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Senate
15 August 1974

29^th Parliament · 1^st Session

PETITIONS
- African Liberation Movements
- Baltic States
- Baltic States
- Baltic States
- Baltic States
- Baltic States
- Australia: Defence Forces, Flag and National Anthem
- Australia: Defence Forces, Flag and National Anthem
- Baltic States
QUESTION
- NOTICES OF MOTION
QUESTION
- MR GEORGI ERMOLENKO
QUESTION
- BALLY POKER MACHINE COMPANY
QUESTION
- PETROLEUM SUBSIDY
QUESTION
- ASSISTANCE AVAILABLE TO ABORIGINALS
QUESTION
- REVIEW OF GOVERNMENT ASSISTANCE FOR VOLUNTARY ORGANISATIONS
QUESTION
- MR HARRY MILLER: NATIONAL FESTIVAL
QUESTION
- OAK INSURANCE COMPANY
QUESTION
- ABORIGINES: FOOD SHORTAGE AT WATTIE CREEK
QUESTION
- UNEMPLOYMENT IN TASMANIA
QUESTION
- HUME HIGHWAY
QUESTION
- EFFECT OF INFLATION ON EDUCATION ALLOWANCES
QUESTION
- WOOL SALES
QUESTION
- TRADE UNION OFFICIALS
QUESTION
- UNITED NATIONS CONVENTION ON GENOCIDE
QUESTION
- REPATRIATION MEDICAL OFFICERS
QUESTION
- TELEPHONE DIRECTORIES: PINK PAGES
QUESTION
- COMMUNITY YOUTH CENTRES
QUESTION
- CIVIL RIGHTS OF INDIVIDUALS
QUESTION
- SUPPORTING FATHERS
QUESTION
- AUSTRALIAN TELEVISION PROGRAMS
QUESTION
- MR GEORGI ERMOLENKO
QUESTION
- BLACK POWER MOVEMENTS
QUESTION
- SALE OF WHEAT TO NEW ZEALAND
QUESTION
- MR GEORGI ERMOLENKO
QUESTION
- BALTIC STATES
QUESTION
- ESCOR INSURANCE
QUESTION
- GEORGI ERMOLENKO
PERSONAL EXPLANATION
QUESTION
- PETROLEUM PRODUCTS SUBSIDY SCHEME
REPORT ON YUENDUMU AND HOOKER CREEK
GROWTH CENTRES
JOINT COMMITTEE ON PRICES
- Household Soaps and Detergents
GOVERNMENT BUSINESS
- Precedence
JOINT COMMITTEE ON FOREIGN AFFAIRS AND DEFENCE
TRADE PRACTICES BILL 1974
CONCILIATION AND ARBITRATION BILL 1974
- Second Reading
CONCILIATION AND ARBITRATION BILL (No. 2) 1974
- Second Reading
PLACING OF BUSINESS
TRADE PRACTICES BILL 1974
- Third Reading
PLACING OF BUSINESS
ROADS GRANTS BILL 1974
- Second Reading
ADJOURNMENT
ANSWERS TO QUESTIONS
- Inflation: Tariff Reductions (Question No. 6)
- Tariff Reductions (Question No. 7)
- Import Prices: Tariff Reduction (Question No. 8)
- Inflation: Tariffs (Question No. 11)
- Telegrams to Local Government Authorities (Question No. 22)
- Motor Vehicles: Safety-related Defects (Question No. 38)
- Phosphate (Question No. 54)
- Cocos (Keeling) Islands: Voting Rights (Question No. 55)
- Senate Elections: Candidates (Question No. 56)
- House of Representatives Elections (Question No. 57)
- Push Button Telephones (Question No. 104)

The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 10.30 a.m., and read prayers.

page 957

PETITIONS

African Liberation Movements

Senator BAUME:
NEW SOUTH WALES

-I present the following petition from 7 citizens of Australia:

To the Honourable the President of the Senate and senators in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:

The undersigned men and women of Australia vigorously protest against your Government’s reported provision of Government funds amounting to $150,000 to African Liberation Movements this year, which amounts to contravention of United Nations Charter and is direct interference in internal affairs of African countries. We are aghast that the Government of Australia should involve itself in furthering unrest and warfare between racial groups on the continent of Africa and direct public funds to this end, and we request that senators take up this matter with the Prime Minister and Minister for Foreign Affairs immediately.

Your petitioners humbly pray that senators in Parliament assembled will ensure that due account is taken of this petition and your petitioners, a’ in duty bound, will ever pray.

Petition received and read.

Baltic States

Senator LAUCKE:
SOUTH AUSTRALIA

-I present the following petition from 46 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:

Whilst the Australian Government is granting freedom and independence to Papua and New Guinea, the once free Baltic States of Estonia, Latvia and Lithuania are occupied by the Soviet Union and their citizens are continuously and brutally deprived of personal, civil and religious freedoms. We humbly beg to draw the attention of the Senate to this fact and ask that the matter be raised in the United Nations by the Australian Government. The annexation and incorporation of the Baltic States by the Soviet Union has not been recognized by any Western democracy, including Australia. We bee the Senate to continue such nonrecognition and to disallow any steps by Australian Government which would amount to recognition of aggression.

And your petitioners, as in duty bound, will ever pray.

Petition received and read.

Baltic States

Senator YOUNG:
SOUTH AUSTRALIA

– I present the following petition from 47 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:

Whilst the Australian Government is granting freedom and independence to Papua and New Guinea, the once free Baltic States of Estonia, Latvia and Lithuania are occupied by the Soviet Union and their citizens are continuously and brutally deprived of personal, civil and religious freedoms. We humbly beg to draw the attention of the Senate to this fact and ask that the matter be raised in the United Nations by the Australian Government. The annexation and incorporation of the Baltic States by the Soviet Union has not been recognized by any Western democracy, including Australia. We beg the Senate to continue such nonrecognition and to disallow any steps by Australian Government which would amount to recognition of aggression.

And your petitioners, as in duty bound, will ever pray.

Petition received.

Senator YOUNG:

– As a petition similarly worded has already been presented by Senator Laucke, I do not propose to move that this petition be read.

Baltic States

Senator JESSOP:
SOUTH AUSTRALIA

– I present the following petition from 48 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:

Whilst the Australian Government is granting freedom and independence to Papua and New Guinea, the once free Baltic States of Estonia, Latvia and Lithuania are occupied by the Soviet Union and their citizens are continuously and brutally deprived of personal, civil and religious freedoms. We humbly beg to draw the attention of the Senate to this fact and ask that the matter be raised in the United Nations by the Australian Government. The annexation and incorporation of the Baltic States by the Soviet Union has not been recognized by any Western democracy, including Australia. We beg the Senate to continue such nonrecognition and to disallow any steps by Australian Government which would amount to recognition of aggression.

And your petitioners, as in duty bound, will ever pray.

Petition received.

Senator JESSOP:

– As petitions similarly worded have already been presented by Senators Laucke and Young, I do not propose to move that this petition be read.

