfil these qualifications.
One thing that did cross our minds in considering the amendment was whether the amendment was intended to try to keep out people who might have some experience and knowledge of consumer affairs, the people who would be terribly interested in the field. But really, on reflection, one would think that any person who is concerned with consumer affairs would fit into this category. Such a person would have knowledge of or experience in industry or commerce even if not in public administration. So this amendment will not prevent the proper people being appointed to the Commission. It is absolutely obviously useless. But apparently members of the Opposition spend their nights thinking up this kind of proposal. Rather than have an argument about it the Government will not oppose the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 8 to 16- by leave- taken together, and agreed to.
I ) Where a member of the Commission other than the Chairman has or acquires any direct or indirect pecuniary interest in any business carried on in Australia, or in any body corporate carrying on any such business, being an interest that could be in conflict with his duties as a member, the member shall, to the best of his knowledge, disclose that interest to the Chairman.
– The Opposition seeks to move an amendment to clause 17, which deals with the disclosure of financial interests of members of the Trade Practices Commission. The clause requires the disclosure by members of the Commission of their financial interests. I think that we are all aware that there has been a growing amount of controversy in Australia and in the United Kingdomand one could almost say that it is an issue which has captivated the United States of America in recent years- about the extent to which persons discharging public obligations and responsibilities should disclose what are their private interests which may be in conflict with their public duties. Quite properly, this Bill contains a clause that members of the proposed Trade Practices Commission should disclose their financial interests. But the Opposition is concerned as to what import should be given to such a disclosure. It is all very well for members to disclose what their interests are to the Chairman of the Commission. But is the Chairman to retain that information to himself and not pass it on to anybody else? What should be the state of knowledge of the public or persons who may be concerned with applications to the Commission? That is the area with which the Opposition is concerned. Therefore, we move:
After sub-clause ( I ), insert the following sub-clause: ( Ia) Where an interest is so disclosed to the Chairman and-
in the case of an interest in a business- the person carrying on the business: or
in the case of an interest in a body corporate- that body corporate, is concerned in an application before the Commission, being an application in the nearing and determination of which the member who has the interest is or will be participating, the Chairman shall cause the interest to be disclosed to the public.’.
The kernel of the amendment is in the last few words: ‘the Chairman shall cause the interest to be disclosed to the public’. We have had assistance in drafting the amendment and, as I understand it, it complies with the pattern of other provisions in the Bill. Whether or not the provision should extend to an interest in a business as well as an interest in a body corporate is a matter which can be argued at some later stage and in some other place. Our purpose is to ensure that where a member discloses an interest, that interest is disclosed to any person who is involved in the application before the Commission. Such an interest ought not to be kept within the knowledge of the Chairman. The persons vitally concerned are the persons affected by the Commission’s determinations. Again, we suggest that this is an amendment to which the Government could give favourable consideration.
– We will not oppose the amendment. It does no great harm. The Government thought that the provision it had in the Bill was satisfactory and proper. But as I indicated, unless there is some strong reason for opposing what is put forward, I will not resist it and give an excuse for defeating this legislation. The amendment may even be an improvement, but we think that the provision that was in the Bill was quite satisfactory. But it is sufficient for me to say that we will not oppose the amendment. We will let it pass.
– I have a question in relation to this clause. I am not clear on this and I am prepared to expose my ignorance. What provision is there for the Chairman to disclose his interests?
-There is provision in the Bill for that. I think the honourable senator’s question ought to be directed to the AttorneyGeneral.
– If I may answer the honourable senator- the Chairman has to inform the Attorney-General.
– This is a matter which the Opposition looked at. We did not take it any further for reasons which I am not able readily to recall. But I wonder whether the Attorney-General would state what is the reason why the Chairman is obliged to inform only the Attorney-General. Is there not logically the same consideration which I have mentioned with regard to members of the Commission applying to the Chairman of the Commission or is it that the Chairman of the Commission is a full-time member and therefore he would not be appointed unless he was able to devote his full time to his obligations, and naturally that would be a matter with which the Attorney-General would be concerned before that person’s appointment? I only ask this for information. I think it is the area with which Senator Georges is also concerned.
– If a conflict arose in which the Chairman was involved he should disqualify himself. We thought this was a reasonable way in which conflicts might be dealt with. If the honourable senator wants to consider this further 1 invite him to raise the matter later. This is not a matter on which there ought to be any party political differences as to how this is resolved. If the honourable senator thinks there is some improvement that can be made in relation to provisions dealing with the Chairman, I do not think there would be any difficulty if this were raised again at some later stage despite the fact that an amendment has been put forward by the Opposition. If it wants to modify its proposal or to put forward something else I will not be doing anything other to facilitate putting any proposal before the Committee. The conflict of interests is an important area.
If I may be forgiven for digressing a little, I think it is probably important that in the Parliament conflicts of interests are exposed and dealt with. The Committee will recall that there is a proposal before the Senate that such disclosures be made by members. I think it is long overdue that such disclosures should be made by members of other tribunals and courts throughout the land. If there is the opportunity in this legislation to develop a satisfactory precedent which might by applied in other areas, I will be only too anxious to encourage it. May I suggest that we dispose of this clause and move on to deal with other clauses? If somebody else wants to raise the matter or come back to it later, I think it is probably a clause that could be dealt with without any kind of contention. I do not think there is any real difference between us on this matter. We would all want to have in the Bill a procedure which would deal properly with conflicts of interests. We thought our provision was sufficient. If the Opposition wants to go further or if honourable senators on our side or the independent senators want to propose something else let them do so. But I suggest, with respect that we might move on to the other clauses.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 18 to 28- by leave- taken together, and agreed to.
The clauses which the Committee has just accepted relate to various matters concerning the Commission, the powers of the Commission, its procedures, representation of the public, delegations, the staff of the Commission and its functions. Clause 29 gives to the AttorneyGeneral certain powers with respect to the Commission. The whole of clause 29 indicates that the Commission is to comply with the directions of the Attorney-General and the requirements of Parliament. It reads:
If the proposal contained in the amendment were acceptable to the Committee it would mean that the only part of the clause which would remain is that dealing with the power of either House of the Parliament or a committee of either House or of both Houses to require information to be given concerning the performance of a function of the Commission under the Act. We object to the width of the power which is given to the Attorney-General and to the immensity of the scope for directions in the functioning of an independent body which is thereby given. We believe that the Parliament should determine whether or not there is to be an administrative departmental control of the functioning of a scheme of administration which the legislation establishes or whether it is to be left in the hands of an independent commission. We ought not to have the connection which is involved in the powers given to the Attorney-General. We ought to preserve the dichotomy between the political head and the independent body.
One can indicate that the functions of the Commission are very broad. Of course, Part VII is excluded. It relates to the granting of authorisations and clearances. Obviously it would be quite wrong for any political figure- a Minister or any other member of Parliament- to be able to say to the Commission: ‘You shall give an authorisation to X and you shall not give an authorisation to Y’. I do not think that requires any justification. Quite properly, even on the view which the Attorney-General takes as to what should be the powers that he has over the Commission, he does not seek to include powers of that character. But when one considers the other powers of the Commission, I invite consideration to be given to the functions of the Commission which are set out in clause 28. If the Attorney-General is entitled to direct the areas in respect of which matters shall be made available to the public, then of course there is a selection not at the Commission’s discretion but at the Attorney-General’s discretion as to what shall be made public in particular areas. This is of great importance because if information which is scandalous information or of a defamatory nature is made public, the person concerned may well have no protection at all because it is given under the authority of an Act of Parliament. I believe that that is a matter which ought to be vested in the Commission which is having the day to day control of these matters.
When one considers clauses 155 and 156 of the Bill, to which we will give consideration in due course, which refer to the transitional provisions, one finds that enormous powers are given to the Commission. The Commission has the power to summon people before it and to require them to answer questions on any matter or questions relating to a matter that constitutes or may constitute a contravention of the Act. If the Commission has the power to summon people before it and to require them to answer questions and to be subjected to a penalty if they d o not answer questions, that is a power which ought to be circumscribed as much as possible.
A power is given in the Act to the Commission to require persons to furnish documents to any inspector who wants them. The inspector can ask for them just because the Commission or a member of the Commission wants them. If powers of that character are to be contained in the legislation they ought to be circumscribed. If the Commission wants them for a particular purpose then the Commission, as a body comprised of persons who know what their functions are, ought to take the responsibility for that decision. I do not believe it is proper that a Minister or an Attorney-General should have the power to direct the Commission as to how functions of that character should be performed. It leaves itself open for abuse or- this is probably more importantfor allegation of abuse. I believe it is far better for the Commission to be able to operate- as the whole scheme of the legislation contemplates- independently.
If one examines other provisions one finds that similar concern might be expressed. In clause 22 the Commission is empowered to decide whether it will have a private hearing. Normally, as I understand the legislation, the Commission is to conduct public hearings but in any case where it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Commission may direct that the hearing or a part of the hearing shall take place in private and it may give directions prohibiting or restricting the publication of evidence given before the Commission. If parties go before the Commission and satisfy the Commission with regard to those matters, I believe it is the Commission’s decision which ought to be final. It is for reasons of that character that we believe -
– If you read it you will find that the Attorney-General could not interfere with a decision as to whether matters should be heard in private.
– I am asking the Attorney-General to examine the width of the power. If he feels that these powers are too wide I accept his suggestion that he take this clause away and redraft it. I just ask him to consider the width of the provision. Clause 29 says:
The Attorney-General may give directions to the Commission in connexion with the performance of its functions or the exercise of its powers under this Act -
– Other than -
– It continues: other than its functions and powers under Pan VII
Part VII relates to authorisations and clearances. The clause continues: and the Commission shall comply with any directions so given.
It seems to me that, quite apart from Part VII, there are other functions which the Commission has- for example, under clauses 28, 155 and 1 56- which are not part of Part VII at all. If the Attorney-General wants to take the clause away I suggest that we proceed in the harmony he earlier indicated and bring the clause back again later. We will move the amendment that these 2 clauses be deleted.
– All the quasi judicial functions are in Part VII. The others are administrative functions. If one examines this clause one finds that careful attention has been given to ensuring that in a proper way the principles of ministerial responsibility and parliamentary supervision be carried out. I have introduced this concept into this Bill and into another Bill. I have written it in deliberately. In clause 29 (3) one finds that the bodies are supposed to furnish to the committees of either or both Houses information which is required. Honourable senators are aware that there is a tendency in some of these bodies to start to resist even the committees of this House and to start to regard themselves as though they were independent baronies. I do not think that this is satisfactory.
We have a system which fundamentally is one of ministerial responsibility and parliamentary supervision. Parliament cannot exercise its supervision properly unless there is a Minister who has the responsibility. It seems to me that as a general principle- not merely in regard to the Trade Practices Commission but generally- we ought to start pursuing the line that is set out here. Unless there are very strong reasons- and there are some here, in the exercise of quasi judicial functions- a statutory body ought to have some kind of supervision by a Minister. In certain areas such as transport there is day to day management and so forth. I think that an academic in Tasmania has gone through the long history of statutory corporations and their relationship to government. Interestingly enough, Australia was the pioneer in the evolution of statutory corporations and during the last century led the whole world in this field. This development was copied in other countries. We have had great experience of statutory corporations.
The relationship between government and statutory corporations has been expressed in many ways. There have been a great many experiments in the field. I think that what emerges from all this is that, in general, government ought to exercise some kind of supervision over statutory corporations. That supervision must be expressed through a Minister. The Minister is responsible to Parliament. I have put into this legislation specific proposals to enable the Houses of Parliament to obtain whatever information they wish from the Commission. Excepted from this are the quasi-judicial functionsthe decision making- of the Tribunal, because they operate by way of a chain from the Commission to the Tribunal and, in some cases, to the Superior Court. The Government has proposed that all those matters should be exempted from ministerial supervision.
Let us turn to other areas in the operation of the Trade Practices Commission and consider certain aspects of finance. The Minister may believe that there has been some extravagance. He may think that the Commission should be setting up more offices. He may say: ‘Look, you are not paying enough attention to country areas. Why do you not set up an office in a country area?’ The Minister may suggest that it be in Geelong, Mackay or some other place. Surely in such circumstances the Minister should be able to give a direction. What is to be feared in this measure? The Government has proposed that not only may the Minister give a direction, but if he does do so it also must be the most public action. It must be put in writing and he shall cause a copy to be published in the Gazette as soon as practicable after the direction is given. That is the way he exercises the supervision.
Either House of the Parliament may ask the Attorney-General for imformtion or may bring the statutory body before it. Either House may ask that body: ‘What are your views on this? Is the Minister really doing the right thing or is he not?’ Will the Opposition really say that, if the Government itself wishes to give the Commission in writing a direction which has nothing to do with its quasi-judicial operations and have that direction published in the Gazette, it cannot do it, even though the Government through the Minister is answerable to Parliament and the committees of the Houses are empowered specifically to call that statutory body and ask it what any matter is all about? Does the Opposition really say that these statutory bodies should be so detached from ministerial responsibility and parliamentary supervision that they may go and do what they like, even if the responsible Minister felt that it was necessary to publish in the Gazette a direction for which he would be answerable in Parliament? It seems to me that that attitude is going too far in the direction of removing these statutory corporations from proper parliamentary supervision and ministerial responsibility. That is the intent behind the provision. I think it ought to be carried into many other pieces of legislation
Over the years many comments have been made in this chamber about the extent to which these statutory corporations have become free of supervision at all. Ministers in this Government and in former governments- including former Ministers opposite- have complained that they have no real control at all. Even if they thought something was going wrong they had no real control. I would think that this is something that ought to be considered with respect to statutory corporations generally. A good deal of thought has been given to this aspect. It seems to me to be a wise provision enhancing the proper Parliamentary supervision exercised through Ministerial responsibility. In this case it is made quite public, so that everyone will know what is going on and the Houses themselves have the utmost opportunity of controlling and investigating the exercise of that supervision. I suggest, with respect, that the provision is a good one and that it should be left as it is.
Personally I am not satisfied that the AttorneyGeneral (Senator Murphy) has shown satisfactorily that this power should be contained in this clause. At the most he has said in general that there should be some kind of supervision, whereas the clause states:
The Attorney-General may give directions to the Commission -
True, it excludes Part VII- and the Commission shall comply with any directions so given.
I take it that that includes the functions of the Commission, the functions in clause 28 and the various functions which are set out earlier. I note that when this clause was attacked in the other place the Minister for Manufacturing Industry (Mr Enderby) said it was well known that this provision in the Bill related only to matters of priority and not to anything of a judicatory nature. I do not know what ‘priority’ means in this sense. I do not think that this clause defines the matter in that way. Today we have had an explanation different from what it was said was intended.
Maybe some supervision is required. But this supervision, as I see it, would include the delaying of rights. It is not satisfactory to say that we can come back here and criticise this clause in the Senate if, in fact, it relates to the exercise of rights, including evidence, hearings and so forth, which have been mentioned in earlier clauses of the Bill. It may be too late for us to come back later and to say: ‘You should not have done this’, or ‘This direction no longer has the approval of the Senate’. It seems to me that this clause is altogether too wide to leave it as it stands here. The explanation today and the explanation which was given earlier indicate to me that at the very least, even if we do not remove the 2 clauses, they ought to be re-committed so that there is a limit on the power of the Minister in relation to the Commission. It is given a lot of functions which are publicly known and which it is expected to carry out. Later, we could find that several of these functions are said to have no priority because the Minister so directs. I believe that this clause changes the Bill substantially and leaves with the Minister a power which should not remain in any Minister’s hands.
– I ask honourable senators opposite not to proceed with their amendment. I believe that there is adequate provision in the draft of the legislation to protect against everything which has been said here today by honourable senators opposite. I think that in sub-clause (2) we have all the protection that is necessary. It states:
Any direction given to the Commission under sub-section ( I ) shall be in writing and the Attorney-General shall cause a copy of the direction to be published in the Gazette as soon as practicable after the direction is given.
Can honourable senators visualise any AttorneyGeneral giving a stupid direction? He would not give a stupid direction. He would give what he believed was a sensible and reasonable direction. But he must give it in writing. Then, having given it in writing, he must have it published in the Gazette’. Surely that is an adequate safeguard against something unforeseen. Honourable senators opposite in all their wisdom say that everything is covered by all the provisions of this legislation. But can they say that everything is covered? I do not think they can. This provision is to provide for special circumstances. I suggest, with respect, that whoever was AttorneyGeneral would not use the power prescribed by this sub-clause unless there were special circumstances. The Attorney-General having used the power is then under the complete control of Parliament. I ask, therefore, that the clause remain as it stands.
– I suggest that the functions that the Attorney-General (Senator Murphy) seeks to take under this clause are not such that Parliament is the appropriate body properly to supervise them. The AttorneyGeneral, in his latest intervention in the debate, made it clear that he was concerned with statutory corporations’ growing independence of the
Executive and that this clause was in the nature of a new initiative-a view that he has put forward to Parliament to redress that trend and to make statutory corporations more amenable to Parliament. But the subtlety of it is that it is done by making the statutory Tribunal more compliant with, and the creature of, an Executive direction. I would think that this aspect of the whole question of statutory corporations is not quite relevant to a corporation of this nature. This Corporation is, in the main, a quasi-judicial one, which is the sort of corporation to which the new initiative suggested by the AttorneyGeneral would be the least appropriate.
It is said by the Attorney-General that the functions of the Commission and the powers under Part VII are exempt from his direction, and so they are. But one can test the weakness of that argument by looking at clauses 22 and 23 of the Bill. Clause 22 gives the Commission the discretion to direct that at any public hearing, evidence of the sort that commends itself to it should be taken in private, or to give directions prohibiting or restricting the publication of evidence.
– Surely that is in connection with the powers under Part VII. That is covered by the exemption.
-I think the argument deserves a little more than a glancing blow like that. Clause 29 ( 1 ) of the Bill states:
The Attorney-General may give directions to the Commission in connection with the performance of its functions or the exercise of its powers under this Act other than its functions and powers under Part VII, and the Commission shall comply with any directions so given.
Clauses 22 and 23 are not in Part VII.
– They are in connection with it. They quite clearly are covered by the exception that is there.
– It would not be quite clearly so interpreted by me, when the exception is limited to Part VII and I find in another Part a power for the Commission to treat evidence as confidential or public. That is a power of the Commission with which the Attorney-General ought not to have the right to interfere. Clause 23 states:
The Commission may permit a person appearing as a witness before the Commission to give evidence by tendering, und. if the Commission thinks fit, verifying by oath or affirmation, a written statement.
But these are matters which are not in Part VII, although they may be means of procedure relating to functions under Part VII. They illustrate the width of the Attorney-General’s power to direct a quasi-judicial commission. I suggest that that sort of direction by the Attorney-General has no place in a Bill of this sort which deals with a Commission and a Tribunal which should be independent if they are to attract respect and confidence.
– I would not doubt what Senator Wright has said. Surely the functions under clauses 22 and 23 ought to be outside the scope of a direction given by the AttorneyGeneral. I have said, and those who advise me also take the view, that these provisions are clearly in connection with the functions and powers under Part VII. We should not let this be dealt with on a difference of viewpoint between Senator Wright or Senator Greenwood on one side and myself on the other, although I am quite confident that clauses 22 and 23 are in connectionand that is all they are- with the functions and powers under Part VII. I am prepared to spell that out and to move an amendment so that there will be no room for misgiving by senators on the other side.
The First Parliamentary Counsel has attended to the matter and I am prepared to propose that we insert after ‘Part VII’ the words: ‘or under sections 22 or 23 ‘ so that there will be no room for any misgiving whatsoever. I believe that it is quite unnecessary to insert those words. I am confident that the matter is covered without those words being inserted. If we insert those words the evident intention which Senator Wright expresses and which I share that the matters in clauses 22 and 23 would be exempted from the directions will be carried out. Before we go further I propose, if I am given leave now, to insert after ‘Part VII’ the words: ‘Or under sections 22 or 23 ‘. I will do so if I am given leave.
– We have an amendment.
-I appreciate that the Opposition’s proposal is to leave out 2 clauses. Before that is dealt with I seek leave of the Senate to insert the words which I suggest: ‘or under sections 22 or 2 3’.
– Let us defer the question of leave until we have responded to what you have said. We do not give you leave at this moment, put it that way.
-Alternatively I undertake to the Senate that if the amendment proposed by the Opposition is defeated I shall move the amendment to sub-clause ( 1 ) of clause 29.
-The Attorney-General has foreshadowed that he is prepared to move an amendment. If Senator Greenwood will bear that in mind I will call him. I call Senator Greenwood.
– Naturally if our amendment is defeated we will welcome anything which limits the power in this area. We think it is a matter of concern that ramifications as wide as the AttorneyGeneral (Senator Murphy) indicated -
– I cannot accept that it is a limitation. I say that it already makes no difference at all, except that it gives more satisfaction for the Opposition.
– 1 am sorry that the Attorney-General cannot see the proposition as it concerns the Opposition. This issue has very wide ramifications because the concept of the statutory corporation has developed enormously in the States throughout Australia and in the Commonwealth over many years. It has acquired numerous refinements. One of the questions which only in recent years is coming into focus is the extent to which those bodies which are established by the Parliament are to be answerable either to the executive which carries the responsibility for the administration of the Act or to the Parliament itself.
It seems that the problems which could arise in regard to the Trade Practices Commission are problems which are quite clearly resolved in favour of the Commissioner of Taxation. From reading the Income Tax Assessment Act it is clear that the Minister has not got any powers to tell the Commissioner of Taxation how he shall exercise his functions, and nor should the Minister have any power. Parliament has laid down how the Commissioner shall be separated in the discharge of his functions from the ministerial responsibility which the Commissioner acknowledges is vested in the Treasurer. Surely no one would question that proposition. The Commissioner of Taxation ought to be autonomous in his activities. Difficult problems have arisen in a host of other areas, and one of those problems is the extent to which there should be parliamentary control or ministerial control over the Australian Broadcasting Commission. It is not really suggested that the Minister should have power to give directions to organisations such as the Snowy Mountains Authority. The reason such bodies were established originally as separate autonomous commissions or authorities was to remove them from political control, to remove them from the day to day superintendence and direction which Ministers could exercise, and it was felt that there was good reason for that. I believe that there is good reason for giving an independent control to bodies in relation to which it is feared that if there is political direction there might be, as I said earlier, misuse or allegations of misuse.
What we say is the problem here is that the Commission is given a number of functions, and those functions ought to be able to be exercised by the Commission in the judgment of the Commission. It is not good enough to say that there is a protection because any direction which the Attorney-General gives shall be published in the Gazette. There could be a wave of hysteria throughout the community at a particular time on particular issues. In that context it might be thought to be the most desirable thing in the world to have a direction given as to how a particular company is to be dealt with by the Commission. It may be very easy for the AttorneyGeneral to publish that in the Gazette, but in the sober light of reflection it may appear to be the most unjust type of direction that ever could have been given, and yet at the time it was given it seemed appropriate in the light of feelings which had been generated. People ought to have their rights governed by law and by the independent bodies which the legislation establishes; they should not have their rights affected by political direction, as it may appear politically expedient to do so from time to time. Whilst appreciating, as we would see the position, some restraint by the Attorney-General upon the wide powers which we think the Bill contains, we say that there is a wider problem and a wider proposition involved. Therefore we would seek to maintain our amendment and to have the clause deleted.
– Sub-clause (2) of clause 29 holds a particular attraction for me, and in an indirect way it has been supported by Senator Greenwood. Although corporations are supposed to be independent- some of us sitting on Estimates Committees from time to time have considered them to be too independent- the reality is that there has been pressure brought on corporations from the ministerial direction, and this has not been disclosed. The purpose of this clause is to formalise what possibly is going on at the present time. Some subtle pressure is being brought down on commissions and on heads of corporations, and what this clause does, in effect, is force the Minister to disclose such a direction.
– It does not mean that it must happen because if it is as subtle as you say, it will continue to be subtle, irrespective of this clause.
-But it would make it even more reprehensible if the Minister gave a direction in an indirect way and did not publish it in the way in which it is supposed to be published. The point that I am trying to make is that this is necessary if one really believes in disclosure. From time to time this matter of the need to disclose has been brought up here. It has been mentioned several times here this afternoon. My attitude is that what we are discussing is an added and a necessary disclosure, and it would allow the Minister to cover some areas of responsibility in connection with corporations which come under his area of responsibility. Within the very considerable limitations laid down he would be able to express the opinion of the government of the day to a particular corporation in relation, perhaps, to how it should expand its facilities, its functions, and the territory in which it carries out its work. The clause provides also that a direction given to the Commission shall be disclosed by way of gazettal. Having been disclosed in the Gazette, such a direction is disclosed to the Parliament. If the Parliament disagrees with the direction then the Parliament can take action. I reckon that this is reasonable and it should be supported.
-I support the Opposition’s amendment. I want to refer to the accommodation offered by the AttorneyGeneral (Senator Murphy) when he suggested that we could include clauses 22 and 23. Clauses 19 and 20 refer to powers of the Commission. I am wondering whether he understands now the technical difficulties of trying to isolate some areas from which he would not wish to exercise ministerial control. It seems to me that throughout the legislation there are powers of the Commission which should be exercised independent of ministerial direction or discretion. Clauses 19 and 20 and even 18 provide powers to the Commission- I am sure there are others- that would equally come within the area that the Attorney-General has offered to exclude from his ministerial direction. I put those points of view in support of our feeling that this ought to be a function of the Commission separate from ministerial direction.
Listening to this debate, it seems to me that the Opposition is making a mountain out of a molehill and is grossly exaggerating the effect of clause 29. It also, I suggest, distorts the true position of the Commission under the legislation because to describe it as an independent public corporation and to refer in the same breath to the Australian Broadcasting Commission seems to me to distort the position.
Under the Bill the Commission has 2 types of functions. The first is a quasi judicial function which is provided in Part VII and other provisions in the Bill which are in aid of the execution of its powers under Part VII. Those powers, not just those in Part VII, aid the functions of the Commission under Part VII. All those powers are excluded from this provision. No question of direction arises. Therefore, what is left in the Bill on which the terms of clause 29 can operate? I suggest that with very odd exceptions that would have to be found in the Bill by going through it word for word, the provisions on which clause 29 can act are those contained in clause 28.
Clause 28 sets out5 powers which are essentially of an administrative character which could be said to be functions which an ordinary government department would normally carry out. If they were not specifically consigned to the Commission or entrusted to the Commission under clause 28 they would be functions which the executive government, through the AttorneyGeneral ‘s Department, would, I believe, be expected to carry out. As I have said, clause 29 is provided essentially in relation to those powers. When Parliament sees fit- it has already passed clause 28 and therefore it can be assumed that both sides consider it proper that those5 special functions should be entrusted to the Commissiondoes Parliament want to be able to say to the executive government of the day: ‘Hands off’, in relation for instance to such matters as priority? Take clause 28 ( 1 ) (c), which states: the Commission has the . . . function- to conduct research in relation to matters affecting the interest of consumers, being matters with respect to which the Parliament has power to make laws;
As I have said, normally that would be an executive government function. Surely it is proper that the Attorney-General should, in relation to that matter which 1 take as an example, be able to say to the Commission: ‘I have had complaints from many areas in the past few weeks concerning this aspect of consumer interest. You have not so far done any research on that matter. Would you please do so and give it priority. ‘ Is there anything wrong with that? As I have said, if the Opposition really examines this and appreciated that Part VII and anything related to Part VII is excluded from the power, it will see there is virtually nothing left on which the power can operate except the functions contained in clause 28.
I would have thought that the Opposition rather than opposing this provision would have welcomed the fact that as a parliament there will be a greater right to examine the activities of the executive government if this clause stays in the legislation than if the Opposition’s is agreed to. Any Attorney-General who did give a direction under clause 29 would, by virtue of sub-clause (2), be extremely careful to see that what he was doing would enhance him before the Parliament and not be a subject of criticism of him. By preserving this the Parliament is enhancing its position vis-a-vis the executive government. By agreeing to the amendment of the Opposition the Parliament is cutting itself off and is saying that this Commission should be left completely alone even in relation to ordinary administrative matters which normally would be the ordinary task of executive government but which for special reasons, because of the expertise of this Commission, are entrusted by clause 28 to the Commission, and Parliament has, without a word of dissent, approved of clause 28.
I would have thought that the Opposition amendment is misconceived, that Parliament would be better served by this provision being left in and that it is untrue to say that it is some sinister attempt by the executive government to get its claws into an independently created statutory body. It is quite innocent, I am convinced, in its conception and it will be innocently executed. If innocence becomes guilt then it will be exposed under sub-clause (2) of clause 29.
- Senator Guilfoyle has indicated that she thinks there are certain other clauses which relate to hearings and she referred to clause 20. That is so. As I indicated earlier it seems to me and to those who advise me to be quite clear that the exemption which is contained in clause 29 extends to all clauses and not merely clauses 22, 23 or 20. They are all tied up with the exercises of the functions contained in Part VII. I have had the advantage of having the First Parliamentary Counsel looking at it and as I understand it he has said that if we want to pick up all of this we could deal with it in another way to allay any misgivings. One way would be to take out the word ‘under’ in the phrase . . under Part VII’, in clause 29(1) and insert ‘related directly or indirectly to Part VH’, that would cover all of those matters.
It seems to the Government that that ought to satisfy what the Opposition has in mind. I am ad idem with them. I agree that clearly the Commission in the exercise of such functions as the determination as to whether evidence be taken on oath, whether the procedure of a hearing, authorisations and clearances be in private and how a witness gives his evidence should not be subject to any kind of direction. There is no difference between what the Government and the Opposition think should be contained in the legislation. It is only a matter of whether what is contained in the Bill carries out my intention and the intention of honourable senators opposite. It seemed to us that in its present form it did so. If we can put the matter beyond doubt and satisfy the Opposition, let us do so. The Parliamentary Counsel advises that if the words ‘related directly or indirectly to Part VII’ are inserted the objections will be met. Therefore, instead of inserting the words which I suggested previously be inserted, I would be prepared to move now to delete the word ‘under’ and insert the words which I have just mentioned. I hope that then we might get a consensus.
– I would like the Attorney-General (Senator Murphy) and all those others who have contributed to the debate to see that even this suggestion can be demonstrated to be insufficient for the purpose which the Minister says we all share. Senator Everett has submitted clause 28 to some sort of analysis, but I submit with respect that his analysis was quite inadequate. Subclause (b) lists one of the functions of the Commission: to examine critically, and report to the Attorney-General on, the laws in force in Australia relating to the protection of consumers . . .
Sub-clause (2) states that where a matter of that kind is referred by the Attorney-General to the Commission:
That is a field in which the Attorney-General might naturally feel himself competent to give a direction, but the existence of his power nullifies the whole idea of this Commission having a critical function to examine independently the need for new or amended laws. Quite apart from that provision which is directly or indirectly related to the Commission’s functions under Part VII, there are other functions which are not appropriate to the Attorney-General’s direction. I notice that under clause 27 if the Attorney-General can give a direction to the Commission, it can give a direction to the Chairman.
-That is not so.
– If I am in error in that respect, it will be pointed out to me. Having directed the Committee’s attention to clause 27. 1 will wait until the fallacy of my argument is demonstrated before I persevere.
– The functions under clause 27 are vested in the Chairman of the Commission, not in the Commission itself. He must have the powers of a Permanent Head. Senator Wright’s suggestion is incorrect. He is being driven into some kind of absurdity when he maintains the approach which he has maintained. He points to clause 28 ( 1) (b) and says that where a report is sought by the AttorneyGeneral he may give some kind of direction. I know that he laughs at his statement, because he realises that it is an absurdity. He would say that the action of the Attorney-General would be nullified if there were to be some kind of direction as to the recommendations which were to be made. Let us be realistic. There has to be public direction, which has to be published m the Gazette. It is there for the whole world to see. He is trying to twist the operation of the legislation into complete distortion if he examines it in this way.
In this clause we have tried to introduce parliamentary supervision. It is quite extraordinary to me that he has not paid any attention to subclause (3). The Opposition seems to have accepted that sub-clause without any concern at all although the Houses of Parliament are given a very strong power to require information. Someone could say: ‘Suppose it required information about confidential matters or about this or that’. But the Opposition is not concerning itself with any of that and I suppose rightly so because one expects that the powers which are given, like all other powers, will be exercised bona fide and for the purposes for which they are given with due regard for the rights of persons affected. That is the law of the land. It applies to all of these powers which are given. Yet here is a sensible provision directed towards proper administration, excepting all the quasi judicial functions and going to great lengths to ensure that none of those functions is affected at all, and the Opposition is fighting desperately to hang on to an amendment when I have indicated that I propose to draft the clause in such a way that there can be no possible misunderstanding about the exception relating to the quasi judicial functions of the Commission. I suppose that if the Opposition is determined to do that and wants to rationalise in any way at all its contentions we cannot do much about it.
I think the proposal which I am putting is a wise one. There ought to be some kind of supervision of such bodies in their administrative activities. The Government, if it wants to, ought to be able to tell the Commission that it should do some particular research. The Government ought to be able to direct the Commission if it thinks that the Commission is engaging in some extravagance. If the staff of the Commission decided that the most important area of research is what goes on in Brazil or in other places during the best weather period of the year and a parliamentary committee examined it and found that there had been some kind of extravagance in the administration of this body and made some recommendation to the Parliament do honourable senators opposite think that the position should be that the Government cannot give a direction on the administrative aspects of that body? We would be setting up bodies which are completely and utterly independent.
I think there ought to be a bit of common sense in regard to this matter when we except, as I am prepared to do, the quasi judicial functions and anything directly or indirectly related to them. Common sense indicates that there should be some responsibility to the Parliament exercised through the Minister. The Opposition is clutching at straws but I do not think that disturbs the Opposition at all. The process it has engaged in for 18 months has taken it to the point where it is prepared to oppose anything for the sake of opposition.
– The Attorney-General (Senator Murphy) does not do credit to the considerable arguments that have been raised in this chamber. When he talks about this being just like what has gone on for 1 8 months he is not doing himself or the Senate justice. In the examination of legislation we put forward proposals which we think ought to be examined on their merits. The AttorneyGeneral when in Opposition yielded to no one in his insistence that he was entitled to put up for debate and for consideration by the Senate matters which he and his Party believed were in the public interest. Just because there has been a change of government does not entitle him to regard the present Opposition as unable to do what he did when he was in Opposition. There are considerable arguments which I and many honourable senators on this side of the chamber have advanced in support of what we have proposed. It is not good enough to say that the matter is covered by what the Attorney-General has offered.
This is a Bill which has a number of vague areas of which there can be a wide interpretation or a narrow interpretation. If Parliament afterwards finds cause to complain about the very wide interpretation that has been given to powers, Parliament has only itself to blame because it never corrected the error when the legislation was going through. This is the sort of thing that could happen in the future unless we scrutinise the legislation at this point. I look, for example, at clause 18 and fina that the public hearings which the Commission is to undertake are not necessarily limited to proceedings under Part VII which relates to authorisations and clearances. Clause 18(1) states: . .the Chairman shall convene such meetings of the Commission as he thinks necessary for the efficient performance of the functions of the Commission.
I would think that, if Senator Everett’s viewpoint is elaborated, the Chairman if he felt it proper could have a public hearing to give consideration to some or all of the matters which are enumerated in clause 28 of the Bill. If he desired, for example, to have research into matters in respect of which the Parliament has power to make laws- and that is an enormously wide power- it would be conceivable that the Chairman could feel that there ought to be a public hearing at which persons could present their views which could be tested by other persons who felt they had a right to question whether the proposals or arguments being put forward were soundly based. Therefore to say it is sufficient to exclude from the power which the AttorneyGeneral wants to have over the workings of the Commission the proceedings in relation to Part VII is to leave a very wide area in which directions could be given which would be inconsistent with the whole scheme and frame of this legislation. I notice that no consideration has been given to certain clauses such as clause 77 which will give the Commission power to institute proceedings for an injunction and the power to institute proceedings for a penalty. No consideration has been given to the provision contained in clause 100 relating to resale price maintenance applications; and as I recall the debate, no mention has been made of the powers which the Commission will have under clauses 149, 155 and 156 of the legislation. All those powers are tremendously wide, dealing as they do with the power of the Commission to acquire documents and to require people to give evidence before the
Commission. The latter can be for the purpose of a prospective prosecution and not an application under Part VII. If the Attorney-General has the power to give directions in those areas then, as I said earlier, Parliament can blame only itself if at a later stage it objects to the way the power has been exercised- because Parliament now has the opportunity to decide whether this power should be given.
On all sides- Liberal, Country Party, Labor, all Parties represented- we hear incessantly, and I think it is wise and proper that we should hear it, that the individual in our society is becoming increasingly remote, increasingly manipulable and increasingly divorced from areas in which he wants to exercise a meaningful existence. Powers which can be exercised by the Executive, powers exercised by the great corporations, whether they be of capital or of labour, diminish the standing of the individual, and we ought to be concerned to preserve as far as possible his integrity and independence. This is one way we can do it, by ensuring that the ways in which individual actions are circumscribed are laid down by rules of general application and are not amenable to executive discretions whether they be the discretions of bureaucrats or the discretions of Ministers. At another time and in another place I am sure these arguments would find acceptance with the Attorney-General. He has problems because he is administering the legislation. But I suggest that the interests of the individual are best served by the Opposition’s amendments.
- Mr Chairman, I feel that I should answer that argument. There is a great fallacy in what has been put by the Deputy Leader of the Opposition (Senator Greenwood). If there were in such areas clear rules there would be no problem at all; but there are not clear rules. Where one has functions such as engaging in research there are no clear rules. If there are rules then they ought to be observed, whether by the Trade Practices Tribunal or anybody else. Certainly there ought not to be any kind of dispensation with the law. But we do not have that. We have functions being given in a broad way. There seems to be something inherent in what the Deputy Leader of the Opposition says that persons are to be entrusted in some uncontrolled way; that it is perfectly all right to establish some independent authority, as the Opposition calls it, to set up a commission that can do what it likes and virtually to remove it from parliamentary supervision and ministerial responsibility. So it is perfectly all right for the person occupying that position to do just what he likes and to be subject to no kind of supervision or direction. Here the direction which is sought to be given is to be given by some public person, a Minister of the Crown. The political affiliations of that person will vary from time to time, but at least he will be responsible. If he gives a direction it will have to be publicisedmade known to all- and he will be answerable for it. The Opposition is suggesting that not even that reserve power should be able to be exercised but that instead a commission should be able to exercise all those functions and virtually be able to thumb its nose at any government which felt that it was necessary to give it some kind of public direction. I do not think that viewpoint would assist in the better maintenance of our system of parliamentary democracy and supervision over those who are exercising quite important administrative powers.
That the words proposed to be left out (Senator Greenwood’s amendment) be left out.
The Committee divided. (The Chairman- Senator J. J. Webster)
Question so resolved in the negative.
– I move:
I suggest that this amendment be taken as one proposition.
– The Opposition is grateful that as a result of the debate which has occurred there will be some change in the provision. Naturally the amendment does not go as far as we would have liked, but we welcome the Attorney-General’s initiative.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 30 to 39- by leave- taken together, and agreed to.
When a member of the Tribunal, 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 body corporate 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.
– I move:
I do not think that the amendment needs to be elaborated in detail. It seeks to apply to the Tribunal the same requirement with regard to the disclosure of interest as the Committee has accepted with regard to members of the Commission.
– This amendment stands on the same footing as the other provision. We cannot see any great harm in it. We think that the clause as it stands is all right, but to save unnecessary differences of opinion we are prepared to accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 41 to 44- by leave- take together, and agreed to.
2 ) A corporation shall not-
The amendment which the Opposition moves to clause 45 is designed to ameliorate the severity with which this clause would operate without some guidelines as to how it is to be interpreted. We commence, of course, in our examination of this clause with the 6 provisions which constitute the broad prohibitions which are the meat of this
Bill. Clause 45 as it stands at the moment provides in sub-clause ( 1 ) as follows:
A contract in restraint of trade or commerce that was made before the commencement of this sub-section is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a corporation.
Sub-clause (2) states:
A corporation shall not-
make a contract or arrangement, or enter into an understanding, in restraint of trade or commerce; or
give effect to a contract, arrangement or undertaking that is in restraint of trade or commerce, whether the contract or arrangement was made or the understanding was entered into before or after the commencement of this sub-section.
So there are 2 provisions which generally indicate what are the comprehensive words of the prohibition. It might be said that this is the general catch-all provision with enormously wide ramifications. We seek initially to clarify a position which is on the threshold. Suppose there is an agreement of many provisions of many facets and one of those provisions is in restraint of trade and therefore is unenforceable or under proposed sub-section (2) is generally to be regarded as unlawful. What is to be the effect of that unenforceable provision or that unlawful provision upon all the other provisions of the agreement? For example, to use the customary type of situation in which restraint of trade has been examined in the courts up until now, if a person sells his business, receives a very considerable sum and agrees that for a period of, say, 5 years after the sale he will not carry on or enter into a similar business within, say, one mile of the place where he previously conducted his business, it may be that that is a clause which is in restraint of trade. But does that mean that all the other parts of the agreement are declared unenforceable or unlawful? Does it mean that the parties have to be put back in the position they were in before the contract started?
What is the general ability of the courts to sever the part of the contract which is bad from the part of the contract which is not contaminated? Is the whole contract unenforceable? Is the whole contract unlawful? These may seem to be lawyers’ questions, but they are questions of immense practical importance to persons who may find themselves in a predicament. The Opposition regards both these clauses as unclear as to what the consequence will be. There is no doubt that a person who is affected could take his case to court and the courts would be able to lay down a rule. But that is expensive and it may be disastrous for the first person who has to go to the court to have the matter clarified. Therefore, we propose that the matter should be made quite clear. The purpose of inserting new sub-clauses ( 1 ) and (2) is to overcome that problem. Therefore, I have moved to leave out sub-clause ( 1 ) and substitute the following sub-clause:
We think that makes perfectly clear what the result will be. The next amendment I have moved to clause 45 is in relation to sub-clause (2) . I have moved to leave out sub-clause (2) and substitute the following sub-clause:
A corporation shall not-
The Opposition’s amendment in relation to those 2 sub-clauses is designed to clarify what is not clear. We suggest to the Senate that this is a tidying up provision which will be of assistance to those who have to work under the restraint which this legislation imposes. The purpose of the third amendment to clause 45 is to provide that contracts will not be in restraint of trade unless the restraint is likely to have a significant effect on competition. In this case I believe that there is a very clear difference not only in emphasis but also in effect between what is proposed by the Government and by the Opposition. I invite the Senate to look at what is contained in clause 45 (3) of the Bill. It states:
A contract, arrangement or understanding is not in restraint of trade or commerce Tor the purposes of this Act if the restraint has such a slight effect on competition between the parties to the contract, arrangement or understanding and on competition between those parties, or any of them, and other persons as to be insignificant.
The crucial words are: ‘if the restraint has such a slight effect on competition . . . as to be insignificant’. The Opposition believes that that is a cumbersome, unsure and uncertain way of expressing what we are concerned to overcome. We believe that a contract in restraint of trade should not be regarded as unenforceable or unlawful unless it does have a significant effect on competition. That is the way the clause should be expressed. If the arrangement that is being entered into does not really affect competition or have a significant effect on competition, why should it be regarded as unlawful? Why should not the basic freedom of contract which is the lifeblood of our free enterprise system be able to operate as the parties to the agreement intend it to operate? If it is to be regarded as unlawful, it is unlawful because it does have a significant effect on competition, and that is clear. We believe that what we propose is a much better provision than the one which is proposed by the Government.
However, we recognise that there is a particular type of agreement in respect of which a different stance may be adopted. We have acknowledged from our reading of the reports of the Commissioner of Trade Practices presented under this legislation which the Government has so unjustly categorised as being so ineffectual that price fixing agreements are agreements which can virtually never be sustained in the public interest. The Commissioner’s work in this area, I believe, has had an enormous impact throughout the business community. As a result of that impact, as far as I can understand, those many people who and organisations which have made representations to the Opposition, that the case for price fixing agreements in preference to the benefits which competition can provide cannot be sustained in the present economic climate. I believe that is one of the tremendous achievements which the pre-existing trade practices legislation has to its credit.