Baltic States

Senator STEELE HALL:
SOUTH AUSTRALIA

– I present the following petition from 385 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 Governments of the United Kingdom, the United States of America, Canada and many European countries have not recognized the unlawful annexation of the Baltic States of Estonia, Latvia and Lithuania by the Soviet Union, it has been announced from Moscow that the Australian Government is now recognizing them as part of the Soviet Union. We wish to point out that according to United Nations charter these States are entitled to independence and their peoples to self-determination and beg that such recognition be disallowed.

And your petitioners, as in duty bound, will ever pray.

Petition received and read.

Baltic States

Senator DAVIDSON:
SOUTH AUSTRALIA

-I present the following petition from 73 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 numbly ask that it be retracted.

And your petitioners, as in duty bound, will ever pray.

Petition received and read.

Australia: Defence Forces, Flag and National Anthem

Senator MAUNSELL:
QUEENSLAND

– I present the following petition from 1,988 citizens of Australia:

To the Honourable the President and Members of the Senate in Parliament assembled: The Petition of the undersigned respectfully sheweth:

That whereas our constitutional parliamentary democracy was clearly developed as a Federation to preserve for all time to the Australian people their cherished right to live as free men and women, enjoying complete liberty of worship, assembly, speech, movement and the communication of knowledge and information.

And whereas our existing Australian Flag and our national anthem. ‘God Save The Queen’, are perpetual reminders of these hard-won freedoms and of the wise British principle of the division of power, so well reflected in our own Australian Constitution with its careful separation of powers as between the Crown and Commonwealth Parliament, the Senate, the State Parliaments, the GovernorGeneral and State Governors, and the Independent Courts of Justice.

And whereas all such rights, liberties, heritage, advancement and prosperity, etc., are of no avail if our Armed Forces are unprepared or incapable of repelling invasion of our shores or withstanding other military threats.

So therefore must all these things be accorded the highest national concern and priority.

Your Petitioners most humbly pray that the Senate, in Parliament assembled, will take the most urgent steps to ensure:

The most rapid, efficient and largest possible expansion of all branches of our Defence Forces, and greatest possible strengthening and extending of defence treaties and security arrangements with our traditional friends and allies,

The right of every Australian citizen to vote at a National Referendum or Senate or Federal Elections for the retention of our present Australian Flag and equally of our national anthem, ‘God Save The Queen’, before any government or other body can attempt to substitute either a new flag or anthem, and a similar voting right for the choice of any official National Song to play on international occasions.

And your Petitioners as in duty bound will ever pray.

Petition received and read.

Australia: Defence Forces, Flag and National Anthem

Senator SCOTT:
NEW SOUTH WALES

-I present the following petition from 49 citizens of Australia:

To the Honourable the President and Members of the Senate in Parliament assembled: The petition of the undersigned respectfully sheweth:

That whereas our constitutional parliamentary democracy was clearly developed as a Federation to preserve for all time to the Australian people their cherished right to live as free men and women, enjoying complete liberty of worship, assembly, speech, movement and the communication of knowledge and information,

And whereas our existing Australian Flag and our national anthem, ‘God Save The Queen,’ are perpetual reminders of these hard-won freedoms and of the wise British principle of the division of power, so well reflected in our own Australian Constitution with its careful separation of powers as between the Crown and Commonwealth Parliament, the Senate, the State parliaments, the GovernorGeneral and State Governors, and the independent Courts of Justice,

And whereas all such rights, liberties, heritage, advancement and prosperity, etc., are of no avail if our armed forces are unprepared or incapable of repelling invasion of our shores or withstanding other military threats,

So therefore must all these things be accorded the highest national concern and priority.

Your petitioners most humbly pray that the Senate, in Parliament assembled, will take the most urgent steps to ensure:

The most rapid, efficient and largest possible expansion of all branches of our defence forces, and greatest possible strengthening and extending of defence treaties and security arrangements with our traditional friends and allies,

The right of every Australian citizen to vote at a national referendum or Senate or Federal elections for the retention of our present Australian Flag and equally of our national anthem, ‘God Save The Queen’, before any government or other body can attempt to substitute either a new flag or anthem, and a similar voting right for the choice of any official National Song to play on international occasions.

And your petitioners in duty bound will ever pray.

Petition received.

Senator SCOTT:

– As a petition similarly worded has already been presented by Senator Maunsell I do not propose that the petition be read.

Baltic States

Senator BAUME:

– I present the following petition from 194 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:

That the Australian Government’s diplomatic action to recognize officially the incorporation of the Baltic States into the Soviet Union has been taken contrary to the Prime Minister’s assurances to Australian citizens of Baltic origin given as recently as the 17th May 1974.

We, the undersigned, therefore humbly petition the Senate to ensure that the above action is rescinded.

And your petitioners, as in duty bound, will ever pray.

Petition received and read.

page 959

QUESTION

NOTICES OF MOTION

Estimates Committees

Senator WITHERS:
Western AustraliaLeader of the Opposition

– I desire to give notice of a motion, the text of which has been circulated. The notice of motion runs to 4 pages and concerns the establishment of the Estimates Committees. It is in the same form as it has been presented in the past, and I ask leave to have it incorporated in Hansard.

The PRESIDENT:

-Is leave granted? There being no objection, leave is granted. (The document read as follows)-

Mr President, I give notice that, on the next day of sitting, I shall move-

That-

1 ) Unless otherwise ordered, the annual Estimates, as contained in the Papers presenting the Particulars of Proposed Expenditure, and the Additional Estimates, as contained in the Papers presenting the Particulars of Proposed Provision for Additional Expenditure, shall on motion be referred for examination and report to seven Committees, to be known as Estimates Committees A, B, C, D, E, F and G, which are appointed by this Resolution.

) Unless otherwise ordered, each Committee shall consist of six Senators, three being members of the Government Party to be nominated by the Leader of the Government in the Senate, and three being Senators who are not members of the Government Party.

Non-Government representation upon the Committees shall be as follows: Opposition (Liberal Party)- Fourteen Senators, two to each Committee, to be nominated by the Leader of the Opposition in the Senate. Australian Country Party- Five Senators, one to each of five Committees, to be nominated by the Leader of the Australian Country Party in the Senate. The Leader of the Liberal Movement, Senator Hall, to one Committee, to be nominated by him. Senator Townley (Independent), to one Committee, to be nominated by him.

The particular Committees to which the nonGovernment Parties and Senator Hall and Senator Townley make nominations shall be determined by agreement between those Parties and Senator Hall and Senator Townley, and, in the absence of agreement duly notified to the President, the question as to the representation on any particular Committee as between those Parties and Senator Hall and Senator Townley shall be determined by the Senate.

Each Committee may proceed to the despatch of business notwithstanding that all members have not been appointed and notwithstanding any vacancy.

Each Committee shall elect a Government member as Chairman.

The Chairman may from time to time appoint another member of the Committee to be DeputyChairman and the member so appointed shall act as Chairman of the Committee at any time when the Chairman is not present at a meeting of the Committee.

In the event of an equality of voting, the Chairman, or the Deputy-Chairman when acting as Chairman, shall have a casting vote.