Therefore the second of the amendments which we have moved to this clause is designed to ensure that these price fixing agreements will be assumed to be in restraint of trade or commerce and will be declared by the legislation to be in restraint of trade or commerce and therefore unenforceable or prohibited unless they have such a slight effect on competition as to be insignificant. We keep to that sort of language which has been used. That is the purpose of the amendments which have been moved by the Government. We do not believe that the socalled de minimus provision which is to be applied in regard to price fixing agreements ought to be the general provision which applies to all agreements which are alleged to be in restraint of trade. There ought to be some guide as to what are agreements in restraint of trade. After all, this is what happened in America and the courts in America have brought down qualifications and refinements or what is called, I understand, the rule of reason’, so that only certain types of contracts in restraint of trade are regarded as unenforceable or unlawful. We discussed this in the second reading debate.I do not know why the Government did not introduce into the Bill itself some guidelines as to what constitutes an agreement in restraint of trade. That is what happened in America but apparently it is not to be given to us in this Bill unless the Senate accepts some of the amendments which the Opposition is proposing. We believe that if we are going to have this type of legislation then as far as possible if ought to provide some guidelines or some certainty to those who have to operate under the legislation. They should not be left to make their own judgment according to the advice of the solicitors whom they have at their side every time they enter into an arrangement, which seems to be the position that many of the corporations are contemplating in the near future. For those reasons we have offered the amendments which have been moved.
There are 2 basic reasons. The first 2 clauses relate to severability and the other two indicate that a contract, arrangement or understanding is to be considered as being in restraint of trade only it it does not have and insignificant effect on competition and in the case of a price fixing arrangement only if it has a significant effect in the terms in which the Government has proposed.
-No one seeing or listening to Senator Greenwood would think that he would be cruel or unjust, but it does seem to us that the proposal that he is making is very cruel and unjust in the commercial sense. I would ask him to reflect upon what he is really putting. He is putting, to use a simple case, that if some part of a contract is illegal you should strike out the illegal part and leave everything else. This could produce some very unjust results. Let me illustrate the position with a simple case without all the legal formulations. Imagine that Senator Greenwood and I had some arrangement to get rid of the problem of consideration. Imagine that we had an arrangement by deed under seal under which the honourable senator was to give me$1m and I were to do something which would be in contravention of this provision. We do not have the problem of consideration. The arrangement stands up because it is under seal. Really what Senator Greenwood would say, to put it in its simplest terms, is that you strike out the obligation which I have because that is illegal, but I can still demand my $ 1 m from him. I am putting a very simple case, but this is a horrifying thought to industry or commerce. If you have an arrangement which comes in conflict with this enactment, such harsh and uncommercial results could be produced.
Over the years the law has dealt with illegal contracts or contracts or arrangements which may be partially illegal, and some very careful rules have been worked out in order to avoid such harsh and unjust results. Those rules, I think, are set out fairly clearly in the judgment of Chief Justice Jordan in the case of McFarlane v. Daniell, which is reported in 1938 New South Wales State reports, at page 345. I refer the Committee to that judgment. Chief Justice Jordan said:
When valid promises supported by legal consideration are associated with, but separate in form from, invalid promises, the test of whether they are severable is whether they are in substance so connected with the others as to form an indivisible whole which cannot be taken to pieces without altering its nature. If the elimination of the invalid promises changes the extent only but not the kind of the contract, the valid promises are severable. If the substantial promises were all illegal or void, merely ancillary promises would be inseverable.
The High Court has applied that test to a contract tainted with illegality in the case of Thomas Brown and Sons Ltd v. Dean, which is reported in 1963 Argus Law Reports at page 378. What we have tried to do is to meet the situation by allowing those rules which have been evolved to operate. They are rules of common sense. They have operated, I suppose, for a century, and probably even longer. If you are faced with a contract which has an element of illegality in it, what is the fair and just thing to do? Our provision is aimed at dealing with the situation in the traditional manner- that is, the court would, if necessary, solve it in an equitable fashion. I would think that that, with respect, ought to be acceptable to the Opposition.
We do not want some kind of rule which could produce some very harsh and unjust results. This would be, I think, intolerable commercially. We do not want that to happen. I suggest, with respect, that the Government’s proposal should be accepted.
– What do you mean by the Government’s proposal’? You have not explained that yet.
– We have circulated the amendments which we propose to move. We suggest that there should be several changes in this clause. They arise as a result of lengthy discussions. I indicated that the Government would bend and endeavour to meet the wishes all round in order to get something that was generally acceptable. Even if we were satisfied that what we were doing was right, if we could get something which would allay fears and express things to people in a more acceptable way, we would do it. That is why we will put forward proposals in relation to clause 45. Sub-clause 2 (b) of clause 45 contains the words: ‘give effect to a contract, arrangement or understanding’. We propose to insert the words: ‘to the extent that it is’. We propose to delete sub-clause (3) and insert subclauses (3) and (3a) as circulated. These subclauses maintain the provision that it is not in restraint on trade if it has such a slight effect on competition as to be insignificant. We seek to maintain the arrangements dealing with prices, discounts, allowances and rebates, which are really price fixing arrangements.
In sub-clause (3a) in relation to a contract, arrangement or understanding, leaving aside the test of such a slight effect on competition as to be insignificant, in effect we are saying that we will switch the onus and require that it be shown that there is some significant effect. The proposed sub-clause reads as follows:
A contract, arrangement or understanding that is not of the kind referred to in sub-section ( 3 ) -
That is, not of a price fixing category- is not in restraint of trade or commerce for the purposes of this Act unless the restraint has or is likely to have a significant effect on competition between the parties to the contract, arrangement or understanding or on competition between those parties or any of them and other persons.
The Government feels that one could live with the proposition that in areas other than price fixing arrangements- I use that term in a general sense- one could show that there was some significant effect or that there was likely to be.
I accept that some might say that the amendment is a watering down. It is not one that would trouble the Government and yet it seems to have produced a degree of acceptability in those in commerce who are concerned with the legislation. I understood that the proposals which the Government has circulated were acceptable to the Opposition. There has been a great deal of discussion and drafting of clauses over the last day or so. I am not saying that in any way the Opposition is at fault, but I understood that this had in some way been communicated to the Opposition and that it would probably accept as reasonable the proposals the Government is putting forward. Perhaps Senator Greenwood has not had that understanding communicated to him. These modifications to the original proposals have been carefully thought out. I believe that what the Opposition is putting forward would produce unexpected results. I ask the Senate not to accept the Opposition’s amendments. If they are rejected I will propose what have been circulated as the Government’s modifications to clause 45.
-May I intervene at this stage to seek elucidation from both sides? I refer first of all to the amendment that Senator Greenwood has put forward. The idea that we can have simply a striking down as unlawful of the very provision that is in restraint of trade comes to me as a new notion in this field. My understanding was that a contract in unreasonable restraint of trade- unreasonable from the point of view of the parties and from the point of view of public interest- was void except insofar as there were severable provisions in the agreement, and where money is paid under it the question is whether the avoidance is for the benefit of a particular class. In some of those cases if the avoidance is for the benefit of a particular class, even though the avoidance may be actually creating an illegality as distinct from voidance or unenforceability, money is recoverable.
– I think you are coming to our point of view, senator, in the general drift of what you are putting. I think you will be with us. You would not want what is being proposed by the Opposition.
-I am just putting my point of view for the purpose of seeing whether there is difference from it on either side. I take this opportunity to state that position and to show that to me it would be quite new to say that only the provision that is in restraint of trade is unenforceable. I think, it would produce anomalous consequences.
– That is what is being proposed from your side.
– I am addressing myself to Senator Greenwood primarily. If I am in agreement with Senator Murphy on this matter, that does not deter me from pointing out any matter. I am only seeking elucidation. I have not had the chance to verify this matter and I speak very tentatively.
The second matter I wish to mention is that, as I understand it, under the common law a contract in restraint of trade is not void or unenforceable. It is only void or unenforceable if it is unreasonable, first in the interests of both parties and, secondly, from the point of view of public interest. In this Bill there is nothing about unreasonable restraint of trade. The Bill seeks to strike down a contract in restraint of trade and says that it is unenforceable. Senator Murphy has put forward in the print of the Bill language to say that one should not trouble about a restraint because it has such a slight effect upon the competition between the parties as to be insignificant. That is new language. Is it intended to be synonymous with the common law definition of the situation? If not, in what respect is it intended to be different? I think that in this field of the law we will add to the perplexity and confusion if, in relation to Commonwealth law dealing with activities of corporations, we introduce this new formulation of the law to create a substantial difference in the formulation of the common law which will still apply to private individuals. These individuals who are not corporations will be subject to the common law as varied by any State law. To me the whole thing is a hotchpotch. I think that it demonstrates that the Government is creating a cobweb which will defy practical, efficient administration.
-I take the point that 3 broad issues are canvassed by the amendments. The first is the point to which Senator Wright has addressed my attention and Senator Murphy’s attention, which is whether a provision which states that where there exists a contract in restraint of trade, nothing in this legislation is to render unenforceable any provision in such a contract that is not in restraint of trade or commerce, is a novel and, indeed, unreasonable addition to the law. I think the general proposition as Senator Wright stated it was whether pans of an agreement which is generally held to be in restraint of trade are to be enforceable depends on the extent to which they are independent of the other provisions; and whether by the ordinary canons of severability the pans of the agreement which are sought to be enforced can stand on their own and have no connection to each other. It may be that the words which are sought to be added in this area by the Opposition’s amendment are surplusage and unnecessary. I know that when Mr Ellicott moved these matters in the other place he stated:
The purposes of these amendments are as follows: . . . the purpose of sub-clauses (1) and (2) is to ensure that the effect of the unenforceability of a contract will not be to make unenforceable the other provisions. This may indeed be clear as a matter of law already but it ought to be made clear specifically in the legislation.
– But the honourable senator can see that that is a very unjust result.
– I agree that, as an elaboration of the propositions involved that view as Senator Murphy puts it, it could have an unjust result. Viewed as Senator Wright puts it, it may be that it is simply stating in language which is not as eloquent as it could be the precise position at law at the present time. I recognise the force of both considerations. Looking at what was said in the other place and at the reasons which were advanced, I believe that nothing will be lost in the light of those arguments by not pursuing that pan of the amendment. But then I note the second of the propositions, that is, whether the proposal of the Opposition is preferable to the proposal of the Government as to the effect which should be given by any companies to contracts, arrangements or understandings in restraint of trade where there are provisions which are not in restraint of trade. Here, as I understand it, though it is not included in clause 45 (1) it, is to be included in sub-clause (2), which states that it shall not have effect given to it to the extent that it is in restraint of trade or commerce, which I imagine is another form of words to give effect to the same proposition as was used in sub-clause (1). To me it seems relatively immaterial which form of words is used because either form indicates that the severability doctrine is to have some application. In those circumstances, unless other arguments are advanced, we will defer our amendments in this area to the amendments proposed by the Government.
The third point relates to the distinction between agreements which are in general restraint of trade, which ought to be banned because they have a significant effect on competition, and those agreements in restraint of trade which are of a price fixing variety and which ought to be always in restraint of trade unless their effect on competition is so minimal that they can stand. It appears that the only distinction- I would be grateful if the Attorney-General would confirm this- between the approach of the Government and that of the Opposition is that the Government’s approach is to give a wider interpretation to contracts, arrangements, or understandings by saying that not only such agreements but also those which have the purpose or effect of fixing, controlling or maintaining a price are to be covered by the provision.
– I think that is right. There is very little difference.
– In those circumstances, having regard to the fact that the Government’s amendment is wider than that of the Opposition, we likewise accept that amendment. But it does leave open the question which Senator Wright has raised and to which I would be equally interested to hear the reaction of the Attorney-General. What does this do in the ordinary situation to a contract which is held to be in restraint of trade because it is not reasonable between the parties, it may have a very significant effect on competition but, in the interests of what one of the parties has sold, the courts otherwise regard the contract as a reasonable restraint of trade?
– I thank the Deputy Leader of the Opposition (Senator Greenwood) for his attitude on this clause. I will answer the question raised by Senator Wright. The old doctrines really dealt mostly with the position as between persons; for example, the sale of a business or the master and servant situation. Although there were references in the judgments to the public interest, such cases really related to reasonableness as between the parties. There was a party and party situation. In this case the public comes in very definitely in the sense that these contracts, arrangements or understandings are rendered a contravention of the law, however reasonable they might be as between parties. For example, an arrangement that was operating as between parties might be quite satisfactory to both. Neither of them might want to complain about it. However, that arrangement might be manifestly against the public interest. That is why we have moved away from what we might call the common law approach and have left in clause 5 1 provisions as to matters which are dealt with in the old common law. Regard is not to be had in these matters to the master and servant relationship, and so forth. Those things are spelt out and are not being dealt with in the enactment.
– I remain unenlightened and I ask the Committee to spare me the time to make one or two further remarks. I would have thought that in this realm there would be included not only master and servant relationship but also the vendor and purchaser relationship. Also involved are questions of co-operative companies. Several cases of restraint of trade in articles of association, particularly of co-operative companies, come nearer to the type of restraint that I thought we were reaching out to provide for in this legislation. It would never be argued, but for this legislation, that a provision which was simply in restraint of trade, but not unreasonably so, was void. But this legislation is so expressed that clause 45 states:
A contract in restraint of trade and commerce … is unenforceable . . .
Later the clause contains the words: ‘if the restraint has such a slight effect on competition’. That is hardly the sort of word that is appropriate to a master and servant case or a co-operative company case. It is the sort of word which has relation to the type of contract that refers directly to trading activities between traders. The Bill says that such arrangements are to be struck down but also says that they are not to be struck down if the restraint has such a slight effect on competition as to be insignificant. Does that catch the question of master and servant relationships, vendor and purchaser relationships and co-operative companies, or is it limited simply to a trade association whereby 50 members of a trade association say that they will sell their goods only in accordance with provisions (a), (b), (c) and (d)? In that case I can understand any restraint being referred to as having a slight effect upon competition; but, in the other cases, no.
I am only seeking enlightenment because I really suggest that the little that we have scraped the surface here in this discussion illustrates only the dust on the street. The mud in the road that has to be ploughed through by litigants laboriously and expensively to get to the true meaning is illustrated by what I say. What happens when the situation is reached where the old law applies to individuals and the new law applies to corporations? What happens where the agreement is between a corporation and an individual? We know of some individuals who are in substantial trade. What is the position? I understand that this legislation has nothing to say in regard to the position of a contract between a number of individuals who are not corporations.
I have not risen simply for the purpose of speaking. I have risen for the purpose of trying to indicate in a very tentative way the difficulties I feel in seeing any clear meaning in this legislation. I refer to the difficulties I see that will confront people who are anxious to comply with the legislation and yet will not know its meaning. I lay that before the Committee not because I attempt to add further clarification by way of amendment but to give opportunity to others who have assistance more readily at hand if it is appropriate to consider whether clarification is needed. I ask the Minister: Am I in error in remembering that somewhere in this legislation there is a specific provision to say that the provisions do not apply to the sale of goodwill?
– Yes, in clause 51 to which I referred the honourable senator before. The honourable senator will find the answers to some of his queries if he reads clause 5 1 which relates to vendors, purchasers and so on. I think the Committee should understand, and others also- although Senator Wright suggests that because some new language is used the legislation will be difficult to follow- that a great deal of discussion has occurred on the various clauses and on this one in particular. It is important to note that a general acceptance has been arrived at by those who will be affected by the legislation; that the clause, as the Government is proposing, is a good one; that this is the way it should be framed; that it has been hammered out and thought about; and that this is the result arrived at. I do not think it is altogether fair to speak of the legislation as if it were some kind of monkey puzzle that those in industry would not understand when they, and certainly their advisers, have very well understood it and have asked for some modification and so forth. They quite well understand what the responsibilities would be. Indeed, in large measure, some of them welcome this legislation and want it as the Government is proposing it.
Therefore I say to Senator Wright that in general terms the answer to the queries he puts is that if there is- I speak broadly without the frills- a significant effect on competition the arrangement is covered by the Bill. If this is not so, the matter will be left to the common law. I understand that Senator Greenwood indicated really that he was prepared not to oppose the Government.
– We would withdraw our amendment in favour of the Government’s amendment in these areas that we have been discussing.
– I will move the amendments to clause 45 which have been circulated.
-Order! That agreement having been reached, it will be necessary for Senator Greenwood to withdraw formally his amendment. Does the honourable senator seek leave to withdraw his amendment?
– Yes, I seek leave to withdraw it.
– Is leave granted? There being no objection, leave is granted.
Amendment- by leave- withdrawn.
Leave out sub-clause (3) and substitute the following sub-clauses:
– As this is quite a large amendment, the purpose of which is to leave out certain words, it may be convenient for the Committee if I put the question: ‘That the amendment as moved by Senator Murphy be agreed to’. Is it the wish of the Committee that I put the question in that way?
– From the point of view of the Opposition, I certainly would agree that it be put that way. The Opposition does not oppose clause 45 because we have by our assent to the second reading of this Bill, agreement in principle to the measure. We recognise that probably the kernel of the measure is contained in clause 45 but certainly share much of the apprehension expressed by Senator Wright, as I believe do most Opposition senators. I use this opportunity to repeat that this clause will require an immense number of ad hoc judgments to be made by courts inexperienced in this sort of concept when matters are brought before the courts for interpretation. I believe that this clause will not aid the cause of effective trade practices legislation designed to promote a competitive climate in the community. I believe it will have a restraining effect because the language which it uses is vague and uncertain. The concepts to which it gives expression are concepts which are completely novel to those who are engaged, in the broad, in business and commerce in this country. It will be a long time before there can be any benefit to consumers or those who derive benefit from competition from the adoption of this approach.
The attitude of the Opposition- it is an attitude which we make abundantly clear- is that we regret that the Government has forgone the type of approach which has developed in this country over the last 8 or 9 years in favour of a completely new approach. Whilst it is of no comfort to prophesy, I certainly feel that this legislation will cause more damage and problems than would a sensible, pragmatic approach on the other legislation to which everyone in the community was becoming accustomed. That legislation was biting harder with each successive year. I think this is a retrograde step. However, I mentioned those matters because, whilst we do not like it, we hold these views. We recognise that we have to take a step forward from our existing legislation. The Opposition would have preferred to have gone in the direction along which we were indicating we were proceeding. But we were not given the mandate to do so. We recognise that the Government does have an obligation to take its trade practices legislation further, and it is doing so in this way. We will not oppose the amendment.
– Before this matter is finalised, I wish to express again my concern at the lack of clarity as to what constitutes insignificant restraint. Sub-clause (3) of clause 45 states:
A contract, arrangement or understanding is not in restraint or trade or commerce for the purposes of this Act if the restraint has a slight effect on competition between the parties to the contract, arrangement or understanding and on competition between those parties, or any of them, and other persons as to be insignificant.
I would like to ask the Attorney-General whether he can be more explicit as to what would constitute insignificant restraint. Can it be put in a numerical setting? The wording is, in my opinion, so airy-fairy as to give rise in the minds of businessmen to a complete lack of clearness as to what could constitute an illegal act. Surely this could be made more explicit than as it now appears in these very wordy lines in this amendment.
– One of the complaints made by Senator Laucke, I think, is that some more precise term should be used. Really he is complaining against language itself. We use the word ‘reasonable’ in legislation. We use all sorts of other terms. There is no way of overcoming this problem. If one tried to formulate some kind of arithmetical test one would get into difficulty. How could one possibly do it? In relation to competition, how could one measure 5 per cent of competition? There is really no way in which one can approach these matters other than to use some such terminology and allow for its application by some person or body if a quarrel arises about it.
How would it work out in practice? The persons concerned could approach the Commission and say ‘Here is the restraint that we are contemplating’, and get a certificate from the Commissiona clearance that what they propose to do is in order because it does not amount to a significant effect on competition. I am again using the words broadly. If a question arose otherwise, where the Government or the Commission considered that there had been some breach of the proposed Act, that they had not got some clearance and yet went ahead, as with anything else it would ultimately have to be resolved by a tribunal invested with authority to determine such matters.
We are in an area of language where there is no way of doing what Senator Laucke suggests, where there can be no absolute certainty. No man has ever been able to solve the problem which the honourable senator puts to me. I can pick out much worse instances for him which affect industry and commerce. For instance, there is the very action of negligence that is founded on the concept that an employer or manufacturer must take reasonable care to provide proper equipment and put in a proper and safe system of work. One might say to me: ‘Can you not do better than describe it as “proper”? Can you not use some other word than “reasonable ‘ ‘? ‘ Who knows what is reasonable?
It is simply a problem of language and one will find instances on every page of the statute book where one can ask for the precision which Senator Laucke is asking for now. It is just not possible to give it. Those who are concerned with the legislation, as those who have considered it- the representatives of those in industry- seem to be satisfied that this is a proper way to go about it and that we are using words which will have meanings for them and which are capable of application within the framework of the proposed Act. We have done the best we can, I assure Senator Laucke, and it is not possible at all to do what he is asking us to do.
Amendments agreed to.
Clause, as amended, agreed to.
1 ) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-
For the purposes of this section, a corporation shall be deemed to be in a position substantially to control a market for goods or services if that corporation and any related corporation or related corporations are together in a position substantially to control that market. (3 )This section does not prevent a corporation from-
– I move:
The insertion of this word may seem to be an amendment of little consequence. We do not regard it as being of little consequence. The Opposition suggests that the addition of the word wilfully’ will indicate that there has to be a conscious knowing act which must be shown before a person can be found guilty, if that be the appropriate description of the state in which a person finds himself when he has offended against this clause, of monopolisation. Monopolisation is again a word so sweeping that one wonders whether it might not defeat its very purpose. If honourable senators look at where the Opposition wants to put the word ‘wilfully’ in subclause ( 1 ) they will get an indication of what the Opposition is concerned about. It reads:
I ) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-
What is meant by the words: ‘A corporation that is in a position substantially to control a market for goods or services’? We were told in the course of the explanation of the Bill in the second reading stage that an arithmetical test by which one looked at the size of the market and determined what proportion of the market a company controlled was not an adequate test because it was illusory. One sees difficulties in that test and I would not blink at them.