Three members of a Committee shall constitute a quorum.

A Senator, though not a member of a Committee, may attend and participate in its deliberations, and question witnesses, unless the Committee orders otherwise, but shall not vote.

The Committees shall sit in open session, unless otherwise ordered, may sit during any adjournment or suspension of the Senate, and may adjourn from time to time.

A Committee shall not meet while the Senate is actually sitting, unless by special order of the Senate.

Not more than three Committees shall sit simultaneously.

In considering the Estimates, the Chairman shall, without motion, call on divisions of expenditure in the order decided upon and declare the proposed expenditure open for examination.

The Committees may ask for explanations from Ministers of State in the Senate, or officers, relating to the items of proposed expenditure.

The Resolution referring the Estimates to the Committees may fix a day for the reporting of their proceedings to the Senate, by which day the final Reports of the Committees shall be brought up.

17) The Report of a Committee shall be presented to the Senate by the Chairman and, if considered necessary, may propose the further consideration of any particular items. A reservation by any member of a Committee may be added to the Report.

The Reports from the Committee shall be received by the Senate without debate and their consideration deferred until consideration of the Appropriation Bills.

A Hansard report of Committee proceedings shall be circulated, in manner similar to the daily Senate Hansard, as soon as practicable after each day’s proceedings.

The foregoing provisions of this Resolution, so far as they are inconsistent with the Standing Orders, shall have effect notwithstanding anything contained in the Standing Orders.

Senate Select Committee on Foreign Ownership and Control

Senator COTTON:
New South Wales

-I give notice that on the next day of sitting I shall move:

That notwithstanding anything contained in the Standing Orders the substance of proposals for amendments to existing legislation relating to the Australian Industry Development Corporation and for the establishment of a National Investment Fund as expressed in proposed laws entitled the Australian Industry Development Corporation Bill 1 974 and the National Investment Fund Bill 1974 be referred for inquiry and report by 1 October 1974 to the Senate Select Committee on Foreign Ownership and Control which is hereby authorised to consider the matter.

page 959

QUESTION

MR GEORGI ERMOLENKO

Senator WITHERS:

-Can the Minister for Foreign Affairs inform the Senate of the present situation concerning the violinist Mr Georgi Ermolenko? Has he any further information to provide to the Senate since this matter was debated in the Senate on Tuesday night?

Senator WILLESEE:
Minister for Foreign Affairs · WESTERN AUSTRALIA · ALP

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– I have read the article in the ‘Canberra Times’ which I think said that Mr Miller had bounced out superlatives lauding the Australian Information Service which, of course, is a section of my Department the literature of which had formed the basis of the research being undertaken by Mr Miller for a national festival in Canberra next year. The honourable senator has asked what we have done to get this sort of information, which is information of a very high quality, to the Australian people. We have established a number of government bookshops and inquiry centres in the capital cities throughout Australia. I hope that in the near future there will be such a government bookshop and information centre in each of the capital cities.

Senator McAuliffe:

– Brisbane?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– In the near future I expect to be going to Hobart to open one there and suitable premises are being sought in Brisbane. After that the Government will be establishing centres in some of the provincial centres and cities. Indeed, in the last financial year as a result of the initiatives taken by the Government we have sold nearly $lm worth of Australian Government publications. Additionally, of course, we have established a mobile bookshop and information centre in New South Wales. Depending on the revenue made available to my Department I am hoping that next financial year we will be able to extend this activity to all of the mainland States. I am delighted to know that Mr Miller, having the international entrepreneurial reputation that he has, speaks with such high praise of the skills and initiatives of officers of my Department. I can assure the honourable senator that the publications that my Department has produced are also received with acclaim by people abroad.

page 962

QUESTION

OAK INSURANCE COMPANY

Senator LAWRIE:
QUEENSLAND · CP; NCP from May 1975

-Has the attention of the Minister representing the Minister for Social Security been drawn to the full page advertisements appearing in several papers offering hospital benefits of $1,000 per month, for varying premiums depending on age, by a Sydney company called Oak Insurance Ltd. I ask: Is this company registered under the National Health Act? Is the first two weeks in hospital covered by this company? Is this advertisement likely to mislead people? Is this company partly supported by Australian Industry Development Corporation funds and can the Minister give the Senate any other information about this company?

Senator WHEELDON:
ALP

-My attention has been drawn to this advertisement. In fact, it was drawn to it by Senator Lawrie himself who was good enough to mention that he intended to ask me a question along these lines. The advertisements, which have been very prominent advertisements, on behalf of the Oak Insurance Ltd feature a slogan which says: ‘Now you can receive $1,000 a month extra cash when you’re in hospital’. Apparently some very generous offers indeed are made by the company to those who would care to subscribe. It was the subject of some critical comment in the Melbourne ‘Age’ on 6 August when Mr Hutchins, who is the managing director of that company, was interviewed. One of the things which emerged from the article in the Melbourne ‘Age’- I cannot vouch for its authenticity but so far it has not been denied, as I understand it- was that the company would be spending $500,000 on advertising in the first year of its operations which would be approximately half the value of the premiums it would receive. As far as I know, the company is not registered as a hospital and medical benefits fund. So far I have been unable to verify whether or not the Australian Industry Development Corporation has subscribed any money to the company or has in any way assisted the company.

The company recently changed its name from the Allstate Insurance Co. Ltd, and it was incorporated in the Australian Capital Territory in 1970. According to the information which I have been able to obtain the Union Insurance Group of the United States holds a 14.9 per cent interest in the company and we understand that it is reinsuring 95 per cent of the policies which are underwritten by the Oak Insurance Ltd. The other interests, apart from the Union Insurance Group of the United States, are Caravan and General Finance which holds 35 per cent of the shares, a Mr Robert Dillon who holds 15 per cent, CIL Brokerage which holds 10 per cent, Wyong Road Holdings Pty Ltd which holds 15. 1 per cent, and the Australian Asiatic Corporation which holds 10 per cent.

Senator Webster:

– Can you state the capital of the company?

Senator WHEELDON:

– No. I do not know the capital.

Senator Webster:

– That would be the interesting point.

Senator WHEELDON:

-The information I have is that the people and corporations whose names I have just mentioned are the people who hold the shares in that company. If there are others, I have been unable to obtain that information. So far our information is that the people stated are the shareholders in the company. The responsibility for these matters is divided between a number of departments. The Department of Social Security naturally is concerned with it so far as it affects any claim for medical benefits. My Department also has some involvement in matters of insurance and compensation. The Treasurer is responsible for the administration and regulation of insurance companies. The Minister for Overseas Trade is responsible for the Australian Industry Development Corporation. I shall refer those parts of the question which relate to those other departments to the responsible Ministers and as soon as I have a reply I shall see that Senator Lawrie is informed. The only other thing I would say is that obviously a matter such as the matter that has been raised by Senator Lawrie is something which must cause all of us some concern. On the basis of the advertising it certainly seems that claims are being made which at least on the face of it may be rather difficult for the company to meet. I think Senator Lawrie was quite correct in drawing the attention of the Senate to this matter.

page 963

QUESTION

ABORIGINES: FOOD SHORTAGE AT WATTIE CREEK

Senator McLAREN:
SOUTH AUSTRALIA

– My question is directed to the Minister for Aboriginal Affairs. I refer the Minister to a number of Press reports over past weeks to the effect that there is a food shortage facing the Gurindji community at Wattie Creek in the Northern Territory. Although I know that the Minister has made a Press statement on this matter I wonder whether, in the light of continuing misconceptions in the minds of many sympathisers with the Gurindji people, he could advise the Senate whether there is truth in the accusation that the Department of Aboriginal Affairs declined to assist the Monash Association of Students in sending food to the Gurindjis?