What is the position as a result of the words that are now to be relied upon? When is a company to know whether it substantially controls a market for goods or services? What is a market? Is it the market within the area in which the company is operating? Is it a market within the capital city, or the metropolitan environs? Is it a market which is State-wide or is it a market which is Australia-wide? We are not given assistance by the definition except to the extent that a market means a market in Australia. These are problems which will confront any company which may feel it is in a position substantially to control a market. Whilst it may be said that it is a good thing that a company in that position has to have regard to what, it does and that this legislation might help to make it have regard to what it does to ensure that it does not act against the public interest nevertheless the larger the control which a company has on a market the greater are the obligations it owes and the greater the dependence of other people upon that company being able to continue to provide the goods or services which it is in business to provide.
I instance the fact that the clause as it stands prohibits a corporation that is in a position to substantially control a market from engaging in conduct that is directed to eliminating or substantially damaging a competitor in that market. What is the position if a large company decides to cut prices? If a company feels that there is an area in which it can reduce its prices, its doing so may have the effect of prejudicing a competitor. That has the effect of eliminating that competitor from the market and that is something which the Government is trying to prohibit. If it does not eliminate the competitor from the market it substantially damages the competitor. Therefore, we could have the anomalous situation that what was a genuine price reduction by a company which was operating over a wide field could be regarded as a contravention of this provision. It could decide to expand its sales, to engage in a vast promotional campaign or to undertake immense advertising expenditure because it believed that this was the way in which it could promote its business. It knew that it could promote its business only by the benefit it gave to its customers by the sales it could make. It will increase sales only if it makes a greater impact on the market. This could have the effect of reducing the number of people in that market. It could have the effect of eliminating some people who were close to the line and who could not withstand the hotter competition.
I would be interested to hear the AttorneyGeneral’s reactions to this point. On the face of it, it would have the effect of exposing the company which did these things to action by the Attorney-General, the Trade Practices Commission or any competitor who was eliminated. The only defence, I imagine, which such a company could raise would be: ‘ We were endeavouring to expand our business. We knew that we would increase our sales, but we did not know that we would eliminate a competitor. We took a different view, possibly, about the size of the market. We may have done it quite innocently’. Therefore, we believe that some provision ought to be inserted in this legislation which states that there must be a conscious action by the company which does these things before it can be exposed to the penalties which the Act provides.
In short, we say that before a corporation which is in this position can be said to have monopolised, it must be shown to have done so with an intent. It must be shown to have wilfully done so with a view to achieving one of the objectives which are set out in the legislation. Therefore, the word ‘wilfully’ is proposed to be inserted. We are not completely satisfied that the word is the best word which can be used to explain the purpose which we have in mind. If it appears to the Attorney-General that the point we are making is one which he is prepared to accommodate in any way, we would be interested to hear whether he has a form of words which would endeavour to meet the situation. We certainly feel that there could be a completely paradoxical situation under this legislation if a company which provides a greater service to the public is said to be acting contrary to the best interests of the public.
– The provision is not directed at size as such. It is confined to the conduct by which a monopolist uses the market power he derives from his size against the competitive position of competitors or would-be competitors- for example, by inducing a supplier or customer who is dependent upon him not to deal with a competitor, or by predatory prices. A monopolist is not prevented from competing as well as he is able- for example, by taking advantage of economies of scale, developing new products or otherwise making full use of such skills as he has or protecting his patent rights in respect of an invention. In doing these things he is not taking advantage of his market power. Therefore, the example which the Deputy Leader of the Opposition put is not really in point. He said that the monopolist, by dint of his skills, increases his sales and so forth. That is not a contravention of this clause.
-Why is it a contravention if he reduces the ability of someone to compete because that someone loses his share of the market?
– Because in that instance he is not taking advantage of the monopolistic power. He is just using ordinary skills, whether they are described as competitive skills or other skills. The situation is not covered by the clause. We oppose the amendment on the ground that it merely adds another element of proof. It is an element of proof which is quite unnecessary having regard to the elements already required to be proved; for example the need to show that the monopolist has taken advantage of his power to control the market- not merely that he has it but that he has taken advantage of it. The inclusion of this word ‘wilfully’ will create problems.
It will not be easy in this kind of legislation to deal with monopolists. Monopolists are, by their nature, well able to protect themselves, but if one contemplates a situation where in proceedings in court the word ‘wilfully’ is seized upon, notwithstanding that all the other elements of the case are established one can see that there will be immense problems in showing wilfulness and intent on the part of a corporation. In the United Kingdom there is dreadful trouble, even in criminal matters, when the courts have to determine what the word ‘wilfully’ means in terms of the conduct of a corporation. As one would expect, it is an entity in the law, an artificial construction of law, and if one has to prove some concept of wilfulness it will produce something which is quite unnecessary and quite unwarranted in the light of elements which already exist in this legislation. The provision has been carefully and thoughtfully drafted. It has been given a great deal of consideration and I would ask the Committee not to add words such as this which will be simply another peg by which corporations will endeavour to escape the consequences of action which ought not be carried on.
The Opposition is really saying that: notwithstanding that all the other elements are established, the monopolist- the corporation- that is in a position substantially to control a market for goods or services and take advantage of the power in relation to that market that it has by virtue of its position, to eliminate or substantially damage a competitor in that market or on the other hand to prevent the entry of a person into that market or another market or to deter or prevent a person from engaging in competitive behaviour, will be permitted to do any of these things unless it can be shown that what this monopolistic corporation did was in some way wilful. It can use its position, take advantage of it, damage the competitior or prevent the entry of persons into the market and the Opposition says: No troubles. It is entitled to do that.’ Under the Opposition’s approach a monopolist is perfectly entitled to take advantage of its power to do damage to and to prevent the entry of competitors into the market because it has not been shown that its action was wilful. The corporation has done it but we have not proved this extra element of wilfulness. I would suggest that some reflection on this matter should induce the Opposition not to persist with the philosphy that a monopolist is perfectly entitled to do any of the things I have mentioned so long as it was not wilful and would be perfectly entitled to take advantage of its monopolistic power to eliminate or substantially damage a competitor without infringing the law. If the Opposition’s philosophy is that a monopolist ought to be able to do this with impunity unless one can show that it is wilful, the Government does not agree with it.
-I do not think there is any need for us to speak impulsively with regard to this matter. On the last amendment I think it was shown that a little thoughtful analysis of a matter is much more conducive to a beneficial result. Regarding the argument that to attribute wilfulness to a corporation is some obstacle to the courts, I suggest that this is not so. On the contrary, regarding corporations there is every probability that one would be in a position to show wilfulness more cogently than in relation to an individual. Most of the activities of a corporation are minuted from day to day; there is not only correspondence but minutes growing, showing the development and therefore the purpose of any activity of a corporation. The next thing I suggest to see whether the Opposition amendment has merit, is to see who is the monopolist. I could, I am sure, attract great support in this audience and outside if I started to inveigh against the evils of monopoly. Then some protagonists of government would say that government monopolies are very blessed. Others would say there are big and little monopolists. The trouble with this clause is that it does not indicate clearly that to be a monopolist within this clause one must have in a degree a comprehensive or substantial strength- because it all depends on what one means by a ‘market’. The only definition the Government gives to monopoly’ is in clause 46 ( 1 ), namely:
A corporation that is in a position substantially to control a market lor goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position -
a ) To eliminate or substantially to damage a competitor in that market or in another market;
to prevent the entry of a person into that market or into another market; or
to deter or prevent a person from engaging in competitive behaviour in that market or in another market.
2 ) For the purposes of this section, a corporation shall be deemed to be in a position substantially to control a market for goods or services if that corporation and any related corporation or related corporations are together in a position substantially to control that market.
So we have the situation that if a corporation is in a position substantially to control a market, then, as I read the clause, it prohibits that corporation from taking advantage of that power in relation to that market for 3 purposes. Let us say for brevity, to damage a competitor. Suppose that my business is simply to make buttons. Suppose that my business is simply to make trouser buttons. Suppose that my market is to sell buttons, or in the other case, trouser buttons. There is no question at all of area in this Bill. I therefore must be driven to the idea that it applies not merely to a store such as Coles which will be marketing a thousand different items but applies to those which are set up to market one or two specified items. Of course, we know that in regard to those items some people develop, by reason of their skill, a very great degree of prosperity.
I ask those who think that it is being fastidious to consider the textile manufacturer who produces only boys’ wear and not women’s wear or men’s wear. That is the market. Let me go on from there to the case of an enterprising manufacturer in the hardware field- I have nobody in mind; I take this case simply as an example, but I know of other fields in which this has occurredwho has built up a trade in heating equipment and who has, say, 80 per cent of the market for the 3 leading towns on the north-west coast of Tasmania. In that respect I suppose it could be said that that person is substantially in a position to control the market. Let us assume that his business has grown to such an extent since he started in Ulverstone IS years ago with a turnover of $50,000 that his turnover in the 3 towns today is $200,000, that he has no competitor who sells more than $20,000 in equipment and that as he grows he gets more up-to-date equipment with which he can produce more economically and undercut any other contractor who puts in a tender. Here we would have the situation whereby if I were to go along there and set up a similar business the original manufacturer, who would be in a position substantially to control that market in heating equipment, shall not take advantage of that market to deter or prevent me from engaging in competitive behaviour in that market.
Does an illustration of that sort not conclusively prove the necessity of having in this proposed section a word such as ‘wilfully’ to make the position quite clear? Consider the situation of the manufacturer who had built up his business to that degree, who by reason of his use of up-to-date equipment was able to produce more economically so that he could put in a tender for heating equipment that was at all times 80 per cent of what I in my smaller enterprise, using less efficient methods, could compete with.
We would be the most foolish House of Legislature in Australia if we were to enact legislation in such a form that it was an offence or contrary to the law for that efficient, growing manufacturer to take advantage of the position that he had built up by his efficiency and economy over the years to deter me or prevent me from entering into the market. Obviously what is needed in this proposed section to make it in any degree acceptable to a just mind is the proposition that the manufacturer shall not wilfully take advantage of his situation for the main or dominant purpose of deterring me, a smaller entrepreneur, from entering into the field just by repetitively putting in better tenders than I, an inexperienced entrepreneur, could submit. Surely we would be fostering the very abuses that the legislation seeks to suppress if we were not to so provide. Therefore I warmly support Senator Greenwood’s amendment. Some such word as that has to be introduced into this section to make it any degree reasonably acceptable. 1 submit that the whole of what 1 have said illustrates that this proposed section has a variable content. The variable content may be by relation to area or it may be by relation to goods or a particular species of goods; but what is a market depends upon a purely commercial notion. I suggest that the Attorney-General give real consideration to the matters that I have put before him and make the legislation just, or more just, because unless it is made just there will be the inevitable reaction from the courts of a reluctance to enforce an unjust or unreasonable law. Therefore, in the interests of efficiency, I ask the Attorney-General to make the legislation just to the extent of inserting the word ‘wilfully’ as Senator Greenwood advocates.
– I listened to Senator Wright and the example that he cited in support of the proposition that in his view some such word as ‘wilfully’ had to be inserted in sub-clause ( 1 ) of clause 46. It seemed to me that he was completely distorting the proper construction of the sub-clause. I go so far as to say that if the word ‘wilfully’, or any word like it, were inserted in this clause the whole clause might just as well be struck out of the Bill because it would be completely purposeless, useless and ineffective. In the first place it must be appreciated that, so far as offence provisions are concerned, the element of wilfulness, if it were inserted in this clause, would have to be proved beyond all reasonable doubt.
Let us take the case of a corporate decision, which is the area with which we are dealing. How on earth could it be proved, having regard to the 2 elements which it would be necessary to consider for the purpose of determining whether there had been an offence under this proposed section, that the corporate decision was a wilful one? The 2 elements in this clause which would have to be proved in any prosecution- I take it to the stage of prosecution because it is easier to discuss on that basis- are, firstly, the taking advantage by a corporation of its market power and, secondly, that there was a purpose behind the taking of that advantage; for example, to eliminate a competitor.
– Where do you get that connection in the words, may I ask?
-Simply by reading them in a common sense way. I shall read with emphasis the words contained in clause 46. Sub-clause ( 1 ) states:
A corporation -
I shall leave out the next few words which are descriptive-
– But you have added the words ‘ for the purpose of.
-No, I am construing the word ‘to’.
– That is the difficulty.
– I am construing the word ‘to’. That is obviously what it is designed for. I take Senator Wright’s point on this. How is it to be proved that there was a corporate wilfulness in relation to such a matter?
– What about conspiracies that are prosecuted day in and day out. What about the directors who enter into them?
-We all know about conspiracies and we all know about tapes. But I am dealing with a corporate decision which is made, firstly, to take advantage of market power and, secondly, to produce a certain result.
– Like the Commonwealth Government.
– I do not understand the relevance of that interjection.
– It has none.
– It is going to take over these corporations.
– I am still none the wiser as to the relevance of the interjection and I therefore agree with the Attorney-General that it has none. The simple position Ls that you could never prove wilfulness in relation to a corporation in this matter. If you cannot prove it, what is the use of having the word ‘wilful’ in the legislation? I simply ask the Opposition whether it is endeavouring to emasculate this provision of the Trade Practices Bill. If it says no, we will accept the answer and say that it just does not understand.
- Senator Everett did not speak for long. I wonder whether the reason for his brevity was that he recognised that in the elaboration of the clause in which he engaged he almost gave the case which the Opposition is putting forward, because he construed the clause which we are looking at in terms of 2 requirements. Firstly, he said that the company which is in the substantial position must take advantage of the power which it has in relation to that market; secondly, he used the words ‘ for the purpose of eliminating or substantially damaging a competitor’. I challenged him because the words ‘for the purpose of are not in the clause. The one word which is there is the short word ‘to’. Senator Everett said he would construe that as ‘for the purpose of, but once you get into this area of purpose I think you have to display something in the nature of intent or wilfulness. An individual or a company is doing something for the purpose. It seems to me that what you have to be able to show, on Senator Everett’s interpretation, is this wilfulness, and that is why we are seeking to make it part of the offence.
– How would you construe the word ‘to”?
– I would construe the word ‘to’ in the sense it has in the Bill as ‘if it has that effect’. Suppose, for example, a companyI think Senator Wright used this general example- acquires additional machinery because it has a certain power or rights. It may have patent rights or it may have purchased the machinery to take advantage of its size in a way which was not readily available to other companies. Suppose that in doing that, irrespective of what intent it had, it so happened that it was able to secure a further advantage which had the consequent effect of damaging and maybe eliminating competitors which could not sell as cheaply as that company was thereafter able to sell. It seems that if a company does that it ought not be regarded as engaging in monopolisation with all the penalties that this legislation seeks to impose upon it.
I suggest to Senator Everett that this is not a matter of endeavouring to emasculate the legislation. I think it is a problem which is inherent in this type of approach. It is a question of what is fair. Is it fair to penalise a company which undertakes activities which lead to increased efficiencies, reduced costs and reduced prices if as a result of doing that, without any intention of getting that result, a competitor goes to the wall? I think that the strength of our type of society has been built up because in the competitive environment the efficient have survived and the inefficient have not survived. That type of enterprise system builds up an economy and builds up a nation. We on this side of the Senate want to preserve it. I would think that conduct of the type which is proscribed by this legislation is more than likely to cause the destruction of innovation and initiative and all the benefits which competition can produce, rather than to promote those benefits of competition. We in the Opposition, of course, believe that size in itself is not wrong but that size which is improperly used is wrong. We believe that there ought to be a system under which misuse of power, misuse of dominant position and misuse of that control of a market which size produces is able to be controlled.
This is why we proposed the establishment of a monopolies commission. We regret that the Government does not see any merit in that type of commission, although it sees a lot of merit in all sorts of other commissions. We believe that that sort of investigatory approach would have examined all the allegations that are made against monopolies. It would have prevented those practices which were bad and it would have permitted those ones which were in the public interest. It would have been a system under which a distinction could have been made between anti-social practices and practices which were in the public interest. What this provision does is to create enormous uncertainty and raise doubt as to whether people who are genuinely promoting and developing their business activities are not going to find themselves proscribed and prejudiced simply because one of the ordinary consequences, unintended by them, is that a competitor is damaged or eliminated or that someone else who thought that he may have been able to enter a market finds that he is not able to do so. What ought to be looked at is the dominance which a company has in a particular area and whether that dominance is used improperly and in a way that may not be the best way. Apparently, the Attorney-General is not interested in trying to find a different approach to the problem.
We have suggested that the position can be helped by the addition of one word, ‘wilfully’, in the clause, so that where the action is taken with the intent of achieving one of these undesirable effects which are set out in the clause, that is what will be proscribed. If something happens simply as an unintended consequence or as a consequence which was not the purpose of the action, under those conditions there is no proscription intended. We believe that this is an amendment which ought to commend itself to the Senate.
– We do not think that the Opposition has made out any case for the inclusion of this word. Senator Wright has endeavoured to support his approach by putting up examples of what happened in north-west Tasmania. So far as I judge the position, none of them would come -
– They were hypothetical examples.
-Yes, but none of the examples would come within the purview of the proposed section. The honourable senator was talking about perfectly straightforward activities by a person who is expanding his business and who is able, by his energy or skills, to capture more and more of the market. Simply because other people cannot compete with him and sell at the same prices, they do not do so well. There is nothing in this example which is caught by the clause as it stands.
But let me take situations which would be covered by the clause. It may involve one of the larger stores such as Woolworths or one of those chain store type of operations. Such a store may be obtaining supplies from a manufacturer who was also supplying other persons. The chain store may decide that the competition from the other retailer is getting a bit severe and may say to the manufacturer: ‘Do not supply this other retailer any more, or do not supply him with any more than a certain quantity. If you sell to him you will get no more orders from us’. Such an approach would be taking advantage of the enormous power of the chain store and the huge market that it has. It is in a dominant position and it would be taking advantage of that position, in effect, to damage substantially the competitor, or even to prevent newcomers entering the field. The chain store may decide that it has enough competition. That would be conduct dealt with in clause 46 ( 1 ) ( b) to prevent the entry of a person into the market. Does the Opposition say that on top of all that one has to prove some wilfulness?
A director of a chain store may say: ‘This is perfectly sensible. We have been doing this for years. We are protecting our shareholders. This is the way we keep up our profits. We have a certain kind of operation. What is wilful about it? There is nothing wilful about it. It is a type of business conduct which has been carried on. ‘ But the approach being taken by the Opposition is that in the public interest it ought not to be carried on any longer. On top of showing that that kind of conduct has occurred the Opposition wants us to show that the monopoly is taking advantage of its monopoly position because that is what affects the manufacturer. The corporation says to the manufacturer: ‘You are not to do that otherwise you will get no more orders from us.’ That is taking advantage of a monopoly position in order to damage a competitor- and you have to show that the damage has occurred- or to prevent a competitor from entering into the field.
The Opposition says that is not enough. It says that we should have to prove some element of wilfulness. Where do we begin or end with the word ‘wilful’ in relation to a corporation? I put this again to the Opposition: Is it going to say that when a corporation turns to a manufacturer and says: ‘Do not supply this particular competitor otherwise you will not get orders from us,’ or in some way takes advantage of its monopoly position so as to bring about a result that in itself is perfectly all right? That is what the Opposition is saying because it is insisting that that kind of thing shall not be a contravention of the Act in itself. In addition, it wants to include some other element.
– Why do you say that example is not a contravention under what we are proposing?
-We say that the clause in itself is a proper clause. Under this clause one has to show not only that the competitor is damaged or that the entry into competition is prevented but also that this has been done by the monopolist taking advantage of his monopoly position. As it is, it is a pretty hard road to hoe. One has to prove these elements. The Opposition is saying that is not enough. It is saying that once you have established all those things your case will fail unless you also show some element of wilfulness in relation to the corporation. We submit that the clause should stand as it is written. We say that the word ‘wilful’ should not be included. There is a consequential amendment which I would like to move as a result of earlier amendments that were made, I think, to sub-clause (2).
– If the Attorney-General (Senator Murphy) is taking into consideration some amendment alternative to that which has been suggested, I suggest that he considers adding after sub-clauses ( 1 ) ( a), ( 1 ) (b) and ( 1) (c) some words to make ‘intent’ or purpose’ expressly a part of this provision. I rose at this stage to answer 2 elementary matters that fell from Senator Everett. Surely it must have been through inadvertence that he referred to proof beyond reasonable doubt for an offence under clause 46.
-I was referring to subsequent provisions which embrace contraventions of Part IV in which clause 46 falls.
-I would have thought that clause 78 (a) answered that argument completely. The honourable senator referred to the acts of agents of a company. I would have thought that clause 84 (2) answered that argument completely because that clause states quite clearly:
That is on the threshhold of what I wish to submit in answer to the argument. I later wish to direct some argument for the benefit of Senator Murphy.
Sitting suspended from 6 till 8 p.m.
– Before the suspension of the sitting I was addressing a few observations in reply to an argument advanced by Senator Everett and suggesting, firstly, that there was no doubt at all that this clause did not create a criminal offence and, secondly, that there was no doubt at all that a corporation could be liable for any activity or criminal offence that involved a specific intention, purpose, malice or any other state of mind, and that that depended upon the activities of those who acted for the corporation. I drew attention to clause 84 of the Bill subclause ( 1 ) of which is related to consumer protection in Part V. Sub-clause ( 1 ) reads:
Where, in a proceeding under this Pan in respect of any conduct engaged in by a body corporate, being conduct in relation to which a provision of Pan V applies, it is necessary to establish the intention of the body corporate, it is sufficient to show that a servant or agent of the body corporate by whom the conduct was engaged in had that intention.
Sub-clause (2) states:
Any conduct engaged in on behalf of a body corporate by a director, agent or servant of the body corporate or by any other person at the direction or with the consent or agreement (whether express or implied) of the director, agent or servant of the body corporate shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
Clause 84, as it relates to Part V in sub-clause ( 1 ) , and in its general application in sub-clause (2) , states what would otherwise be the law, as I read it, but indicates that it is quite trite experience to attribute to a body corporate any intention, purpose or state of mind that may be prescribed as relevant. Addressing myself to the contribution which Senator Murphy made just prior to the suspension of the sitting for dinner, I remind honourable senators that sub-clause ( 1 ) of clause 46 that we are discussing simply says:
A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-
to eliminate or substantially to damage a competitor in that market or in another market.