Senator SCOTT:

-I ask the Minister representing the Minister for Education: Is it a fact that many students in secondary schools and tertiary institutions have missed out on Federal Government allowances because inflation has taken parents’ income above the means test limit? Can the Minister tell the Senate how many secondary school students have received allowances this year and how this figure compares with the number who benefited annually under the former Government’s secondary scholarship scheme? Will the Government review the position before the commencement of the 1975 school year?

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– All I can say is that I understand there may have been some criticism of the scheme on the grounds that the means test imposed by the scheme might be considered to be too restrictive and that the maximum allowance of $304 per annum might be too low. I can tell the honourable senator from information I have received from my colleague the Minister for Education that these aspects of the scheme are being reviewed. As with other schemes of student assistance, adjustments will be made from time to time in the light of movements in salaries, wages and costs. I am told by the Minister that by mid-June almost 7,000 students had received benefits under the scheme, over 60 per cent of them at the maximum rate. Present indications are that a further 1,500 to 2,000 students are likely to receive benefits during this year. ~. point out to the honourable senator that applications for this type of assistance may be lodged at any time during the year. As I said at the outset, aspects of the scheme relating to the means test are under review.

3ALLY POKER MACHINE COMPANY

Sector MULVIHILL- My question, addressed to the Minister representing the Minister for Labor and Immigration, is supplementary to one asked earlier by Senator Poyser about the operations of the Bally poker machine company. Is the Government taking steps to investigate the status of officials of this company in Australia, in view of the recommendations of the Royal Commission into Allegations of Crime in Clubs in New South Wales, with the idea of considering whether these commercial vultures ought to be deported?

Senator BISHOP:
Postmaster-General · SOUTH AUSTRALIA · ALP

– I have been advised that the Minister for Labor and Immigration has asked his officers to make urgent investigations into the findings and the status of the people involved in that organisation. This matter relates to his responsibilities as Minister. I will ask him to see what he can do to provide information at this stage and also later when his own findings and recommendations are known.

Senator Mulvihill:

– And how long are their visas good for?

Senator BISHOP:
ALP

– In addition I will ask the Minister to find out the position in that regard and tell us the results of the inquiries as soon as possible.

page 964

QUESTION

WOOL SALES

Senator MAUNSELL:

– I ask the Minister for Agriculture: What is the latest position in respect of this season’s wool sales? Is the Minister in a position to feil the Senate what will be the role of the Australian Wool Corporation?

Senator WRIEDT:
TASMANIA · ALP

-1 have had discussions with the General Manager and the Chairman of the Australian Wool Corporation in respect of the quite uncertain position of the wool market at present. As the honourable senator will know, the Joint Wool Selling Organisation has deferred any further sales until 2 September. I am not in a position to say specifically what the strategy will be for this season. The Corporation has put certain proposals before me. Until such time as I can discuss this matter at a Government level, I will not be able to state specifically the Government’s attitude. But I certainly will continue to work in liaison with the Corporation to ensure that a satisfactory program is worked out for the forthcoming season.

page 965

QUESTION

TRADE UNION OFFICIALS

Senator YOUNG:

– I direct my question to the Minister representing the Minister for Labor and Immigration. I do so following previous questions I have asked and inquiries I have made on this matter. Is it not a fact that senior officials of trade unions on strike, unlike the rank and file members, still receive payment which on some occasions amounts to more than they normally receive when their union is not on strike?

Senator BISHOP:
ALP

CIVIL RIGHTS OF INDIVIDUALS

Senator WALSH:
WESTERN AUSTRALIA

-I ask the AttorneyGeneral: How many young Australian men were imprisoned by the previous Liberal-Country Party Government under the provisions of the National Service Act 1964 because of their refusal to be conscripted? At any stage did any of the 2 1 sitting Liberal or Country Party senators prior to December 1972 protest at this abrogation of individual liberty, or move to suspend the Act? Did any Liberal or Country Party senator elected since 1972 make any similar protest? If not, can the Attorney-General explain why Liberal and Country Party senators who showed no interest in protecting the liberty of young Australians have suddenly developed a passionate interest in the very dubious allegation that the liberty of one Russian youth may be in jeopardy?

Senator CHANEY:
WESTERN AUSTRALIA

– I preface my question to the Minister for Foreign Affairs by informing him that shortly before the Senate met this morning I spoke to the Reverend Johnson who told me that he is one person who still has considerable concern about whether this young Russian has had a chance to make a free decision. Is the Minister aware that counsel appearing for the Commonwealth in the proceedings against Mr Alexandrov of the Russian Embassy in the West Australian Supreme Court yesterday was asked whether he could give an undertaking that the Government would not facilitate Mr Ermolenko ‘s departure from Australia until the hearing of the proceeding was resumed? Is the Minister aware that after a adjournment counsel for the Commonwealth told the court that he was unable to give that undertaking? Will the Minister give the undertaking to the Senate that the Government will make every effort to ensure that Mr Ermolenko does not leave Australia until he has had an opportunity to confer with those people to whom he originally confided his desire to remain in Australia, namely Mr Badger and Mr Johnson?

Senator WILLESEE:
ALP

– In the court yesterday the judge said that it was probably not a proper question to ask, but he did ask whether counsel appearing for the Commonwealth would give a guarantee that Mr Ermolenko would not be taken away before the case resumed today. Senator Chaney, who is a lawyer and whose firm is represented in this case- he has a special interest in it- would well know that the instruction that counsel appearing for the Commonwealth had was to present a certificate signed by me stating that Mr Alexandrov had diplomatic status in the pursuit of his duties in Perm. As I say, as a lawyer, Senator Chaney would understand that that was the only instruction that the counsel had, and he informed the court that that was the situation. I am interested to hear that Senator Chaney has spoken to the Reverend Johnson who says that he still has doubts about the matter. I have done my best to get Mr Ermolenko to speak to Mr Johnson, but he refuses to do it; he says that he does not want to see Mr Johnson and that he does not want to talk to him. Mr Tonkin did the same thing; he asked Mr Ermolenko whether he would see Mr Johnson and whether he would go and stay with Mr Johnson. On both occasions the answer was no. He does not want anything to do with Mr Johnson.