I need not read the other 2 paragraphs of that sub-clause. In the debate it was shown that some members of the Committee had not read those words ‘to eliminate or substantially to damage a competitor in that market or in another market’ as involving a definite assertion of purpose in that respect. Senator Murphy replied to an illustration that I gave. I referred to a man who in the natural course of business has built up a market which gives him a natural predominance in a market so that he has an advantage over a new competitor or an old competitor. Senator Murphy said that if that advantage were exercised simply in the course of his business, even though it had the effect of damaging the competitor, that was not a case that was involved here.
Senator Everett told us that on his reading of the clause the provision that a corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power to eliminate or substantially damage a competitor was to be taken to mean that it shall not take advantage of the power for the purpose of eliminating a competitor. The 2 views of Senator Murphy and Senator Everett combine to indicate that they both intend this clause to be read only to prohibit the case where a person is in a position to control the market and he takes advantage of that position for the purpose of eliminating or substantially damaging a competitor. If the word ‘wilfully’- which has been suggested by Senator Greenwood’s amendment to see that that is the essential basis of what is being prohibited under the clause- is not acceptable, the arguments of both Senator Murphy and Senator Everett show quite clearly that some words are needed to be incorporated in the new paragraphs to show that it is only when the direct, specific or dominant purpose, intention or conscious wilfulness of a person is the use of power to damage a competitor that that is the offence. Surely the Committee can be offered language, if ‘wilfully’ is not accepted, to make it clear that it is only in the case where a person in the market who is in the position substantially to control the market uses his position for the purpose of eliminating or substantially damaging a competitor. Surely we can be offered words that will clearly express the matter and eliminate the need for additional argument.
– My question to the Attorney-General (Senator Murphy) also deals with clause 46. I think that for the purpose of my question I should read that clause, although Senator Wright read part of it. It deals with monopolisation and it reads as follows:
1 ) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-
Can the Attorney-General say whether this clause will give full protection to wine makers who have been supplying the retail trade with their own product on a wholesale basis and who now seek to enter the retail market in their own right as well as desiring to continue supplying other trade outlets on a wholesale basis? My reason for seeking clarification here is that my attention has been drawn to threats levelled against a South Australian wine maker that if the wine maker proceeds with an application to the New South Wales Licensing Court for a retail licence the trade will refuse to market his product through its own retail outlets irrespective of whether or not his application is successful.
– The answer is that the threat to which the person or the corporation has been subjected would be caught under this Bill. It is certainly in restraint of trade. I think it can be said safely that there is a remedy under this Bill although there does not appear to be a remedy under the existing legislation. So that ought to be of some comfort to those who have made the representations to Senator McLaren. AlthoughI would very much like to move on from this clause, perhaps I should refer to some statements made by Mr Justice Isaacs in the famous case heard in 1911 of the King and the AttorneyGeneral of the Commonwealth v. Associated Northern Collieries, commonly known as the coal vend case. It was concerned with monopolisation. This judgment echoes and answers what has been put by Senator Wright.
– The judgment was overruled, was it not?
-Of course, but not on this point.
– It was not necessary to deal with that point. It was overruled on another.
-Mr Justice Isaacs deals with the legislation and says:
But the legislation is not aimed at the share or proportion of trade which any person whether individual or corporation may acquire in the ordinary course of business. If by superiority of service or commodity, by lower prices more desirable terms or any of the arts and inducements known to active rivalry, always consistent with healthy competition, and free from force or fraud, a trader attracts to himself the whole of the trade in any particular direction he does not offend against the law of monopoly. The field of opportunity is open to all; he has fairly used it and has succeeded. He has succeeded, not because he has silenced but because he has outstripped his competitors, and because the public find it to their advantage to voluntarily accept his service in preference to that of others they might have; and should he abuse his opportunity by asking unduly high prices, or restricting facilities or otherwise, the field is as open as ever for competitors to offer and for the public to accept. At all events, up to that point, he has neither done or intended any harm to the community. But if not content with serving the public to the best of his ability, and letting consequences take care of themselves, he so acts as to purposely concentrate in himself the existing means of public satisfaction in such a way and to such an extent as in the circumstances to prevent or destroy all reasonably effective competition, he does, within the meaning of the statute, monopolise or attempt to monopolise.
Competition itself connotes attraction of trade, and so long as it remains legitimate the law, as I read it, does not reprove it, simply because it attains its necessary object.
When however a trader foresakes his quality of competitor, and becomes an engrosser, when he sets himself to stifle or strike down effective competition which stands as a commercial protection between himself and the community at large, and so substantially to gather into his own hands the power of dictating the terms upon which the public needs may be satisfied he offends against the enactment. Nor is the offence less that 2 or even 20 traders combine to effect this object.
We contend that the clause is an important one. It does not condemn monopolisation as such. It says that where the monopoly position is taken advantage of to do such things as eliminate or substantially damage a competitor, prevent the entry of persons into the market or deter or prevent the person from engaging in competitive behaviour, and so on, a contravention occurs. The Government asks that this clause not be made virtually unworkable by an amendment which requires one to establish in addition to those factors some wilfulness on the part of such a monopoly corporation.
– I do not wish to become legalistic in this matter, but briefly I do wish to rejoin to what Senator Wright has said with regard to 2 matters which he described as elementary. Of course, section 78 excludes criminal proceedings as such in relation to contraventions of Part IV. But clause 76 provides that both persons and corporations who contravene a provision of Part IV are liable to pay to Australia a pecuniary penalty which may be as high as $250,000. Clause 77 merely establishes the procedure whereby action can be taken in order to recover that penalty. Proceedings may be taken by the Attorney-General or by the Commission. So clause 77 establishes a very special right so far as contraventions of clause 46 are concerned. Without wishing to argue the matter at any greater length or to cite authorities, I simply say that it is grotesque to contemplate that, if the word ‘wilfully’ were inserted in clause 46 as a separate and definite element, it would be sufficient to establish that wilfulness on a mere balance of probabilities when proceedings were being taken to recover a pecuniary penalty.
With respect to the second point that Senator Wright raised, it seemed to me that he saw in clause 84 some comfort for his argument against the arguments put from this side of the chamberthat is, that it would be extremely difficult, if a requirement of wilfulness were imported into clause 46, to establish that against a corporation. My rejoinder to him is simply this: Sub-clause ( 1 ) of clause 84 has nothing whatsoever to do with the matter we are discussing because it relates only to Part V.
-I pointed that out.
– I realise that the honourable senator pointed it out after dinner, not before. Sub-clause (2) goes very little along the way to meeting our argument because it is simply an agency provision. Does anyone imagine that the conduct that will lead to proceedings for contravention of clause 46 will not be basically as a result of decisions taken at the board table where directors will vote on the action to be taken and those directors will have different ideas in their respective minds? I simply wish to set the record straight on 2 matters which were described by Senator Wright as elementary.
– I desire to comment on 2 points. I refer, firstly, to the answer that the Attorney-General (Senator Murphy) gave to the question asked by Senator McLaren. I do not know whether Senator McLaren was speaking about a hypothetical situation or whether he had in mind a situation this is likely to occur. As I understood him, he was talking about a wine producer who might want to go into the wholesale or retail market, and whether such a company would be able to do so. It seems to me that if a wine producer goes into the business of retailing he stands in a position of dominance or superiority in relation to the other retailers. He is in that position of superiority because he does not have to pay the wholesaler’s costs. He can market directly to the public and do. it very cheaply compared with the other retailers.
I think that a very real question is involved and that it has not readily been answered by the Attorney-General. To give him his due, I do not think he can fairly answer the question because ultimately it is for a court to determine. I would think that if that wine producer is in business in a big way it may be said that he substantially controls a market. Maybe it is for the heavy reds, maybe it is for all reds, maybe it is for all wines. Who knows? That wine producer could well be said to be in a position substantially to control the market. If that wine producer, as a result of selling his wine more cheaply than the retailers who are already in the market, substantially damages or conceivably eliminates one of his retail competitors, can it not be said that he has taken advantage of his position of power to achieve that result?
I do not think that the wine producer intended to eliminate anybody, because he is a decent fellow. He did not want to harm his competitor; he did not want to put his competitor out of the market. However, he is engaged in the business of selling his wines in a competitive economy and the cheaper he can sell and the more he can sell the better it is, and the consumer and the economy derive benefit from that. But under this particular clause of this Bill he is at risk of being accused of monopolisation simply because, to use the language of the Bill which the AttorneyGeneral has put before us, ‘a corporation that is in a position substantially to control a market for goods or services shall not take advantage ofthe power in relation to that market that it has by virtue of being in that position to eliminate or substantially to damage a competitor in that market or in another market’.
What the Opposition is trying to get is a position where one can ask: Is what is wrong when a company deliberately intends to damage a competitor or eliminate him, or is it to be wrong simply when it happens as a consequence, as a matter of result from the activity that is undertaken? The Government and Senator Murphy, as I understand them, feel that the second position is the appropriate position. If it happens it is bad and it is to be penalised and a company that does it is liable to a $250,000 penalty. We in the Opposition are saying that is unfair. If a person does it deliberately let him take the consequences because it ought to be considered wrong, but if it just happens he should not be penalised. That is not the sort of law this Parliament ought to be passing. We have moved the amendment to try to resolve that situation. I regret that the Attorney-General will not accept the amendment.
– I rise on a point of clarification. I think Senator Greenwood has deliberately- there is no need in Committee- tried to distort the question which I posed to the Attorney-General (Senator Murphy). He said that it was a hypothetical question. I tell Senator Greenwood that it is not a hypothetical question. With his knowledge of the law he would well know that to seek a retail outlet in the liquor trade one has to apply to the court in every licensing district. The company that I had in mind was not seeking that, it was seeking one in only the Sydney metropolitan area. It had no intention of applying to the licensing court in every district in New South Wales, which would be a mammoth job. But the company is under threat because it is seeking only one retail outlet. In the question that I posed I said that the company had been threatened that even if it makes the application to the licensing court it faces the possibility that the trade will not handle its products through any of the retail outlets which the liquor trade has at present in every town, in every country district in New South Wales. That is what I was referring to when I posed my question.
That the word proposed to be inserted (Senator Greenwood’s amendment) be inserted.
The Committee divided. (The Chairman- Senator J. J. Webster)
– I move:
The Opposition has drawn attention to the problem which the clause creates because the concept of monopolisation is not clearly defined. What is a monopoly? When does monopolisation occur? The clause is uncertain in its ambit. The language is not as clear as I am sure people who want to obey the law would like to see it because it is not easy for the law abiding company or the law abiding citizen to know precisely what it is he is prohibited from doing and, therefore, what it is that he is permitted to do. Maybe this problem is absolutely incapable of determination because of the way in which the Government wants to approach this question of trade practices. We certainly see the difficulties but feel that as far as we are able to do so we should endeavour to clarify and give some guidelines to those people who want to know what it is that this particular provision states. I indicated earlier that the prohibitions in the clause are prohibitions which apply to a corporation- I quote what is in the Bill- that is ‘in a position substantially to control a market for goods or services ‘. What is a corporation that is in a position substantially to control a market for goods or services? It may be, as the existing legislation to which we were committed says, a company which holds one-third of the market. Maybe in our day that was much too rigid a test.
- Senator, would you allow me to interrupt for a moment to assist? I would like to indicate that the Government sees no difficulty in this. It is not an exclusive test. The amendment seeks to include some matters. We considered such a provision but thought that it was not necessary. But if the Opposition thinks that the amendment will help it may shorten the argument to indicate the Government’s view.
– We are indebted to the Attorney-General (Senator Murphy). He has cut me short and I will take only another minute whereas previously I would have taken another six. I am grateful for what the Attorney-General has said. We welcome the Attorney-General’s statement, but it evidences what I said at the outset. We in the Opposition are concerned to improve this Bill as much as we can and when we have the Attorney-General saying that the Government is prepared to accept our amendment, I am happy to acknowledge it. But I state simply that the short point the Opposition is trying to establish is that the definition of a corporation which is in a position substantially to control a market is vague. Such a corporation is not easy to define. The Opposition’s amendment states: (2a) For the purposes of this section, a reference to a corporation being in a position substantially to control a market for goods or services includes a reference to a corporation which, by reason of its share of the market, or of its share of the market combined with availability of technical knowledge, raw materials or capital, has the power to determine the prices, or control the production or distribution, of a substantial part ofthe goods or services in that market. ‘.
It is not perfect by any means but it helps and that is our purpose.
– Is not the question of ability to control a question of fact?
– It is a question of fact.
– Well, why do you want all the verbiage in?
-Because the person who first of all has to determine what you call the question of fact is the corporation which wants to obey the law. It has to make that decision and it will make it flanked by lawyers who will charge enormous fees which will be added to costs and be ultimately reflected in prices. But the company makes that decision of fact. However it may be the wrong decision because ultimately the Commission or the Attorney-General or some other citizen may take a different view and haul this corporation before one of the courts and ultimately it becomes matter for the judges. The legal profession, I know, has a warm spot for Senator Murphy because when conveyancing and other matters are diminishing in the amount of remuneration they provide for the profession, Senator Murphy is filling the gap. He is giving them Commonwealth legislation replete with legal problems and questions. I know that they are looking to that as the new arena. I acknowledge what Senator Murphy has said, that he will accept this amendment. I have explained why we have moved it and we thank Senator Murphy for his acceptance of it.
Amendment agreed to.
– I shall move an amendment which is merely consequential upon the amendment which the Committee made to clause 2. Copies have been circulated. I move:
– I wonder if the Attorney-General (Senator Murphy) will explain the amendment. As I said, we are coming to grips with these proposals which were given to us when this Committee stage debate started. I understand that this amendment is consequential to the amendment already accepted to clause 2. However, on the face of it it does not seem to be directly related to clause 2.
– In clause 46 (3) (a) as it stands there is a reference to the period of 4 months relating to the date fixed under subsection 2 (3). By the decision taken earlier today we took those price fixing agreements out of the operation ofthe time lag of 4 months. Therefore we have to modify clause 46 in order to carry that through in this sub-clause. It is as simple as that, a consequential proposal. As I indicated, if Senator Greenwood wishes to study it at length, since this is consequential to what was done to amend clause 2,I offered then that if he wanted to bring it back for further consideration I would be happy to facilitate a recommittal of it. I assure the Committee that the Parliamentary Counsel drafted this and said it is merely consequential. I think that this debate will not finish this evening, therefore if at any stage the Opposition wants to bring this clause back to the Committee with the other amendments, we will do that.
Amendment agreed to.
Clause, as amended, agreed to.
– The Opposition will move an amendment to clause 47, copies of which have been circulated. Clause 47 states that ‘a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing’. A number of sub-clauses indicate what qualifications may be allowed to the practice of exclusive dealing and also what constitutes the practice of exclusive dealing. But we believe that there is an appropriate amendment which ought to be moved simply because it is a provision which has been recognised- I think it is in clause 45- that in the case of related companies, that is if one company owns another company, the prohibition on the practice of exclusive dealing shall not operate between those companies.
I gather that the question of relationship is determined by the Companies Ordinance. I know that the Attorney-General and his officers are aware of the amendment because a similar amendment was also moved in the House of Representatives and it was to be examined. I hope that the Senate will accept it.
– The purpose of this amendment is to treat bodies that are related to each other as one for the purpose of the exclusive dealing provisions. This is already provided for in relation to contracts in restraint of trade under clause 45. It was not so provided in the Bill because the view was taken that exclusive dealing is a vertical practice by which a relatively powerful supplier imposes restrictive conditions on a relatively weak producer. The view has been taken that bodies which are related to each other would not need to resort to arrangements of the kind mentioned in this clause. It is felt that it would suffice for the supplying company to conform to a unilateral policy and that a deeming provision that the related companies were one is unnecessary. On a similar approach no such provisions are contained in the existing retail price maintenance provisions.
The Opposition has pressed for the inclusion of such a provision. When it was considered at first blush it seemed that no harm would result from the inclusion of such a provision. However, on closer consideration it has appeared that the provision would not be appropriate for subclauses (3) and (4). Those sub-clauses provide for restrictions to be compulsorily imposed upon third parties. To include a provision as proposed by the Opposition would enable a strong supplier to force a purchaser to deal exclusively with a subsidiary of the supplier because the supplier and the subsidiary would be treated as one person. Therefore the Government must oppose the amendment in the form in which it has been proposed.
We might have the situation that is commonly occurring in the banking industry where a bank operates a travel department. Allegations have been made- some of them have been established satisfactorily- that some banks say to a person who is going overseas that he will not get credit and perhaps need not look to the bank in the future for an overdraft if he does not do his travel business through the bank’s travel agency. There we have a situation in which a body which has a public licence- I am talking about a banking li cence, to use a convenient term- is really using the licence virtually to force people to do other kinds of business with the bank. If one were to apply the Opposition’s amendment right through the clause it would mean that this kind of conduct could be continued if the bank were simply to say instead: ‘If you do not do it, not with our travel department but with our travel company, which is a related company’. In that case we would have the same kind of conduct, which ought not to be permitted. The Government would be prepared to agree to the amendment if it were altered so as to exclude conduct covered by sub-clauses (3) and (4). That could easily be done by inserting after the word ‘conduct’ in Senator Greenwood’s amendment the words ‘other than conduct of a kind referred to in sub-sections (3) and (4)’. If that modification of the amendment is acceptable to Senator Greenwood, the Government would not oppose it. In other words, the amendment would then read:
– It is very difficult to appreciate the full impact of the suggestion made by the Attorney-General. Maybe if I indicate the initial feeling I have he might respond and out of that there could be some consideration as to whether what he suggests is reasonable and therefore acceptable. It does appear that if we have a practice of exclusive dealing, if one company has goods or services which it is proposing to offer and it requires that those goods or services should be available, it can generally impose, subject to this clause, whatever terms or conditions it desires. It is dealing with a purchaser and ordinarily freedom of contract ought to govern the relationships. It seems that if the supplying company has a subsidiary which is a wholly-owned subsidiary or a related corporation it ought to stand in precisely the same position as the company which is the parent company, and that applies to all the provisions of clause 47. Why is it- this is the question I pose to which I hope I will get some response- in regard to some provisions of clause 47 and not in regard to others that the AttorneyGeneral wants the relationship to be valid and in other cases not to be valid. That seems to me to be the problem. I would be grateful if the Attorney-General would indicate the answer because our purpose in moving the amendment and- this was put to us by various interested bodies- was that it seemed reasonable for the 2 companies to be equated and regarded as one.
– I must confess to some uneasiness in regard to the example that was given by the AttorneyGeneral. Let me give another example in the banking system. If a person goes to the Commonwealth Bank, for example, and applies for a housing loan the bank will put a requisite on that application that the applicant should have had at least $1,000 or perhaps $1,500 in the bank during the previous 12 months or the loan will not be granted. The position taken by the bank is clear. It says that it can afford to lend only to those who save with the bank. The bank argues that it does not believe it to be reasonable that a person who may save with a housing society at an interest rate of 9% per cent and who has practically no savings deposits in the bank should ask for and expect to get a loan of some $14,000. My understanding from what the Attorney-General has said is that this action by the bank would be a restraint under the legislation.
-Let me go a little further and give the example of a person who goes to a hire purchase firm and applies for a personal loan. A condition of that personal loan is that the applicant shall take out an insurance policy with a subsidiary at a rate of interest higher than that which he would be required to pay elsewhere for the same type of loan. It seems to me that that would be restraint under this legislation.
-Then what is the essential difference? Why would the limitation be imposed on the application to the bank and not on the one to the hire purchase company?
– The answer is that the proposed sub-section deals with other goods or services. The case mentioned by Senator Georges in regard to the insurance arrangement concerns other goods or services. The first case he raised did not involve other goods or services; it was the same kind of service.
Let me return to what Senator Greenwood asked about. As I understand it, the reason why he has proposed his amendment is that those who suggested it said: ‘If a company is dealing with its subsidiary, surely they ought to be treated as one’. I think that is probably so, as between them, and in fact they do not need to require anything. Sub-clause (3) or sub-clause (4) just would not apply. A company does not require that its subsidiary do things. They are, for this purpose, virtually one. But it is a different proposition when third parties are involved. Senator Georges raised the instance of 2 companies which are related but one of which requires that, as a condition of supplying goods or services, the consumer acquire something else from the subsidiary or related company. I think Senator Greenwood could see the vice in that. If we do not take that kind of conduct out of the scope of what Senator Greenwood is seeking to do, we will find people driving a horse and cart through the provisions of this clause.
-Why are sub-clauses (3) and (4) different from sub-clause (2)? It seems to me that either the proposition has a validity for the whole of clause 47 or it has no validity. I understood that, at least initially, the Attorney-General (Senator Murphy) felt it had validity for the whole of clause 47. But, if it has no validity for sub-clauses (3) and (4) because one of the conditions which may be imposed is that one will deal exclusively with another person, why is it that that does not cover also sub-clause (2), which apparently applies an exclusiveness not with regard to the subsidiary corporation but with regard to some other person so that the party with whom one is dealing is not to buy from somebody else or is only partly to buy from somebody else? It seems to me that it is difficult to appreciate why there is a difference between the impact of sub-clause (2) and that of subclauses (3) and (4).
– The answer is that, if a supplier is dealing with a distributor and they are related, we cannot see much problem arising under sub-clause (2). Under sub-clauses (3) and (4) third parties are injected into the situation and they become the meat in the sandwich, between the company and the related company. I think what Senator Greenwood is coming around to is what the Government came around to, namely, that really we should not have such a situation. I repeat what I said: At first blush the amendment did not seem to do much harm, but if it is applied to sub-clauses (3) and (4) positive harm can be done. We cannot see that there would be really much damage if it were not applied to sub-clauses (3) and (4), but it is quite clear that if it were applied to the whole clause it would be damaging. Senator Greenwood may think it preferable to abandon the proposal rather than to proceed with it. His amendment certainly would be a damaging provision to insert in relation to sub-clauses (3) and (4). I think that is unanswerable. I have heard no endeavour to answer it.
Another suggestion has been made that may clarify the position still further. Since the principles are reasonably clear- I do not think we want to have a reference to related companies such that a corporation could use it in the way referred to in sub-clauses (3) and (4)- may I suggest that consideration of clause 47 be deferred and brought up a little later? Perhaps a motion could be moved that consideration ofthe clause be postponed until a later hour this evening.