We are talking a lot about civil liberties. What about some civil liberties for this young man? What about getting a little bit of pressure off him? Let us start to recognise what he wants. I do not doubt for one moment that Mr Johnson wants to see Mr Ermolenko; I accept completely Senator Chaney ‘s word on that. I think that Mr Johnson has a genuine interest in this matter. But the fact is the young man is not going to see Mr Johnson; he has refused several times to do so. I do not know how many more people want to see Mr Ermolenko. We have had retinues of people to see him. He appears on television, he gets about a 25 minute cross-examination on television. He keeps saying the one thing: That he wants to go home. He keeps saying that he made a mistake in the first place, he regrets it, and he wants to go home. How much longer is this farce and this three ring circus to continue?

page 968

QUESTION

BLACK POWER MOVEMENTS

Senator DAVIDSON:

-My question to the Minister for Aboriginal Affairs relates to a recent editorial which referred to possible aid from the Federal Budget for the African Liberation Committee. I refer the Minister to this question which was asked in the same editorial:

Would the Government welcome outside aid to an Aboriginal black power movement engaged in terrorism in Australia?

If the Minister has seen this editorial, can he give the Government’s answer to such a question? Does he know of any such outside aid? If so, what steps is the Government taking in relation to it?

Senator CAVANAGH:
ALP

-Firstly, I have not seen the editorial. I know of no outside aid being given to a black power movement in Australia. In fact, I do not know of a black power movement in Australia. If there is any black power movement in Australia or if any aid is being given to a black power movement within Australia it is without my knowledge or consent.

page 968

QUESTION

SALE OF WHEAT TO NEW ZEALAND

Senator LAUCKE:

– I address a question to the Minister for Agriculture. Is it a fact that New Zealand, which is normally a 100 per cent purchaser of Australian wheat, has purchased 13,500 tonnes of United States hard red winter wheat, which will be the first United States wheat to enter New Zealand for decades? What were the circumstances surrounding Australia’s loss of that $2.25m sale? Is it a fact that the Australian Wheat Board had the requisite type of wheat available but could not take advantage of the order because of the policies and actions of Australian and New Zealand maritime unions?

If so, what action does the Government contemplate taking to ensure that Australia retains the very valuable New Zealand grain market?

Senator WRIEDT:
Minister for Agriculture · TASMANIA · ALP

– Essentially the answer to the question is yes. Senator Laucke ‘s outline of the events is correct. As to what action the Government can take, this matter has been raised before in the Senate. I think it was only yesterday that Senator Bishop answered a question in which he indicated that the Government always endeavours to use its good offices to overcome the disputes which arise. I think it would be wrong to assume that the New Zealand market has been lost permanently. Normally New Zealand does not purchase wheat from Canada, but I understand that it had no option in view of the circumstances. I presume that it will revert in the future to the normal pattern of purchasing wheat from Australia.

page 968

QUESTION

MR GEORGI ERMOLENKO

Senator GREENWOOD:
VICTORIA

– My question is directed to the Minister for Foreign Affairs. I ask: Is it correct that a Mrs Alexandra Skodeleff, an English-Russian interpreter, was present to interpret at one of the conferences held yesterday at which Mr Ermolenko said that he wanted to go home? Is it a fact that Mr Ermolenko expressed himself in the Russian language? Is it also a fact that the interpreter, Mrs Skodeleff, said that she did not think that his request to go home was genuine? Is the Minister able to confirm or deny the report that the interpreter said that she did not believe Mr Ermolenko was saying what he really felt and that she believed that he was frightened of another Russian who was in the room? Are the reports to that effect correct or incorrect? If they are incorrect, can he explain how they got into the Press?

Government supporters- Oh!

Senator GREENWOOD:

– There may be some explanation. They are matters of concern. If they are correct, do they not raise in the Minister’s mind a genuine doubt as to what Mr Ermolenko has reportedly said to other people?

Senator WILLESEE:
ALP

-No, I would never under any circumstances try to explain how something gets into the Press. I just do not know. I have been a member of this chamber for a long time but I have not been able to work that out. I am afraid I cannot help Senator Greenwood on that aspect.

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

– You have 5 children who are journalists.

Senator WILLESEE:

-Senator Douglas McClelland has reminded me of what the members of my family do for a living. I do not know the name of the woman who was the interpreter, but I saw her being interviewed on television. It has been reported to me that she said that she was not satisfied that he was saying the things that were in his mind. I understand that that report is true. I have not checked it. As she was present in a technical capacity to do a technical job, I do not think that she should have bought in on one side or the other. She was there as an interpreter. She was entitled to say what she said, but I do not think that someone who is employed as a technician ought to come in on one side or the other.

What is incorrect about her statement- I understand that some other people have made the same error- is the comment that there was another Russian in the room during the course of the interview. I rang Perth early in the morning when I knew the interview was on and did all I possibly could- I was about to say that I insisted but I could not insist as I could not put a headlock on any fellow from 2,500 miles away to keep him out- to make sure that there was no Russian in the room. I was informed by officers of my Department-I checked on this matter this morning- that it was not so that such a fellow was in the room. There may have been a misunderstanding. I think I should say that the Russians have been pretty fair in allowing their man to go out of the room while this interview was going on. But would one of us really be intimidated if a Liberal Party or Labor Party man were sitting opposite? Can a person’s thoughts be controlled by some magic in the air? Irrespective of that, in all of these things a Russian has not been -

Senator Mulvihill:

– Just imagine if Senator Wright were glaring at you.

Senator WILLESEE:

-He has been doing that for 25 years. But irrespective of what has been said, no Russian was in the room- and I do not know what difference it would have made if one had been.

page 969

QUESTION

BALTIC STATES

Senator RAE:
TASMANIA

– My question is directed to the Foreign Minister. In answering a question on Tuesday related to the recognition of the Baltic States the Minister said:

Australia did, however, consult a number of friendly countries beforehand to inform them of its intention to review its position on this matter, and neither then nor since has any criticism been raised by those countries of the course we proposed to follow.’

I ask the Minister: What were the countries consulted?

Senator WILLESEE:
ALP

-I will supply the honourable senator with a list of the countries concerned. This country would automatically inform most of the western European group of countries and others. But I shall get the information for the honourable senator.

page 969

QUESTION

ESCOR INSURANCE

Senator BAUME:

– My question which is directed to the Minister representing the Minister for Social Security relates to the question asked earlier by Senator Lawrie. Is the Australian Government, through the Australian Industry Development Corporation, a substantial shareholder in Escor Insurance, a British insurance company? Is Caravan and General Finance Ltd, the company holding a 35 per cent interest in Oak Insurance, a wholly or partly-owned subsidiary of Escor Insurance? If so, will the Government review the situation where it appears to be indirectly associated with what seems to be a dubious insurance proposition which could prove disastrous for many Australians?