– I certainly state on behalf of the Opposition that we would agree to that course being followed. One of the motivating factors in putting up this proposition was that the same type of exception was contained in the clause relating to price arrangements. It was that if a contract, arrangement or understanding was entered into by 2 related companies and not as between independent companies it would have been an agreement in restraint of trade, that was exempted from the whole arrangement. It was difficult to understand why in the case of an exclusive dealing arrangement the same proposition did not apply. I know that we have not adverted to that in the course of the debate but it is one of the relevant considerations. If that position could be borne in mind also in the course of the consideration which the Attorney-General and his officers will be giving to the matter, I think that the Opposition would concur in the postponement of the consideration of the clause.
Motion (by Senator Murphy) agreed to:
That further consideration of clause 47 be postponed until a later hour of the day.
Clause 48 agreed to.
( 1 ) A corporation shall not, in trade or commerce, directly or indirectly discriminate between purchasers of goods of like grade and quality in relation to-
Sub-section (1) does not apply in relation to a discrimination if-
– The Opposition also seeks to move an amendment to clause 49, which introduces a concept of price discrimination. One could say that to make the concept of price discrimination unlawful in the way in which the BUI does is to bring in not only a completely new concept with which everyone engaged in commerce in this country now would have to live but also it is to introduce one of the most difficult concepts with which American trade practices law has ever had to deal. The Robinson-Patman amendments were introduced in the late 1930s in the United States of America. If any part of the American trade practices law has been the subject of court decisions in which the clarity which was expected has never been forthcoming, it has been these Robinson-Patman amendments. I do not think that the legislation which the Government has brought before us in any way eases that difficulty which the Americans have experienced. We in the Opposition have had many submissions made to us from people who are fearful of how these provisions will operate. The Opposition has 2 amendments to this clause. Both are only small amendments but we hope that they will be acceptable to the Senate because we think that they wil improve the operation of the legislation.
I deal now only with the first amendment. It relates to clause 49 ( 1 ), which states:
A corporation shall not, in trade or commerce, directly or indirectly discriminate between purchasers of goods of like grade and quality in relation to-
a ) the prices charged for the goods;
b ) any discounts, allowances, rebates or credits given in relation to the supply of the goods;
the provision of services or facilities in respect of the goods; or
the making of payments for services or facilities provided in respect of the goods, if the discrimination is of such magnitude or is of such a recurring or systematic character that it is likely to have the effect of substantially lessening competition in a market for goods, being a market in which the corporation supplies, or those persons supply, goods.
At one extreme there is an obvious case where that sort of legislation ought to apply. That is the case in which a company entices or induces a producer or manufacturer of goods to build up such a market because the orders are there and thus there is an occasion for increased production. When such an action would make that manufacturer so dependent upon the person to whom he is selling that he is completely in the grip of that purchaser obviously that is an area that needs to be remedied. I think this legislation goes a long way towards resolving that situation. I have not any doubt about that situation, but it is uncertain as to how much further it goes, because there ought to be on the part of a purchaser of goods and a supplier of goods an ability to work out what is a reasonable bargain between them. If there is a purchaser who wants to go to a supplier to bargain on the basis that he can get goods more cheaply because he wants to sell them more cheaply than other sellers, then he ought not to be prohibited from doing that just because he is in business on a big scale and so might be alleged to have control of the market or be assumed to be in control of the market and thereby be inhibited from making the sort of bargain by means of which he can give better service and cheaper service to consumers who depend on him. This is the constant problem which this sort of legislation is producing. It is the problem which we on the Opposition side have seen and which we will insist on pointing out so long as the Bill is before this chamber. It seems that if you are going to have a situation where there is doubt as to whether or not a company is offending against these provisions, at least make the provisions apply against the person only when he offends the provisions knowingly.
– It is all right for Senator Poyser to interject. He would have a situation where it would be an offence if there were intent to avoid the provisions of this legislation or if there were no intent involved. What would happen if we came down with a heavy penalty of $250,000. 1 can imagine the shrieks and screams that would come from Senator Poyser if it were ever suggested that a union might be subjected to a penalty of $250,000 if it breached an award even though it did not intend to do so. I would think I might be shrieking and screaming with him. But we do not hear shrieks coming from Senator Poyser when one of the corporations in a city capital inadvertently happens to breach the provisions of the law. All I ask is that this provision be looked at on the basis that it introduces a concept which we believe is valuable. We propose that in sub-clause ( 1 ) the words ‘directly or indirectly’ be left out and that in their place there be substituted the word ‘knowingly’.
– You would water it down.
– I am interested in Senator Poyser ‘s approach. He is one of the few members of the Labor Party prepared to come into the chamber and support the AttorneyGeneral on this trade practices legislation. I just wonder whether the Attorney-General is altogether enthusiastic about the support he is getting from Senator Poyser. If it came from Senator James McClelland I am sure the Attorney-General would welcome it, but Senator James McClelland has been singularly quiet on this matter. But Senator Poyser comes in and simply says ‘Ah! ‘ as though when you introduce a concept that a person should only be liable for offences or for conduct in which he knowingly engages that is in some way watering it down. I do not think it is. I think it is a concept which has a general and proper application in all law, that a person should only be responsible and subject to penalties for those activities which he engages in knowingly.
– That is implicit in the Bill.
– No, it is not implicit in the Bill, if I may reply to Senator James McClelland, because the words ‘directly or indirectly’ appear in the Bill. The words ‘directly or indirectly’ indicate something less than knowingly is requisite.
– That is the way the courts would interpret it.
– I wish I had the honourable senator’s confidence that the courts would interpret it that way.
– You know the doctrine of mens rea as well as anybody does.
– You cannot have the doctrine of mens rea- I say this with all respect to the honourable senator- when you have a concept of directly or indirectly as part of the ingredients of the offence. What we propose is that the words ‘directly or indirectly’ be left out and that the word ‘knowingly’ be put in their place. Then it would mean that a corporation shall not be liable unless, in any trade or commerce, it knowingly discriminates between purchasers of goods of like grade and quality. In those circumstances we think it introduces not only a safeguard which will at least protect the innocent companies but it will, at the same time, ensure that there will not be such an inhibition of company activity that persons with whom we are really concerned, the consumers and purchasers of goods, are going to find in so many ways that their supplies are not as good as they would like them to be but the prices are a little higher because people are a little cautious about what they can do and what they cannot do. We should not so inhibit business activity that the persons for whom business activity is primarily carried onthat is the persons who purchase the goods or services- are likely to be the ones to be deprived. 1 move:
In sub-clause ( I ) omit ‘directly or indirectly’, substitute knowingly’.
– Although Senator Greenwood has expressed some criticism of the RobinsonPatman Act, there have been significant drafting improvements and several changes of substance made in line with the Neal report of 1968. Kirner, the former chairman of the Federal
Trade Commission and a noted text writer has said that while much criticised, ‘if we did not have a Robinson-Patman Act it would be necessary to invent one’. The provision aims to prevent unscrupulous suppliers from attempting to gain an unfair advantage over their competitors by discriminating among buyers and to prevent unscrupulous buyers from using their economic power to exact discriminatory prices from suppliers to the disadvantage of less powerful buyers. Senator Greenwood has laid stress on the use of the words ‘directly or indirectly’ in giving reasons for inserting in their place ‘knowingly’. I do not think that he is justified in his attacks upon the clause. The Government thinks it would be a mistake to insert the word ‘knowingly’. When one looks at the clause as a whole, one finds that it deals with discrimination of such magnitude or of such recurring or systematic character that it is likely to have the effect of substantially lessening competition in a market for goods. It is difficult to see that these laws are carried out and the proposal of the Opposition is one which would only make it more difficult if, on top of what has to be proved here, it also has to be established that something has been done knowingly by the corporation. As to the proposal that the words ‘directly or indirectly’ be deleted, although there may be some advantage in leaving those words in the sub-clause, in some ways the indirect kind of discrimination is dealt with in parts of the clause. We have considered that matter and I would be prepared to accept the first part of Senator Greenwood’s amendment because I do not think it will do any great damage. It takes away the foundation for his argument about inserting the word ‘knowingly’. The response of the Government to this would be that we will not oppose the proposal to delete the words ‘directly or indirectly’ but we will oppose the insertion of the word ‘knowingly’. I would think that would go a long way, if not all the way, to meeting Senator Greenwood’s arguments because he did place considerable stress upon the existence of the phrase ‘directly or indirectly’ in his opening remarks.
– I think the Attorney-General (Senator Murphy) is being more than kind in responding as he has. I would much prefer myself that he had not responded in that fashion but had left the Bill to be finalised as it was drawn. Some extremely adept representations have been made about this Bill by some well-qualified people. They have been fulfilling a brief on behalf of very big retailers in Australia. I do not know whom Senator Greenwood speaks for; I voiced that opinion earlier today.
- Mr Chairman, I take a point of order. I again object to the accusation coming from Senator Hall that members of the Opposition speak for other people. I have said in this chamber and I say it again that I am my own man in this place, and Senator Hall would hate it to be thought that he was speaking for someone else. I ask him to give the credit to other people in this place, including members of the Opposition, that they speak for themselves. He would object if the allegation were made against him, and I do not see why he should have the liberty to make the allegation against other people.
-Mr Chairman, unless directed otherwise I stand by what I said. I do not know whom Senator Greenwood speaks for.
– I take a point of order, Mr Chairman. The honourable senator ought to be asked to withdraw the implication which, contrary to standing order 418, imputes the motive that I am speaking on behalf of someone else by his use of those words. He knows this point because it has been raised in this chamber before. The honourable senator comes here with a reputation, with a strong voice and with a cause to represent, and we acknowledge that. But I object to the fact that he comes and makes these representations and accusations with absolutely no foundation for them. I am not the spokesman of anybody in this place except myself and my own sense of what I am here to represent and do, and I suggest that it is a most infamous allegation to make this constant representation that we are other people’s spokesmen.
-Mr Chairman, I have no intention of withdrawing that remark.
The CHAIRMAN (Senator WebsterOrder! Standing order 4 1 8 states:
No Senator shall use offensive words against either House of Parliament of any Member of such House . . . and all imputations of improper motives and all personal reflections on Members shall be considered highly disorderly.
We have the situation in which Senator Greenwood has suggested that the words that have been used are a personal reflection. Senator Hall, I would ask you to consider whether you might recouch the remarks that you have used and perhaps not impute to a honourable senator the motive that he is perhaps reflecting someone else ‘s opinion in this place.
-Mr Chairman, I take it I can speak in explanation.
– Yes, you can.
– I said that I do not know whom Senator Greenwood speaks for. I do not know also what then impels the honourable senator to stand up in such outrage. I just do not know that point. In explanation, I find it ludicrous that Senator Greenwood says that he speaks for no one but himself here. That to me, from a man who says that he represents his State in a States’ House, is a most peculiar explanation. Perhaps it explains some of the peculiar votes and decisions that he has made in this place. I tell the honourable senator: I have no intention of withdrawing my remark because he puts some of his own outraged interpretations on what I said. He can take it further if he likes under whatever standing order he likes.
– I raised a point of order, Mr Chairman. I submit, Mr Chairman, that I am entitled to a ruling. If we are to have rulings in this chamber that Senator Hall can impute improper motives to an honourable senator, then I will leave it that way, but I ask for a ruling. Let us know where we stand.
- Mr Chairman, I do not think Senator Hall should be allowed to take his defence on his own. It is obvious that there was no improper imputation. He indicated that he did not know for whom Senator Greenwood spoke. But even if Senator Greenwood spoke for someone and that person was identified, there is nothing improper about that. Surely Senator Greenwood has the right to come here -
– It has been constantly said all day.
– What is wrong with that?
– Because it is untrue.
– Perhaps no one approached Senator Greenwood, but if someone did approach him to place a case before the Senate and if he believed in that case, what is improper about that? That is all that Senator Hall has said to Senator Greenwood. Yet Senator Greenwood has got up in an outrage. He has forced Senator Hall into the position where he has to challenge the ruling of the Chair- or it appears as if he might have to challenge the ruling of the Chair. He has placed him m a completely invidious position. That is not as it ought to be. I think that his outrage should be allowed to simmer and that he ought to forget the situation.
– I think that the Senate will treat this matter reasonably. My understanding of the words that Senator Hall used was that he was unaware of whom Senator Greenwood spoke for. His words were similar to that; I do not have them in writing but he questioned Senator Greenwood as to whom he spoke for. I think that Senator Greenwood has the right to ask that the words be withdrawn. If Senator Hall would do that it would be convenient. Senator Hall has indicated that he does not wish to withdraw the words. As has been stated previously, the word offensive’ means offensive in some personal reflection. A man who is in public life and is a member of Parliament takes upon himself the risk of being criticised in a political way. Senator Hall, in his reflection, questioned for whom Senator Greenwood spoke. I rule that that is not offensive in this instance.
-Thank you, Mr Chairman. I will continue. I speak, in my view, on behalf of representations that have been made to me which have countered representations earlier along the lines of the Opposition’s amendment. I have been able to consider, as I believe most honourable senators have, the implications of the various representations by comparing them and coming to a decision. Of course, one has to go back to the basis of the representations behind the amendments. Certainly the basis of the representations behind the Opposition’s amendment, as it has been put to me personally, has been big retailing organisations. The obvious intent of this amendment is to make the clause pretty well unworkable- certainly to make it extremely difficult- in replacing the words ‘directly or indirectly’ by ‘knowingly’. I imagine that Senator Greenwood has enough legal knowledge to know how much more difficult it would make the operation of this clause to make it stick. For that reason I must oppose it.
I must say that I am disappointed in the Attorney-General for giving in to the more explicit explanation of the prohibition. Certainly the interests that represent quite a large section of manufacturing industry want this clause in its entirety. That has been conveyed to me. In surveying the retailing scene one finds several ways of obtaining discounts in the present situation. There are volume discounts and, as was mentioned earlier in the second reading debate, there is something which can be called a muscle discount, when a retailing organisation simply says: ‘We want an additional discount of a very large percentage or we will remove your goods from our organisation.’ These people are able to look after themselves. I am a supporter of their enterprises, and I vote for this clause. One should know that these organisations have the best corporate lawyers in Australia to look after their affairs. They do not need any weaknesses to appear in this legislation. If the AttorneyGeneral is accepting the amendment, he is accepting it, but I certainly hope that he does not go any further than that.
-I would like to add support to what Senator Hall has said and to appeal to the Attorney-General (Senator Murphy) not to weaken this clause in any way. It is a current practice for powerful retailers to impose upon the manufacturer not only for discounts, but also for extra services. One large retailer will impose upon the manufacturer not only to reduce price for quantity but also to lay down the condition that the goods shall be delivered to individual stores. Later on, if the retailer is not satisfied with that, he will impose a condition also that they will be delivered in a specific way, packaged in a certain size. He imposes his muscle, as has already been described so well by Senator Hall, upon the manufacturer, but the disadvantage is to the smaller retailer because the manufacturer then has to make up the leeway by charging more to the smaller retailer.
The smaller retailer is being forced to the wall. He is being forced gradually to dispose of staff and to endeavour to carry on his enterprise on his own. He then finds himself in the position that he has to extend the number of hours of participation in his business and gradually accept an economic slavery which is imposed upon him by this unfair practice on the part of retailers. Many manufacturers have been foolish enough to allow themselves to be entrapped by the large retailer. In some cases they have not been wise enough to diversify their markets. Some of them have been foolish enough to fall for the trap of a specific retailer saying: ‘I will take the whole of your goods. I will even lend you the money to update your machinery.’ The retailer traps him into a debt as well. This clause is to protect the distribution of goods through the smaller outlets. It will be to the disadvantage of the great retailers and to the advantage of the smaller retailers. I would have thought that everyone here would support the clause as it stands. I appeal to the Attorney-General not to give in on this.
– Careful consideration has been given to the clause. I think that Senator Georges and Senator Hall should feel some comfortable satisfaction that I would not agree readily to anything that would weaken the Bill. What I have said, I have said with deliberation. I think that the omission of the words ‘directly or indirectly’ will not weaken the clause.
The insertion of the word ‘knowingly ‘ would certainly be aimed at undermining the workability of the clause and that is why it is opposed. I am quite content that the clause should remain as it is with the omission of the words ‘directly or indirectly’.
– The Opposition acknowledges what the Attorney-General (Senator Murphy) has said and recognises that in what he has said he has acceded to the points which were made. We would like to see the word ‘knowingly’ inserted in the clause, but in the light of what the Attorney-General has said we will not persist with that part of our amendment which seeks to insert the word ‘knowingly’. The AttorneyGeneral has accepted the first part of our amendment that the words ‘directly or indirectly ‘ be left out.
I wish to say in reply to Senator Steele Hall that to the best of my recollectionI have not personally seen any retailers in connection with this Bill or received any representations from them. He may feel that I responded to his accusations somewhat intemperately -
– You did.
-Maybe I did. But the point I make is simply this: I am attempting, as best I can, on behalf of my Party and my colleagues to put forward these amendments. The accusations made by Senator Hall are not acceptable. He said before we ever reached the Committee stages that he felt that all the amendments which the Opposition was putting forward were disruptive. He said that he had not even seen them but he was against them. To take that sort of attitude at the outset indicates the sort of approach we can expect in the Committee stages.
– I personally am not clear on the intention as to what should remain in the legislation. Does it mean, Mr Chairman, that clause 49 ( 1 ) will now read:
A corporation shall not, in trade or commerce, discriminate between purchasers . . .
Is that the intention?
– Yes. I think it will suit the Commitee if the proposer of the amendment, Senator Greenwood, indicates that he proposes to leave out certain words. I understand that he proposes to leave out of his amendment the words ‘substitute “knowingly” ‘. If that course is acceptable to him I shall put the question to the Committee in that way.
– Mr Chairman, I am happy to follow the course you proposed. Our amendment is: ‘Leave out “directly or indirectly”, substitute “knowingly” ‘. I seek leave to withdraw the words ‘substitute “knowingly” ‘.
– Is leave granted? There being no objection, leave is granted.
Amendment, as amended by leave, agreed to.
– The Opposition has another amendment to clause 49. Sub-clause (2) states:
Sub-section ( 1 ) -
That is the general prohibition on price discrimination- does not apply in relation to a discrimination if-
On behalf of the Opposition, I move:
This will mean that the sub-clause will not apply if the discrimination alleged ‘is constituted by the doing of an act in good faith to meet a price or benefit reasonably believed to be offered by a competitor of the supplier’.
I shall explain the way in which we see the need for this amendment. A supplier may be approached by a customer and asked whether he will reduce his price of $1 per product item. The customer might say: ‘I am a good customer and I am entitled to some consideration from you.’ The supplier might reasonably respond by saying: ‘Yes, but I have this price discrimination provision and I cannot give you any discount or allowance’. The customer might then say: ‘Yes, but I have been offered a price of 98c by your competitor X. Can you better that?’ What does the supplier do? He may well say: ‘All right, I will give you a price of 95c’. Is the supplier engaging in the offence of price discrimination under clause 49? Obviously he is offering a discrimination because everyone else is charged $ 1 for the product item but he is offering this customer a price of 95c.
This supplier is excused from any offence if he can fit himself within the provision to which I am referring; namely, sub-clause ( 1)- the offence of price discrimination- does not apply in relation to a discrimination if ‘the discrimination is constituted by the doing of an act in good faith to meet a price or benefit offered by a competitor of the supplier’. Does the supplier about whom I am speaking have any knowledge of what his competitor offered the customer? The only knowledge he has is what he has been told.
It seems to me that the Government is placing an enormous burden and obligation upon the supplier to have to face the consequences of an offence against this clause if he believes in good faith- I know the words ‘in good faith’ appear in the clause- what he is told by his customer. Suppose that his customer is a liar. Suppose that his customer is out to get the very best deal he can and he has not been offered by somebody else a price of 98c, that he simply tells the person from whom he is seeking the best price he can get that he has been offered 98c by somebody else. Is the supplier excused? This is a legal question that I suppose a judge some day in some way will have to answer. I personally, when I look at this provision, believe that the supplier would not be protected by this exempting provision. I think in those circumstances he should be protected. That is why those words ‘reasonably believed to be’ have been moved as an amendment to be included in the provision. I would hope that the force of the situation I have advanced has an appeal or an understanding for the AttorneyGeneral and he might accept the amendment. In any event, I would be grateful for his response.
-My question is not directly related to the amendment that has been moved but as we are dealing with sub-clause (2) I wonder whether the AttorneyGeneral (Senator Murphy) could interpret for me whether sub-clause (2) (a), reading in part the cost or likely cost of manufacture, distribution, sale or delivery’, would cover such things as marketing, promotion or service facilities that may be provided in the sale of goods? Clause 49 (2) (a) of the original Bill has been amended. I wonder whether the word ‘distribution’ would cover such things as marketing, promotion or service facilities? Did the Government have that in mind when making the amendment?
-On the matter put by Senator Greenwood, it seems to me that if we inserted the words ‘reasonably believed to be offered by a competitor’ we would open up the gates by which all sorts of tricks could enter. We would provide that the person would escape the net in this clause although there was discrimination.
Where discrimination has been carried out the person could answer. ‘Well, I did it in good faith to meet a price or a benefit which was never actually offered but was reasonably believed to be offered.’ In other words, there is no basis in fact which would justify the discrimination. The Opposition proposes to introduce the defence that a person reasonably believed that somebody had done something that he had never done at all.
– It would be opening a Pandora’s box.
-Senator James McClelland suggests that it would be a Pandora’s box. We know what will happen when this legislation comes into law, as I hope it will come into law. Immediately those who are practising the discrimination, those who are carrying out the kinds of conduct which are aimed at by this Bill, will have their batteries of lawyers looking into how they can escape the provisions of the legislation. There will be advices on evidence. There will be all sorts of things, and the smart operators would look at this provision and say: ‘Oh, we can do what we like as long as we say we reasonably believed that somebody else was offering some price or benefit although in fact he was not offering it at all’. This would really make a farce of the clause and Senator Greenwood knows that. He has enough experience of the law to know what would happen.
– There are always the honest cases which you are penalising in this way.
– You say that we are penalising the honest cases. If there were some such cases, no doubt they would be met by the provisions dealing with penalties and so on. If a person can establish his case to the satisfaction of the court- and he has read the clause- he will not come to any great harm.
– He is guilty but we do not impose any penalty. Is that the best he can hope for?
-I think that is so. There are practices operating in commerce which are clearly to the public detriment. One is price discrimination. We either endeavour to eliminate it in terms of this clause or we make some token effort. If we include the words in the amendment, they will just be a let-out. I can imagine what Senator Withers would do if he were asked to advise on the matter. If somebody asked the way around this clause, the lawyers would go, as if drawn by a magnet, to the words ‘reasonably believed to be offered’. A person does not even have to be meeting something that is offered. It is sufficient if there is a reasonable belief that it is offered. The Government is not prepared to accept the amendment. We think that the clause should stand.
– I suggest that it will not be as simple as the AttorneyGeneral (Senator Murphy) said for someone to make use of the words in the amendment to escape the provisions in this clause. Sub-section (3) states:
In any proceeding for a contravention or sub-section ( I ), the onus of establishing that that sub-section does not apply in relation to a discrimination by reason of sub-section (2) is on the party asserting that sub-section ( 1 ) does not so apply.
So the onus will be on the corporation to bring itself within the provisions of (2) (b) and to prove, if the words in the amendment are added, that it reasonably believed there was a price or benefit to be offered by a competitor. It will not be sufficient merely to say that it believed that some competitor was offering something. There would have to be a reasonable belief. There would have to be some evidence of it. I suggest that the amendment is no Pandora’s box. It is reasonable that this way out should be left to a person. He may not know that a competitor has offered it, but he may have very good reason to believe that. If he has that proof, if he has some satisfactory reason and if he can discharge the onus, the words which Senator Greenwood suggests should be added to the clause are desirable and fair, bearing in mind particularly the high penalty which people will pay if convicted of price discrimination. Therefore, I suggest that it is not a simple matter. The amendment is a fair and reasonable one.
– I understand that this provision is similar to and is drawn from a provision which is contained in the American Act. If that is so- that is my understanding- I ask: Why have these words been excluded?
– I will check the precise words, but earlier I indicated to the Committee that although the clause is generally in line with the clause in the Robinson Patman Act there have been some significant drafting improvements and some changes of substance. Senator Greenwood has a copy of the Robinson Patman Act.
– I have only what was said in the House of Representatives.
– It really does not touch upon the argument as to whether it ought to be there or not. We rely upon the argument which we are putting that it is undesirable to have it there. I am reading from ‘Anti-Trust Laws of the United States of America’ by A. D. Neale and neither I nor my advisers can find the reference which Senator Greenwood has said was in the Robinson Patman Act. That Act contains the proviso:
That nothing herein contained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor or the services or facilities furnished by a competitor
I cannot find in this report the reference to reasonably believed to be offered ‘ which Senator Greenwood has referred to. Since I do not have the original document with me -
– I am just referring to the House of Representatives debate and what was said there. Likewise there was no reference to a clause then.
-The Government considers that the amendment would be an undue weakening of the clause and the Government would resist it. On the point raised by Senator Guilfoyle, the information I have is that a clause 49. (2) (a) defence permits the supplier to allow a price concession to a customer who, say, collects all his goods at one place and undertakes his own distribution to outlets. So in that sense the matters to which the honourable senator referred may be covered. I am sorry if that does not answer her question as fully as she would want.
– I was referring to market promotion or service facilities which would be provided by the purchaser to the consumer and wondered whether the word ‘distribution’ would comprehend those factors.
-No, they would not be covered, but distribution in the sense that I described it would be.
That the words proposed to be inserted (Senator Greenwood’s amendment) be inserted.
The Committee divided. (The Chairman- Senator J. J. Webster)
Question so resolved in the negative.
Clause, as amended, agreed to.
– The Opposition wishes to move an amendment to clause 50 which deals with the broad subject of mergers. It is a comprehensive prohibition of absolutely enormous import. I shall read sub-clause ( 1 ) of clause 50 to indicate what it involves:
A corporation shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a body corporate where the acquisition is likely to have the effect of substantially lessening competition in a market for goods or services.
I ask the Committee to consider just what the -
– May I intervene again, Mr Chairman?
-If it is to indicate that one of the Opposition’s amendments is to be accepted, I would be quite happy to allow Senator Murphy to intervene, Mr Chairman.
– It will save time if I intervene to say that although the Government does not think that the Opposition’s amendment will affect the provisions of the Bill as it now stands the Government does not think that it will do any harm to accept it although it is really not necessary. We would probably agree with everything that Senator Greenwood would say. So in order to save time, we might as well accept the proposal now. It is only a question of putting in something that is unnecessary. It will mean a little more printing and so on, but we see no problem about itsinclusion. That is already the intent of the Bill. We are sure that it will be construed in that way. We are agreeable to the amendment. We think it is unnecessary to discuss it.
– I thank the Attorney-General for what he has indicated. I had not even moved the amendment. I move:
We are quite happy to have the amendment accepted by the Government because it will simply mean that the ordinary purchase by a company of the assets of another company is not going to be prohibited. But I am not going to be deterred by the fact that the Government is prepared to accept the amendment from stating that this is a Bill which has been looked at. We have been told that the Opposition has filibustered and that it has done this and that in order to prevent the Bill from being accepted. This is an amendment which we hoped to have accepted. Its acceptance shows that there are areas in which amendments can profitably and usefully be put forward. This is one of them. The Opposition acknowledges and thanks the Attorney-General for his acceptance of the amendment.
– I feel that I must say that I indicated that the Government thought the amendment would add nothing to the Bill but its acceptance would do no harm because, properly construed, that is the effect of the Bill. I am saying that if the Opposition will be happier if the amendment is accepted by the Government the amendment will be accepted, but I am not in any way conceding that it will be an improvement. It will be not be an improvement. That position is already covered in the Bill as it stands. All I am doing is saying: ‘Let us save some time’. I am not saying that it will do any harm. If it will make the Opposition happy to have it included in the Bill the Government will accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
-Mr Chairman, before the Committee deals with either of the amendments that have been circulated I wish to direct attention to a matter in relation to clause SI. Sub-clause ( 1 ) reads:
In determining whether a contravention of a provision of this Pan has been committeed, regard shall not be had-
in the case of acts or things done in a State- except as provided by the regulations, to any act or thing that is, or is of a kind, specifically authorised or approved by, or by regulations under, an Act passed by the Parliament of that State . . .
Honourable senators will notice that by the use of the words ‘except as provided by the regulations’ the provisions of our statute may be negatived by regulations. That is a principle that we have never accepted in this place and unless there is some specific and proper reason for it I would suggest that those words be omitted.
– I wish to draw the attention of the Committee to clause 171(2) which I believe is pertinent. It states:
The regulations may provide that all or any of the provisions of this Act shall not apply to or in relation to conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products.
This is of particular concern to the Australian Country Party. I seek the assurance and reassurance of the Attorney-General on the point because this proposed new sub-section could apply to things such as marketing boards and cooperatives.
-That is only a later clause. It does not come up yet.
– I merely point out that there is this clause which is concerned with regulations.
– The point raised by Senator Sheil does not arise. In answer to Senator Wright may I say that normally one would say that if something is authorised especially by a State one would not want it to be affected by this kind of enactment. But suppose a State went directly against the intendment of the legislation and decided to use an exempting provision in order to defeat the spirit of this enactment. In these circumstances there should be some means of dealing with that situation. That is why the provision ‘except as provided by the regulations’ is in the Bill.
– I ask the Committee to notice the enormity of the proposition just put by the Attorney-General that it is possible for a State to pass legislation specifically saying that a matter should not be had regard to, and that it could do so for the purpose of defeating the Commonwealth legislation. It is imperative that the Australian Parliament should deal with such a situation. It is not proper in such circumstances that Federal regulations negative the State statute. We would know what to do if a State parliament put through a sunversionary provision which was designed to defeat the purpose of the Act. I suggest to the AttorneyGeneral that that would be eminently a case where the Federal Parliament would take in hand this Bill and insert an amendment to deal with the situation. I would have nothing more to say if an amendment was put through by Act of Parliament. But the very thought and conception of giving to the regulation making power underneath this Parliament a right to negative a State statute that has been put through by a State parliament is not acceptable to me. I think it is eminently required that we should deal with a case like that by statute and not by regulation.
-Senator Wright has just put forward fine sentiments. But really when we come to examine them we find that they relate to a provision for an exemption in regard to what is done by the States. I think that the degree of exemption leans a long way towards the States. Though the exemption is narrowed an exception is indicated. That is an exception by regulation.
After all, a regulation is a delegated operation of this Parliament. As we know, any regulation which is made is subject to the supervision of this Parliament. It is disallowable by either House. Sometimes it may be necessary to move quickly. If a State in this situation were undermining what was intended by the Federal Act, the situation ought to be able to be met and it may need to be met quickly. As I have said, the regulation making powers are subject to the supervision of both Houses of this Parliament The Parliament’s power to disallow a regulation would be readily used if in some case it was thought that a regulation had been made inappropriately.
We submit that there is nothing wrong with this provision. It is said that a regulation would cut down a State Act. That is certainly no novelty. Ever since regulations have been made, the effect of the making of a regulation under an Act of this Parliament- that is the delegated legislative power of this Parliament- has operated in that way. Senator Wright, with his extraordinary memory, will conjure up in a moment the many cases which have come before the High Court of Australia and in which it has been held that a State Act fell because it was in conflict with a Federal regulation. There is nothing new about this. It is not as if we are venturing into the unknown or into unchartered waters. Here is something which is being done and which I think ought to be welcomed by the States. I think it would be welcomed by the States.
We are saying, in effect, that if a State authorises something to be done it will not be in contravention of this enactment. That is going a very long way towards acting graciously, if I may put it that way- I do not know whether that is the best term to use when referring to legislationtowards the States; and we are putting in the legislation a narrowing or limiting provision to the effect that in an appropriate case the capacity of the States simply to thwart the legislation would be met by the introduction of a regulation which would be made under this Act and which would be subject to the supervision of both Houses of this Parliament.
– I rise on that point only to say that the suave advocacy of the Attorney-General (Senator Murphy), when he knows that there is probably a majority to support him, is completely unconvincing. It is not to be denied that when a State statute is inconsistent with a Federal statute, or regulations made under it, the State statute has to yield. But that is not the case here, and it is a distortion of my argument to put it in that context. Here is the case, deliberately elicited from the AttorneyGeneral on his own statement, where a State statute is passed by a responsible Parliamentthat is the only type of legislation that is referred to in the paragraph- and specifically says that something may be done. We say in our legislation that in that case regard shall not be had to that. But the Attorney-General, by the inclusion of the words ‘except as provided by regulations’, takes power for an officer at his desk to put through the Executive Council and into the ‘Australian Government Gazette’ subordinate legislation to override a specific statute of the State. But let me not stay on that subject.
I want to refer to another part of clause 51 before one of the circulated amendments is reached. This is of far greater importance. Clause 51 (2) (a) states that in determining whether a contravention of a provision of this part, other than section 48, has been committed, regard shall not be had to certain things. The things that are referred to in this part are contracts and arrangements in restraint of trade, monopolisation, exclusive dealing, price discrimination and mergers. Honourable senators will notice that the words that I have read state that in determining whether any of those matters have been contravened, regard shall not be had to certain things. When the sub-clause states ‘other than section 48’ it is referring to other than resale price maintenance. That is referred to in the subclause but I deliberately omitted to mention it. But in determining whether restraint of trade, exclusive dealing, monopolisation or mergers have occurred, regard shall not be had to any act done in relation to working conditions of employees or to:
Any act done by employees or by an organisation of employees not being an act done in the course of the carrying on of a business of the employer of those employees or of a business of that organisation;
If we forget the last few words which commence not being’ we have the provision that we are expected to enact. It is that in determining whether one of these contraventions has been committed regard shall not be had to any act done in relation to the working conditions of employees by employees or an organisation of employees. The words ‘an organisation of employees’ are the words used in relation to a trade union. Mr Chairman, you will notice that the clause discriminates between employees and employers. An act done by an organisation of employees means any strike or disruption of work. As I pointed out this morning in my second reading speech, that sort of operation was within the prohibition of the Sherman Act from which this measure has been taken. We have been told tonight that the number of man-hours lost in the first 3 months of this year exceeded the total number of man-hours lost in the whole of last year and exceeds the number of man-hours lost in any year since 1931. Honourable senators can see that I am speaking on a subject which is of enormous importance to the present Government of this country. I want to speak in terms which I have taken almost literally from an American text which I think is of high standing and which was written within the last few years. It says:
The defects of labor legislation notwithstanding, the excesses perpetrated behind the shield of union power have become at last too widely known, its grips on the total processes ofthe American economy -
I say, add the Australian economy-
This applies to Australia also-
The text goes on to refer to the prolonged New York city newspaper strike. Honourable senators will remember that it went on for months. It is pointed out that nobody in the United States of America can censor a newspaper. It was also pointed out that freedom of the Press was guaranteed by the Congress but the union boss could paralyse the whole industry. After making that reference he went on to say:
But there is a way of avoiding industrial war on a large scale and the heavy damage it inflicts on the nation. The status quo of union power must be changed by moving it out of the anarchic no-man’s land where present legislation leaves it. Essentially, there are only two directions in which public policy can move if the status quo is to be changed: . . .
He went on to point out that one of the directions is total control, whereby the State fixes conditions and all things appertaining to the terms of employment. But that idea is to be rejected.
The other situation relates to the exemption which union monopolies have enjoyed from competitive discipline in America since the 1932 Norris-La Guardia Act. He points out that this exemption is inequitable because it requires public policy to favour the welfare of one group at the expense of the general welfare- which is precisely what this sub-clause to which I am addressing myself does- and the economic burden it imposes on the whole nation is, as has been shown, exceedingly heavy. As I quoted this morning from a statement made by Sir Arthur Bryant, it is the chief factor which leads to galloping inflation.
The authority I have already quoted went on to say:
Placing union monopolies under the general restraints of the antitrust laws will end the inequity and reduce the economic damage; . . .
That is precisely what I am advocating by drawing attention to this specific exclusion in this subsection. Instead of excluding these matters we should be placing industrial organisations precisely on the same basis as commercial organisations for the purpose of application of all these antitrust practices that we are prohibiting under this Bill. I go on to quote the authority who said: and it will transfer the adjudication of labor-management disputes which threaten substantial injury to the public from arbitrary administrative agencies to the courts.
That is a provision relative to the American situation. The quote continues:
It will do this, moreover, in a way which cannot be misconstrued … as a punitive measure aimed uniquely at unions, for business enterprises are also submitted to these laws. The consensus of the working men and women with respect to the fundamental institutions of a free economy will be secured, for strong and vigorous unions will continue to exist. But they will function at long last within the context of a government of laws rather than of men, within a context of competition rather than monopoly. The alternatives which Tace the nation if the indicated action is not taken are grim and they are disturbingly nigh: further internal economic decay and international decline on the one hand, or government wage and price controls on the other. If competition is extinguished by default and therewith the free economy itself, no one will gain but all will suffer.
I bring that to the attention of the Committee to show that that is sound sense to which we have a responsibility to give consideration and to bring it into force at once. On the contrary, we are expected to enact here in sub-clause (2) (a) of clause 51 a provision that for the purpose of determining the abuses condemned by this Act no regard is to be paid to strike action and disruptive action by union monopolies or organisations of employees in any circumstances. Whether I can get any support, including a seconder for my motion or not I move:
– The Government will vote against this amendment if it is persisted with. The reason for that is that we have had in this country for a very long time a set of laws in the Conciliation and Arbitration Act. Since 1904 it has existed in various forms. That legislation provides a code for dealing with the restrictive practices to which the honourable senator has referred. For some 70 years we have had laws about restrictive trade practices of trade unions and of organisations of employers. It would be very foolish to put in this legislation provisions which dealt in some different way with the restrictive practices of trade unions and of employer organisations and of the members of those organisations which are dealt with in some detail in the Conciliation and Arbitration Act. That is why one would not even endeavour to touch upon this topic. I will not be drawn into a discussion on what causes inflation and the other matters raised by Senator Wright because I would like to proceed with the Bill. But even Senator Wright should appreciate how foolish it would be to endeavour to deal with this kind of restrictive practicesand they are restrictive practices, whether of employers or employees organisations- other than in the context of the legislation which deals specifically with that kind of practice, that is the Conciliation and Arbitration Act. The wisdom of this was recognised by Senator Wright’s own Party when in the existing legislation, the Restrictive Trade Practices Act, in section 35 (5) dealing with examinable agreements- because that was the approach which that legislation has- it was stated:
In determining whether an agreement is an examinable agreement, regard shall not be had-
-It refers to provision of an agreement not to an act done.
– This was an examinable -
– It did not say you would not have regard to strikes.
-This is the provision dealing with agreements and it states that no regard shall be had to those matters. In the United States, as Senator Wright has indicated, in the Norris-La Guardia Acts the same approach was taken. It is very unwise, in fact one might say it is very foolish, to start to tamper, in laws dealing with business practices, with industrial laws. If Senator Wright wants to have stronger laws dealing with any kind of activities of trade unions then the course is open to him- it was taken during the period that his government was in power- to amend the Conciliation and Arbitration Act to go directly to the set of laws that deals with that subject matter. A government could modify those laws in order to carry out its particular philosophy or its prejudices or whatever it might be. Do not let us start to tangle those matters into a law dealing with business practices. What is contained in this clause is very sensibly worded. If Senator Wright examines the paragraph that he is seeking to delete he will see that it contains this specific reference: not being an act done in the course of the carrying on of a business of the employer of those employees or of a business of that organisation.
If a trade union gets into some kind of a business activity, it is subject in its business activity, in the same way as any other corporation, to the provisions of this legislation.
– It would have to be registered as a company.
– It would have to be a trading or foreign corporation within the meaning of the Constitution.
-When one is dealing with business practices, surely it is wise to keep to what one is dealing with. I suggest that Senator Wright ought not to try to alter the industrial laws of this country by some endeavour to delete a paragraph in the midst of the restrictive trade practices laws which are really dealing with another subject. If he wants to do something in order to carry out his views, whether they be on strikes, lock-outs or other things, I think that some Bills in the conciliation and arbitration area are coming before the Senate shortly, and no doubt we will hear a great deal from him at that time. But please do not endeavour to mess up a law which is dealing with a subject matter which is long overdue to be dealt with.
– I second Senator Wright’s amendment.
– I rise only to say that I am quite aware of the 2 fields of operation- the anti-trust law with which we are dealing now and the conciliation and arbitration industrial law with which we will deal partially tomorrow. But it is my view, as I quoted from the text to which I referred earlier, that the anti-trust laws should apply to industrial organisations disrupting business in the same way as they do to commercial organisations. When we come to the industrial laws, instead of their being left in a state of impotence I hope that the Government will accept its responsibility to bring them into a position of effectiveness so as to prevent the calamity that I suggest is challenging this nation.
– I move:
The purpose of the amendment is to endeavour to provide an easy means of meeting what we believe are some of the problems which are inherent in this type of legislation and for which we believe there should be a ready means of resolution. I must say I think that this is an unusual type of amendment for an Opposition to move. But at the same time we sense that it will help the administration of the legislation and that the Government will accept it. It provides an extra power and additional facility to government. This is why I say it is an unusual type of amendment for an Opposition to move. The reason for it is this: Sub-clause (2) of clause51 says:
In determining whether a contravention of a provision of this Part other than section 48 has been committed, regard shall not be had -
Then there are listed some 7 paragraphs. We have just had a discussion about the matters contained in paragraph (a). The attempt of the draftsman is to incorporate in those 7 paragraphs the matters which it is felt ought not to be taken into account in deciding, for example, whether there has been a contract, arrangement or understanding entered into in restraint of trade or whether there has been exclusive dealing or price discrimination and so on. The effort of the draftsman is comprehensive.
I am sure that every effort has been made to make sure that the matters which ought to be excused have been stated. But we believe that there will be a host of matters which practice will ensure will have to be brought before the AttorneyGeneral or the Commission with a view to having not an authorisation or a clearance but some change in the legislation- something which ought to be exculpatory. If the representations are persuasive the Attorney-General will be faced with the need to introduce legislation. Expert as this Government is in introducing legislation- and a lot of legislation- sometimes it does not find it easy to get the legislation dealt with as quickly or as expeditiously as it would like. Therefore a problem would exist. We suggest by this amendment that by regulation the Government can prescribe the acts, things or provisions to which regard will not be had in determining whether there has been a breach of these provisions. There is a parliamentary control which is capable of being exercised, because all regulations are capable of being disallowed. We suggest this amendment because we believe experience will show that there will be a need to take action of the character which I have mentioned, and it is a ready means of doing it. We invite the Government to accept the amendment.
– There is a danger in such a paragraph. The danger is that all sorts of pressures can be applied in order to exempt by regulation various kinds of conduct. There is a general belief that the laws against restrictive practices are good but almost everyone who is engaged in them says: ‘They should not apply to me. ‘ The pressures would be very great if we had exemptions from these provisions. There is no doubt that there are powerful pressure groups in this community. This Government would be able to resist the pressure but a Liberal-Country Party government would not. In the far distant day when there may be a change of government one easy way to destroy the effectiveness of this legislation would be to use such a clause. I suppose a Senate majority of the opposite persuasion to the Government might be able to use the disallowance provision but there are sometimes ways of introducing regulations which may effectively escape the disallowance.
Senator Greenwood puts forward the suggestion that we may have overlooked something. It may appear that something has been overlooked. One thought has occurred to me in relation to this matter. It may be that some such provision could be justified if it were to operate for a short period. Let us suppose that this legislation is passed and a problem emerges during the teething stages of the enactment. It may be that such a regulation could be useful in such an event. But I do not think it would be good to allow for something which really went to the heart of the whole matter and stayed there indefinitely. I think that would be unsatisfactory. One could easily see that very great pressures would be applied. The Government resists the proposal as it stands. But, if I might, I will give consideration overnight as to whether there ought to be some such provision with a limitation of time on it. I do not know whether we could deal with it on this basis. I do not wish to leave incomplete the consideration of too many of these clauses, but may I suggest that if that matter is left overnight I will give consideration to it. I move:
– I think that what the Attorney-General (Senator Murphy) has said is a proposition which the Opposition would welcome. We will leave the matter for him to consider. We regret that he would not accept the proposition, but I see the reasons he puts. We derive some small consolation from the fact that he suggests that the Opposition might be back in power and we might not be able to resist the pressures as strongly as he and his Government.