Senator WHEELDON:
ALP

– I do not have the information as to whether the Australian Industry Development Corporation has a holding in Escor or whether in turn Escor has a holding in Caravan and General which in turn has a holding in Oak Insurance. I shall obtain this information for the Senate. The only comment I would make at this stage is that although there has been criticism of the Oak Insurance company I would think it would be rather premature at this stage to condemn it as being a dishonest or fraudulent operation or indeed something which ought to be under suspicion. All that one really knows of the matter is that the claims perhaps at first sight seem a little extravagant and that some criticisms have been made by the Melbourne ‘Age’. But I would not want it to be taken that either I or the Government is setting out to condemn the company. I shall obtain the information which is being sought by Senator Baume.

page 969

QUESTION

GEORGI ERMOLENKO

Senator SIM:
WESTERN AUSTRALIA

– I direct my question to the Leader of the Government in the Senate and refer to a reply which he gave yesterday to a question asked by Senator Everett concerning Mr Ermolenko. The Minister in the course of his reply said:

It does seem interesting that the Liberal Party is so anxious to have Senator Willesee leave Canberra . . .

As this proposal, according to Press reportsthey appeared on page 8 column 3 of the ‘West

Australian’ newspaper of yesterday, if the Minister wishes to check- was made by Mr Cowles, the West Australian Secretary of the Transport Workers Union and not by the Liberal Party, will the Minister withdraw his offensive claim that this was ‘consistent with the rest of the nonsense that we have seen in the course of this political stunt being operated by the Opposition’?

Senator MURPHY:
ALP

-I have not read the West Australian1 newspaper. I will look into the matter for the honourable senator.

page 970

PERSONAL EXPLANATION

Senator CHANEY:
Western Australia

-Mr President, I seek leave to make a personal explanation on a matter that came up during question time in regard to an interest that I have.

The PRESIDENT:

-Is leave granted? There being no objection, leave is granted.

Senator CHANEY:

– The Minister for Foreign Affairs mentioned in answer to a question that I am a member of a firm of solicitors which is acting in the Ermolenko case in Perth. I wish to advise the Senate that I informed the Minister of that fact when I spoke to him yesterday. I also mentioned it to Senator Button. The position is that I am a member of a firm of solicitors, that I ceased practising on 30 June this year following my election to the Senate but that I have remained a member of that the firm which is involved in the litigation.

page 970

QUESTION

PETROLEUM PRODUCTS SUBSIDY SCHEME

Senator MURPHY:
ALP

-Senator Wright in the adjournment debate on Tuesday night referred to a question he asked on 1 August concerning the means by which the petroleum products subsidy scheme has been terminated. The honourable senator will be aware that the scheme began in 1965 following the enactment of the States Grants (Petroleum Products) Act 1965. Section 4 of the Act provides that the Minister for Customs and Excise may, by writing under his hand, formulate a scheme for the purposes of the Act and may amend the scheme so formulated. The scheme has been amended to the effect that it does not apply to sales of petroleum products made after 31 July 1974.

page 970

REPORT ON YUENDUMU AND HOOKER CREEK

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– For the information of honourable senators I lay on the table a report of a special investigation into Yuendumu and Hooker Creek undertaken at my request by Dr H. C. Coombs and Professor W. E. H. Stanner, respectively Chairman and member of the Council for Aboriginal Affairs, earlier this year. I also lay on the table a statement by me relating to the report.

Senator RAE:
Tasmania

– by leave- I move:

This is a matter to which we would wish to address ourselves, but in view of the demands on getting legislation through I seek leave to continue my remarks at a later stage.

Leave granted; debate adjourned.

page 970

GROWTH CENTRES

Senator CAVANAGH:
South AustraliaMinister for Aboriginal Affairs · ALP

– Pursuant to section 15 of the Growth Centres (Financial Assistance) Act 1973 I present for the information of honourable senators a copy of an agreement between the Australian Government and the Tasmanian Government relating to a study program based on the proposed strategic development study for Tasmania.

Senator CARRICK:
New South Wales

– by leave- I move:

I seek leave to continue my remarks. Leave granted; debate adjourned.

page 970

JOINT COMMITTEE ON PRICES

Household Soaps and Detergents

Senator GIETZELT:
New South Wales

-I bring up the report of the Joint Committee on Prices relating to the price of household soaps and detergents together with a statement relating to the report.

Ordered that the report be printed.

Senator GIETZELT:

– The report on the price of household soaps and detergents which has just been tabled is the first report of the Joint Committee on Prices established by the 29th Parliament. The report will be tabled in the other place by the Chairman of the Committee, Mr C. J. Hurford, M.P. at the commencement of the Budget sitting. On behalf of the Chairman of the Committee I wish to outline the salient features of the report. The inquiry on which the report is based was conducted by the Committee established by the 28th Parliament. The views, conclusions and recommendations, however, are those of the present Committee. I pay a tribute to the members of the Committee, who reached complete agreement on the compilation of this report. Briefly, the report underlines the value of price investigations that encompass an industry rather than the individual companies that constitute that industry. Thus, the industry examination shows that the starting point for analysis is the domination of the market by 2 major manufacturers who between them control over 80 per cent of the market. Interestingly enough, where their market power is reduced, as it is in the dishwashing or liquid detergent part of the marketwhere they control less than 45 per cent- cost increases have been absorbed with the result that the rate of price increase has been less frequent than in other sections of the market.

With the above exception, the Committee has found that this industry exhibits an absence of real or effective competition. Incidentally, this conclusion is not very different to the one arrived at by the United Kingdom Monopolies Commission that examined the household detergents industry in that country. The absence of real or effective competition has been reflected in; firstly, the absence of price competition, with the exception of dishwashing detergents referred to previously; secondly, the unnecessary proliferation of brands; thirdly, an excessive amount of advertising, which also misleads the consumer; and fourthly, unduly high profits. It is against this background that the Committee drew up its recommendations. The first 2 recommendations deal with reducing the level of advertising by the 2 major manufacturers. The Committee has asked the Attorney-General (Senator Murphy) to inform the major manufacturers of the Committee’s wish to see them enter into a voluntary agreement to reduce the amount of advertising so that the consumer could benefit from lower retail prices. The Committee is convinced that such an agreement would confer a specific and substantial benefit to the public which would not be available without that agreement- see Section 90( 5 ) Trade Practices Bill 1 974.

The Committee also asks the Australian Government to invite the Prices Justification Tribunal to examine the question of excessive advertising in this industry. This would be particularly appropriate if the major manufacturers are reluctant to enter into a voluntary agreement. The other recommendations could be divided mainly into 2 sections. The first deals with the establishment of standards and the testing of products against these standards. These recommendations are made to the Minister for Science (Mr Morrison) who is responsible for the Interim Commission on Consumer Standards. The second set of recommendations directly benefit the consumer. The Committee has recommended that some financial assistance be given to consumer organisations to assist them publicise the results of the tests. In another recommendation the Committee has asked the Minister for Science to assist consumers to draw up questionnaires that would ask manufacturers and others to substantiate the claims made in their advertising. These recommendations could assist the consumer to make a more informed choice by reducing consumer exposure to meaningless messages such as ‘whiter than white’ and also by increasing consumer awareness of the quality of competing products. This in turn could lead to greater purchases of good quality, lower priced products and thereby hopefully permit price competition rather than competition based mostly on advertising and brands.

Finally, once again as a means of encouraging competition in the domestic market, the Committee has recommended that the question of the level of protection given to the industry be referred to the Industries Assistance Commission. To sum up then, the view of the Committee is that the adoption of these various recommendations would have a twofold impact. Firstly, there would be a reduction in retail prices if the level of advertising were reduced. This would constitute visible benefits to the consumer. Secondly, the other recommendations could increase the efficiency of the industry by stimulating a more meaningful type of competition. This would result in prices being at a lower level than they would otherwise be and would accrue to the consumer in the longer term. This is the fifth report by the Joint Committee on Prices. It is clear that as a result of the Committee’s investigations into price abuses in the market place, it is fulfilling a very important role of exposure of the excesses which are taking place there. I commend the report to the Senate. I move:

I seek leave to continue my remarks on the resumption of the debate.

Leave granted.

Senator GUILFOYLE:
Victoria

-In view of the difficulties with regard to time, I seek leave to make a very brief statement on the same matter as a member of the Joint Parliamentary Committee on Prices at the time that this investigation was undertaken.

The PRESIDENT:

-Is leave granted? There being no objection, leave is granted.

Senator GUILFOYLE:

– Thank you, Mr President. My statement simply is that I would wish to have an opportunity to make some comments on the report and the recommendations and, in particular, the concluding remarks of Senator Gietzelt who presented this report to the Senate. I seek leave to continue my remarks at an appropriate time.

The PRESIDENT:

– Is leave granted? There being no objection, leave is granted.

Motion (by Senator Gietzelt) agreed to:

That the adjourned debate be made an order of the day for the next day of sitting.

page 972

GOVERNMENT BUSINESS

Precedence

Motion (by Senator Douglas McClelland) agreed to:

That, unless otherwise ordered, Government business take precedence of general business after 8 p.m. this day.

page 972

JOINT COMMITTEE ON FOREIGN AFFAIRS AND DEFENCE

The PRESIDENT:

– I have received letters from the Prime Minister, the Leaders of the Opposition Parties in the House of Representatives and the Leaders of the Government and Opposition Parties in the Senate, in accordance with resolutions passed by both Houses, nominating members to serve on the Joint Committee on Foreign Affairs and Defence as follows: Senator Carrick, Senator Sim, Senator Drury, Senator Mcintosh, Senator Maunsell, Senator Primmer, Senator Wheeldon, Mr Berinson, Mr Coates, Mr Connolly, Mr Corbett, Mr Cross, Mr Dawkins, Dr Forbes, Mr Fry, Mr Giles, Mr Kerin, Dr Klugman, Mr Lucock, Mr Oldmeadow and Mr Peacock.

Motion (by Senator Murphy) agreed to:

That the senators nominated in accordance with the resolution of the Senate be appointed members of the Joint Committee on Foreign Affairs and Defence.

page 972

TRADE PRACTICES BILL 1974

In Committee

Consideration resumed from 14 August (vide page 952).

Clauses 52 to 75.

The CHAIRMAN (Senator Webster:
VICTORIA

-The Committee is dealing with Part V of the Trade Practices Bill, which is concerned with consumer protection, and we are considering clauses 52 to 75 together. The question is: ‘That clauses 52 to 75 stand as printed’.

Senator GREENWOOD:
Victoria

– When the Senate adjourned last night I had been indicating the reasons why the Opposition considered that the benefits of consumer protection were not likely to be served by the approach which this Bill takes. I had indicated, for example, that in the State of New South Wales there is a very substantial code of legislation under which consumers are given protection. It is always a constant problem as to whether the extent of the protection afforded is as comprehensive as it should be. That is understandable in a way because it is the constant problem of government to look after the public interest, and it seems that in that State, as in other States of the Commonwealth, improvements are continually occurring.

Senator Poyser:

– You would not think that Victoria’s legislation was very adequate.

Senator GREENWOOD:

-No, I am coming to Victoria in a moment. Obviously the AttorneyGeneral feels that this is an area in which the Commonwealth could take a hand, but the result could be that instead of having eight separate sets of laws right throughout the Commonwealth, which we have at the moment, we will be adding a ninth. We will be creating duplicate provisions in some cases, parallel provisions in other cases and inconsistent provisions in almost every State. We say that this will not help the consumer.

I have indicated the position in New South Wales, and now I will mention the position in Victoria. The Victorian Consumer Protection Act was consolidated in 1972, when all the individual pieces of legislation which had been enacted throughout the 1960s were brought together in that Act. The Act established the Consumer Affairs Council, which acts as an advisory body to the Minister on consumer matters, and the Consumer Protection Bureau, which deals with the public on consumer matters and conducts research into consumer problems. Honourable senators should look at the host of matters with which that legislation deals. It deals with trading stamps or coupons and prohibits in that respect the entry into a retail transaction of a third party- a trading stamp company- which makes its profits from the sale of stamps or coupons to a retailer. There is a provision that imposes penalties for false or misleading advertising. There is a provision that imposes a penalty for the misleading marking of prices. There is a prohibition on mock auctions. There is a comprehensive code, which I think every State has, regulating door to door sales and giving to people who buy something at the door a breathing space before they have to be committed to their purchase. There is a provision relating to unordered goods and services. There is a very comprehensive provision relating to pyramid selling which, I think, on any objective examination, would appear to be more comprehensive and to give greater coverage than the provision in the Commonwealth legislation. A provision with regard to merchandise marks is contained in the legislation. Footwear regulations, furniture regulations and safe design and construction of goods are all matters which are dealt with under this legislation.

In 1973 Victoria established a Ministry of Consumer Affairs and a Small Claims Tribunal. The Small Claims Tribunal is a development which, I think, is moving right around Australia. We of the Opposition have the view that small claims tribunals cannot be established by the Commonwealth- apart from for the Territories, over which it has a comprehensive legislative power. I would be interested to hear how the Attorney-General responds to the argument, which we advanced in the House of Representatives and which we advance here, that the small claims tribunals will not be places of resort to which people who complain about offences under the Commonwealth Act may go. If we are right in that view, is that not depriving people of a beneficial tribunal? I am interested to hear what is said. This is an area in which we believe there is confusion. If the Commonwealth legislation is enacted, that is one of the difficulties which will flow. A lot can be said on this matter and, without taking too much time of the Committee, I say that I would be interested to have the Attorney-General’s response to some of the matters raised before we embark on other areas.

Senator EVERETT:
Tasmania

-The public must be puzzled at the attitude of the Opposition in this important sphere. The Opposition, in another place, here and publicly, has professed its support for this Bill. It has said that the provisions contained in Part V are sound. Senator Missen, when he spoke late on Tuesday night, extolled the provisions of the Bill generally. That is one attitude of the Opposition. The other attitude- it is the Opposition’s practical attitude to this Bill with which we are concerned -is that it opposes every provision in Part V. As I understand the speeches that have been made, the Opposition bases its latter attitude mainly on the ground that there are State laws which deal with some of these matters. The simple fact is that the State and Territory laws are fragmented, lack uniformity and very obviously are the result of the response of State governments to ad hoc political pressures. They lack the essential thing in this area, that is, a national approach.