– I said in the far distant future.
– What great consolation we take, I suppose, depends on how distant the prospect is.
– You will probably be retired by then.
– I see the way in which the Attorney-General puts it. The Opposition will not ask for a division on this matter in the light of what he has said, but we would appreciate the consideration which he has said he will give to it overnight.
Question resolved in the affirmative.
Clause 52. (Misleading or deceptive conduct.)
-As has been indicated already in the second reading debate on this Bill, the Opposition desires to have the whole of Part V removed completely. It is opposed to the inclusion of these clauses in the Bill and will vote against the Part. I do not propose to repeat the arguments which Senator
Guilfoyle and I and other speakers have expressed with regard to this Part of the Bill in the last 2 days. But I do wish to say one or two things about this matter.
Of course, many representations have been made by many people and interests in respect of the whole of the Bill. I think it can probably fairly be said that manufacturing concerns and other economic interests of that sort do not seem to have concentrated very much on the contents of Part V. There have been representations and there are, of course, feelings. Perhaps they have been somewhat induced by some misunderstandingsI will not go any further than that- on the part of some ofthe consumer groups that the deletion of this Part will in fact lead to some less effective form of consumer protection. It is the belief of the Opposition that in fact the deletion of this Part is more likely to lead to more effective long term consumer protection.
Part V proposes that various acts will be prohibited. It has already been pointed out that the States already have quite comprehensive and detailed legislation in respect of a number of these matters mentioned in Part V. It also has been pointed out that the effect of this Part, if adopted, might well be that much of the State legislation would be wiped out and all its effectiveness lost. Certainly that could well apply in respect of the dealings which individuals have with corporations.
I do not propose to go into that constitutional argument, except to say that it is not appreciated by many people outside this chamber that in fact that may well be the result. There may well be the result that Commonwealth legislation, phrased in general terms, will stop the individual- I am dealing with the individual, not so much the State-from enjoying the effective remedies that he has already under State legislation. It has been pointed out that the Commonwealth, under its own legislation- limited, as it is, to the corporations power- is not able to provide the small claims courts and the consumer tribunals which are required and cheap, quick and easy justice which is necessary for individuals whether they are dealing with other individuals or with corporations. If the view we have expressed is correct and constitutionally the State legislation in respect of these tribunals will be wiped out as far as an individual dealing with a corporation is concerned, there will be a great loss to the consumers and to consumer organisations; they will be unable to deal in that area in the future.
Senator Wright pointed out this morning that the implied conditions and warranties contained in Division 2 of this Part are very much a repetitionalthough in different language to some extent- of legislation which appears in most of the goods Acts and other legislation of the States at the present time. The position therefore is that, as has been said time and again, the inclusion of this Part in the legislation at the moment will lead to confusion, constitutional doubt and probably a denial of some rights which consumers have at present. One other thing should be pointed out because I do not think it has been referred to earlier in the debate. In clause 28 of the Bill, which already has been passed by the Committee, the functions ofthe Commission are set out. Clause 28 states:
1 ) In addition to any other functions conferred on the Commission by this Act, the Commission has the following functions-
Other paragraphs in that clause will lead to the collection by the Commission of a great deal of material on the consumer situation. I suggest that no doubt the Attorney-General will give such directions when this legislation comes into operation. No doubt there will be this assessment of the laws and this assessment of the need for Commonwealth legislation. I have no doubt that in some areas there is a need for Commonwealth legislation- for instance, on the standards which are widespread throughout Australia, as well as other areas which are of common knowledge and common importance to the people throughout Australia. But that does not mean that the achievements of the States should be wiped out.
It is for those major reasons that at this stage we of the Opposition believe that Part V should be taken out of this Bill. No doubt it will appear in some other form. It ought to appear after the investigations are carried out by the Commission. It ought to appear after the States have been consulted and it is known how far comprehensive legislation can be agreed on and adopted by the States as well as by the Commonwealth. Then, no doubt, there will be an area in which the Commonwealth can take some useful legislative action. For those reasons we propose to vote against the whole of Part V.
– Are we dealing with the whole of Part V?
– Is it the wish of the Committee to deal with clauses 52 to 75 inclusive? There being no objection, that course will be followed.
Clauses 52 to 75.
-Part V of the Bill is extremely important. It starts with clause 52 in Division 1 -Unfair Practices. Clause 52 states:
A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive.
That is extremely important. Although the words are general they are capable of being applied by the court and because of the generality of the words we have provided in the Bill that there be no penalty for the breach of that clause; that is the general one. But it would be the subject of proceedings to prevent conduct which was misleading or deceptive. That would be by injunction in the courts to prevent that kind of conduct. That is a very important remedy which might assist the public, and where individuals are injured by conduct that is misleading or deceptive they would have available to them action for damages under clause 82 of the Bill.
I turn to the other clauses. Clause 53 deals with false representations. Is it to be said that there should be no federal law to deal with the activities of corporations which offend against the provisions in this clause? Clause 53 states:
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services . . . falsely represent that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model:
Is there any legitimate objection which could be raised to that kind of a provision making it an offence for a corporation to do that?
Sentor Wright- Does the Bill make it an offence?
-Yes. By the Constitution which the honourable senator is fond of referring to, and its virtues, this Parliament is empowered to make laws with respect to financial or trading corporations. And it is dealing with these corporations in the Bill. We are entitled to deal with them. We are expected to deal with them. One of the things that the Government is proposing to do is to prevent them from making false representations. Is this so horrifying to honourable senators opposite that they want to strike it out of the Bill which we propose?
– Is this clause 52 you are talking about?
-I have moved on to clause 53 because the enormity of what is proposed by the honourable senator on behalf of the Opposition is to strike out in their entirety clauses such as those I have mentioned. I have dealt with clause 52. Clause 53 deals with false representation in these terms:
Falsely represent that goods are new; represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; represent that the corporation has a sponsorship, approval or affiliation it does not nave;
I should like to hear from honourable senators opposite why such a provision should be struck out of the federal law. We are empowered to deal with trading corporations. We take the view that if this kind of conduct is engaged in it ought to be an offence and there ought to be penalties and remedies by way of injunction and damages to those who suffer by, in this case, the false representations. The provisions are reasonable. We have not sought treble damages but simply damages for the persons who are affected.
The Opposition says that there is something wrong with a proposal that it should be an offence for such a corporation to make false or misleading statements concerning the existence or effect of any warranty or guarantee or if it were similarly to make false or misleading statements concerning the existence of or amounts of price reductions. What is it in those two clauses that is objectionable to the Opposition? It has been my experience and the experience of my advisers that people in industry and commerce are not opposed to these provisions. I understand that the representatives of the manufacturers who are affected by these provisions- those who stand for the application of proper standards throughout our trade and commerce- do not object to the provisions. Why is the Opposition objecting to them? I put, in a way that is not offensive, the same kind of question which Senator Hall put. On behalf of what interest- I am not suggesting in any corrupt way- or on behalf of whom is it said that there is objection to this consumer protection?
– We say on behalf of the consumers.
-On behalf of the consumers, Senator Greenwood says. As I understand the position, the consumer organisations are in favour of these provisions.
– But we are speaking on behalf of consumers generally.
-Leave aside the argument based on the weight of support for the proposal and turn to the provisions. I read them and I ask: What does the Opposition say is wrong with them? Is there anything wrong with the contents of clauses 53, 53 and 54? Clause 54 states:
A corporation shall not . . . in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them as offered.
Is there something wrong with such provision being incorporated in the law? Does it strike some strain of Liberal philosophy that we should not have such a law which would prohibit such misconduct by corporations? Clause 55 states:
A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
Is that clause contrary to Liberal philosophy? Does the Opposition feel constrained to strike it out of the Bill? Clause 56 states:
A corporation shall not, in trade or commerce, advertise for supply at a special price goods or services that the corporation does not intend to oner for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature ofthe market -
In other words, the bait advertising which is a pernicious practice. Is the prohibition of that practice in some way against Liberal philosophy as it is expounded in this chamber? The other practices are referred to in the Bill. Referral selling, accepting payment without intending to supply as ordered, misleading statements about home-operated businesses, coercion at place of residence and pyramid selling-all are matters of misconduct by corporations. This Parliament is empowered to deal with them. Anyone can see that we have a national economy. It is in everyone’s interest that the laws applicable to trade and commerce are the same throughout the nation. Clause 62 relates to product safety standards. I understand that this provision is welcomed widely. Product information standards provide for the evolution of national standards so that companies, wherever they are operating, will know the standards. We can use our scientific bodies such as the Standards Association of Australia to set up standards not only as to products but also as to the information that is to be disclosed in relation to them. This will be manifestly to the benefit of industry and commerce and will be a step towards efficiency and cutting out the conflicts between the various States and the uncertainties which we have, some of them in the building materials industry and some of them in various other industries. It is a very valuable step in the direction of assisting the consumers as well as commerce and industry. Yet somehow this is offensive to the Liberal philosophy as expounded by honourable senators opposite.
The rest of these provisions are very sensible. They are wise provisions. The Government thinks that there is every reason why these provisions which deal with the trading activities of these corporations ought to be incorporated into federal law. If this is not done now it will be done shortly. One might say that it is irresistible that we will have the evolution of national laws dealing with the trading activities of corporations in this respect. It is virtually common ground that we ought to have trade practices laws dealing with those malpractices by corporations and the argument is irresistible that they should be accompanied by similar national laws in the direction of consumer protection to protect these false and misleading practices by corporations. All the Opposition is doing is trying to obstruct and hold back something that is going to happen and something that is manifestly in the national interest. The Opposition ought to be encouraging the Government, as I am sure industry and commerce would, towards the evolution of these standards which would operate throughout the nation to the benefit of everyone.
– The Opposition wants to make it abundantly clear that it favours the strongest and most effective consumer protection provisions that will benefit consumers which this nation can provide. If one takes the proposals in this Bill as Senator Murphy has outlined them they are unexceptionable if taken in isolation. I do not want to suggest otherwise. There may be here and there ways in which the language of the protection provisions might be improved but overall they could be regarded as unexceptionable. But the real problem we have to face and this is at the heart of the Opposition’s concern is that we have at present throughout Australia 8 separate sets of consumer protection laws. There are consumer protection laws in each of the 6 States and they differ from State to State. There are consumer protection laws in the Australian Capital Territory and consumer protection laws in the Northern Territory. What this Bill does is add a ninth set of laws. The problem is that if the Government adds another set of laws which is purporting to operate right around Australia it is not helping the very person who is designed to be benefited. The consumer will be left in a state of abject confusion. That is the first point. We are adding to laws; we are not reducing the number of laws
The second point is that these provisions which Senator Murphy has outlined and eulogised apply only with respect to corporations. We could have the curious situation where in my State of Victoria a chemist, who cannot be incorporated because of his profession, is selling the many wares which chemists today sell. He would be subject not to this Commonwealth law but to the law of the State of Victoria. But alongside him there could be a supermarket which is conducted by a company or a bookstore which is conducted by a company and that company would be controlled and regulated either by these laws or conceivably by the State laws. I leave that question as to which law operates somewhat open because I think that there are some constitutional problems which one day a company which is challenged will take to the court and the court will have make its decision. But this difference of laws depending on whether the proprietor of a store which sells goods or provides services is a company or an individual trader is a problem which creates difficulties for the consumer. That is a second point which I feel cannot be overlooked.
There is a third point. Senator Murphy has included in this Bill a provision which I know has caused the lawyers some doubts. I do not for one moment doubt that Senator Murphy himself must have some cause to wonder what the High Court would do with it. It is a clause which says that if there is any conflict between State laws and the Commonwealth provisions contained in this Bill, the Commonwealth provisions are to apply. I am not sure whether that provision will stand up because the question of whether it can stand the test of challenge depends on the Constitution and not on what the Act says. Therefore we may find that the consumer is not helped by this legislation even though ultimately, some years hence, if these questions are resolved, that test of irresistibility which the Attorney-General raised might then seem to be well founded. But I do not believe that the test of irresistibility is to be measured in terms of the indefinite future. What we want to do at the moment is to benefit the consumer by the best provisions that we have. I would certainly think that there is everything to commend the establishing of some central body, a consumer affairs bureau, if one wants to give it the somewhat hackneyed title which these bodies have; but one set up by the Commonwealth on which are represented the States and consumer bodies. That bureau would have a two-fold purpose. One is to ensure that all the problems of administering this legislation are aired amongst the various State instrumentalities and, secondly, that the consumer bodies which are having day to day experience of the various efforts which are made by those who want to impose upon the consumers have a place to which they can go and where they can have their complaints sifted and out of which consideration a better system can be provided. If we had a body like that, we would, I think, really be helping the consumer. But I look at this provision. Senator Murphy asks: Why should we be opposed to it? I have said that in terms of the individual provisions no objection is voiced. But we look at what exists in the States. He talks about clause 53 and all the many benefits it contains. I look at each of the States to see what is to be found in regard to false advertising. In New South Wales there is the Consumer Protection Act 1969. Section 23 prohibits false trade descriptions of goods; section 27 prohibits false representations as to Royal Warrant and so on; and section 32 prohibits false and misleading advertisements to promote the sale of goods and services. There is also a Motor Dealers Act 1974 which prohibits certain misrepresentations and misdescriptions in relation to the sale or promotion of sale of secondhand motor vehicles. The Auctioneers and Business Agents Act 1941 is another Act which bears in this same area. There is provision in the State. What Senator Murphy has not said and what the Government has not said- and one would be happy to have it said- is what is the improvement which the Commonwealth Act provides. I look at my own State of Victoria and I find that we have a Consumer Protection Act, originally of 1970. In due course I will read provisions of that Act. It was amended considerably in 1973 by a Consumer Affairs Act and by the establishment of a Consumer Affairs Tribunal. These are the existing State provisions which do provide some protection to the consumer. I ask: How are we helping the consumer by creating a further set of laws? Surely that only adds to confusion. When we develop a Commonwealth code, we can, as Senator Missen said, risk the whole pattern of small claims courts which the States are establishing and which the Commonwealth cannot establish. We are throwing the whole system into jeopardy.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Temporary Chairman do now leave the Chair and report to the Senate.
Question resolved in the affirmative.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
– One of the proudest claims cf the Whitlam Labor Government is the program it has introduced for the support of schools on a basis of need. I am interested in the case of a particular school in New South Wales which I would like to recount to the Senate for a few moments.
– Why do you noi write a letter?
– That has been done and it is fair enough to raise this matter. If we look at the conclusion arrived at in the Karmel Committee’s report of the situation in New South Wales we find that 105 schools were originally given an A classification, which is the classification for the most wealthy schools for which support for recurrent expenditure was to be withdrawn after a given time, and for which recurrent expenditure was at the smallest level while the grants were to continue. Among those schools were many of the very wealthy schools in New South Wales. After appeals were made, 50 schools remained in that category. Among those schools were such schools as Ascham, Cranbrook, Kambala, Kings. Presbyterian Ladies College, Pymble, Sydney Grammar and Sydney Grammar Preparatory- all the wealthy schools in New South Wales. Among the schools that appealed, many of the wealthy schools obtained a lower classification. There is a school- the Rabinovitch Yeshivah College at Bondi-which was classified A and which remained classified A after appeals were made, i went out to examine this school because I thought, when its Principal rang me and asked for help, that it must be a very luxurious establishment, well set up. It is an extremely poor school. If the Government is sincere in its claim that it is operating on a basis of needs this school is a school that deserves and requires recurrent support.
This school was mentioned in the Senate last year by Senator McManus, who drew attention to some of its problems. It is a school which takes people from poor families. Most of the students there come from working class families. It is not a wealthy school. The uniforms of the pupils indicate that. The school is housed in the basement of a synagogue in some old cottages which are undergoing conversion. It is a very small school.
It was classified A only because its pupil-teacher ratio, on the formula adopted, put it into the A classification. There is no doubt that this school is in need of recurrent support and if the Government is sincere it should receive this support. On looking at the list of schools that appealed against their classifications and had their classifications moved down, I was surprised to see that such a school as the Armidale School, which is one of the great public schools, was reclassified from A to C. It is a wealthy school compared to this one. Barker College at Hornsby, which is one of the wealthiest schools in Sydney, was reclassified from B to C. Chevalier College at Bowral was reclassified to F. The New England Girls School, which is a private girls school at Armidale, was reclassified from A to D. Newington College at Stanmore, which is one of the great public schools and one of the schools for the privileged rich, was reclassified from A to B.
It seems totally inappropriate that those schools, which quite clearly are wealthy schools, should be able to get a reclassification and larger support for their recurrent expenditure when another school which is small and struggling is unable to get the same kind of support. I do not object to the needs concept. The Labor Party is in government. It puts out the program and it determines which schools are in need. I am merely putting to the Minister that here is a case of genuine need. If the Government is sincere, I want it to look at ways of giving support to this school. I believe that the formula that has been adopted has not filled the bill. It is not good enough for the Government to say: ‘We have a formula and any school that cannot meet this formula clearly is not in need’. That is not the approach. The Government says that it is looking for genuine need and that it will respond to genuine need. I am telling the Government that the Yeshivah school at Bondi is genuinely in need of recurrent grants and recurrent support. So far it has received no kind of support from the Government. It has received no indication that it will receive any support. All I ask the Government to do is to look into some way of finding a formula to recognise genuine need where it exists and to find some way of helping this school.
– The honourable senator who has just spoken will remember, although he was not a senator at the time, that there was a very long and protracted debate last year on this very subject when we discussed the States Grants (Schools) Bill. The very subject to which the honourable senator has referred came up during the discussions. I think the honourable senator referred to the fact that the then Senator McManus made some comments on this matter during the very long and protracted debate that took place.
One of the first things carried out by the Labor Administration shortly after the Whitlam Government came into office was the establishment of the Interim Committee for the Australian Schools Commission, which became known as the Karmel Commission. Thus, of course, the Karmel Committee was born. That Committee conducted a thorough investigation into the needs of schools throughout Australia generally. After its report was considered, publicly debated and looked at by this Parliament, the Committee recommended that future grants to schools be made not on a per capita basis but on the basis of needs. Of course, in so doing, the Committee established a system of priorities and categories. At paragraph 6.50 of the report the Committee had this to say:
Category A schools already use a volume of resources that well exceeds the 1979 targets: and the Committee believes that government assistance to these schools cannot be justified.
– But it is not true for this school, senator.
– The honourable senator says it is not true for this school. 1 will come to that in a moment. The Committee went on to say:
The Committee feels that the sudden termination of financial aid on six months’ notice could place some schools within Category A in temporary difficulties. Hence the gradual phasing out of assistance over 1974 and 1975 is recommended: this implies that in 1976 schools whose resources use falls in Category A should receive no general recurrent assistance.
Therefore, having regard to the policy of making grants on the basis of needs, the Government in adopting all the other recommendations of the Karmel Committee for a 2 year program costing in all some $694m- and I say with pride that the Labor Government stands on its record of assistance to education and Australian school kids -
– If you say it often enough you will believe it yourself.
– Well, I genuinely believe it and so does every workingclass parent who has kids going to school. In a 2-year program, costing in all $694m, it was decided that category A schools should receive no grants for recurrent expenditure. Subsequent to the Government’s decision the Interim Committee for the Australian Schools Commission published a schedule of non-systematic nongovernment schools which, as the honourable senator has said, included 105 schools which had an enrolment of approximately 58,000 students. The Government, after considering complaints and representations that had been made and that were made to it at the time, decided to receive appeals against classifications. As a result of those appeals being heard by a reconstituted Interim Committee, not the same committee as the original committee, the number of schools in the schedule was reduced from 105 to 50 and the number of students enrolled at those schools was reduced from 58,000 to approximately 33,000.
The honourable senator has referred to the Yeshivah College at Bondi. Whilst I personally have not been to the school, I assure the honourable senator that again I will draw his remarks to the attention of my colleague, the Minister for Education (Mr Beazley). I assure the honourable senator that the Yeshivah College at Bondi was one of the schools that appealed against the original classifications. The reconstituted Interim Committee rejected its appeal.
– That would be on the student-teacher ratio.
-That was one of the criteria.
– You never made the criteria public.
- Senator Webster says that the criteria were never made public. I remember that, as Minister representing the Minister for Education in this chamber, I tabled the reasons for the classifications during an education debate last December.
– They are a complete enigma.
Senator DOUGLAS McCLELLANDSenator Webster says that I did not table them and Senator Wright says that they are a complete enigma. They cannot have it both ways. Either I tabled them and they were a complete enigma or I did not table them. Either Senator Webster is right and Senator Wright is wrong or vice versa.
According to figures supplied, the primary school teacher-pupil ratio at that school is one teacher to 17 students whereas in government primary schools the ratio is one to 27. Surely, on a primary school basis, compared with the ratio in government schools the teacher-student ratio at Yeshivah is a very important criterion. The secondary school figures that were looked at by the reconstituted Interim Committee show that at Yeshivah College there are 3 secondary school students to one teacher compared with 17 students to one teacher in government secondary schools. That was the basis of the criteria on which the reconstituted Interim Committee rejected the appeal by the Yeshivah College. It was an appeal that was made against the decision of one committee to a reconstituted committee. The reconstituted committee looked at the situation and on the basis outlined rejected the appeal.
The honourable senator says that he has been out and inspected the school and that there are difficulties. I accept that the honourable senator has been out to the school; but, on the basis of a comparison of needs on the figures that have been supplied, I must say that on the criteria adopted by the Government the pupil-teacher ratio is something that has to be looked at closely. I will draw the honourable senator’s remarks to the attention of my colleague, the Minister for Education. If it is thought that anything can be done or has to be done, knowing as I do that this Government has the interests of children at heart, we certainly will see that sympathetic consideration is given to the honourable senator’s representations.
Question resolved in the affirmative.
The following answer to a question upon notice was circulated:
Yes. (2)I have no information regarding the alleged attempt by an Aboriginal to cash the abovementioned cheque. After authorising a complete investigation, I have been advised of the following details:
Senate adjourned at 11.15 p.m.
Cite as: Australia, Senate, Debates, 14 August 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19740814_senate_29_s61/>.