Reference has been made to some of the State laws. I suggest that if all the State laws, together with the laws of the Territories, were added together and examined, and if the strongest provisions in relation to every area of consumer protection were distilled out of those laws, it would be found that they would contain only a fraction of the strength of the protection that is afforded by this Bill. To illustrate that proposition one has only to look at clause 52 of the Bdi. I suggest that this is a provision which is not found in any existing State or Territory law. It is a provision which is completely general in its content, and it is a provision which would ensure in a general way protection for the consumer far beyond the protection that is afforded to him by the law of any State or Territory. It is stated in clause 52:

1 ) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive.
Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section ( 1 ).

In effect, that is a provision which outlaws practices which are inimical to the interests of consumers whether they are presently being practised or whenever they may be practised. No State has any such provision.

I turn to clause 55 which applies, because of the constitutional power of the Australian Parliament, to persons as well as to 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.

I suggest that that clause transcends what is contained in any existing State or Territory legislation. I go further and say that many of the provisions contained in Part V, all of which the Opposition seeks to delete from the Bill, have no counterpart whatsoever in State or Territory legislation. Two outstanding examples of that proposition are to be found in clauses 62 and 63. Clause 62 deals with product safety standardsthis is a novel approach in Australia- and clause 63 deals with product information standards. One might have understood the Opposition’s attitude if it had sought to delete some of the provisions of Part V but to retain provisions which were unique so far as Australian State and Territorial legislation were concerned. Those are 2 supreme examples. But the Opposition has not done that.

Senator Greenwood referred this morning to consumer protection bodies. I think that Victoria, the State which Senator Greenwood represents, was one of the first States to have a consumer protection body- its precise name escapes mewhich, I think, was established in 1964. But if honourable senators look at the reports of the various State consumer protection bodies they will see that over the years the complaint of the heads of those bodies has been the lack of effective power to take action. Essentially, they had been advisory bodies. The State Parliaments, for reasons that may have appeared good to them, have seen fit to withhold from the consumer protection bodies any grant of power that would permit them to function strongly and effectively in the interests of consumers. As I have said, basically they are advisory bodies. They appear just as children against the strong body of law that is created by Part V of this Bill which the Opposition seeks to delete.

I wish to repeat very briefly the call that I made on Tuesday for a reference of powers in this area from the States to the Australian Parliament. This call applies especially to matters which so importantly affect all Australians. It is not always the Australian Government which should take the initiative in these matters. Statesmanship equally should emanate from the State governments as well as from the Australian Government. I see tremendous advantages in a reference of powers which I believe would mean that there is no validity whatsoever in the Opposition criticism. In the first place, it would permit this legislation, by subsequent amendment, to be extended to firms and to individuals and to make it completely comprehensive, including, of course, corporations as the Australian Parliament may now legislate. Secondly, it would produce uniformity. Where is the logic for a particular act to be an offence in one State but not an offence in another. Surely manufacturers, retailers and wholesalers would be advantaged throughout Australia if their obligations were the same irrespective of the State or Territory in which they carried on business. Thirdly, the advantage of a reference of powers would be to obviate any legal constitutional difficulties which, as has been indicated, may arise.

It could be said: ‘Why does the Australian Government not take the initiative?’ The simple fact is that the Australian Government has taken the initiative in many areas to endeavour to get a national approach to a national problem. I have already referred to what I termed the fiasco which took place in Perth- and if I may correct the year I gave-on 2 July 1973, not 1972. That was an occasion when the present Australian Attorney-General was endeavouring to obtain the agreement of the States to a national approach to the administration of company law on a national basis. He was rebuffed. The Liberal States spent the next few months devising some way to circumvent the intention that the Australian Attorney-General then declared he had of bringing to this Parliament a national companies code.

The result of that deliberation by the Liberal States was the emergence by January of this year of a very curious body indeed. It had the high sounding title of the Interstate Corporate Affairs Commission. It was a grouping of Liberal States to endeavour, as I have said, to circumvent national legislation. A perusal of its proposed charter shows how futile it would have been. It was to be non-executive in nature. Its principal functions were to consist of establishing the principles to be followed by existing administrations and supervising the standards of administration in the participating jurisdictions in a number of matters. In other words, it was a club constituted by State Liberal governments to perpetuate, so far as company law was concerned, the administrative scandals which were so quickly subsequently revealed by the report of the Senate Select Committee on Securities and Exchange. There are other experiences which the Australian Government has had in a short time. I believe it is the obligation of State governments to offer a lead in this respect and offer the Commonwealth powers that would produce the beneficial results I have mentioned.

The most curious aspect of this amendment whereby the Opposition seeks to delete in toto the consumer protection provisions of this Bill is what is its motivation. I would like to know from the Opposition who is clamouring for the deletion of this Part because the Opposition concedes that it is good law. I spoke in the lobbies of this place yesterday afternoon with a leading representative of a quite large Australian manufacturing company which I will not name. The company, apart from being a substantial employer of labour, conducts business in all States and also overseas. The comment of that gentleman to me was: ‘Why can we not have the Bill? Industry wants this Bill as it is. We want it’. There is no doubt as to what is the attitude of the consumers. I am perplexed as to the principles upon which the Opposition seeks to delete these provisions and I am also perplexed by its motivation. It appears to me that the Opposition has no base on this issue and that it is opposing Government legislation for the sake of opposing it. In doing so, the Opposition once again demonstrates its passion to obstruct and to deny the people of Australia beneficial legislation. I would finally observe that it appears to me that the Opposition has become drowned by its own hidebound conservatism.

Senator STEELE HALL:
South AustraliaLeader of the Liberal Movement

– Senator Everett has an impressive knowledge of the subject of which he speaks. I find it very helpful to listen to his contribution as one who knows a lot less about this subject than he does. Whilst I know a lot less about technical details than Senator Everett or Senator Greenwood I have witnessed the growth of consumer protection as a member of a State parliament. In fact, I was the first one to personally bring into an Australian parliament a piece of legislation which contained a provision for a cooling-off period. That legislation was called the Book Purchasers Protection Act and it had a specific- experimental at that time- cooling-off period involved in it. I will not bore honourable senators with the fight that it took to get that legislation through not only the lower house against my own political leader, but also the upper house, the members of which did not like the legislation at all. After that Bill was brought in against, seemingly, very great opposition, it was adopted by most of those who had opposed it as being a very good Bill. That legislation has subsequently been amended twice to strengthen it. I do not think it has been incorporated in any other protective legislation. I think it still stands as an Act in its own right.

At a time when most State parliaments are beginning to think seriously about this matter all of us have witnessed the growth of legislation relating to consumer protection, credit laws, packaging and so on. We have also witnessed the more comprehensive laws that have been referred to in relation to Victoria. I think that Senator Greenwood has made out a very good case for this legislation because surely it is a protection to industry to have a uniform standard across Australia. I think that all State members of parliament have run into particular instances where they have been unable to proceed with what has been a desirable move in their particular State because it did not fit the general restrictions of the Australian Constitution or interstate trade. In some cases it would have raised the price of goods in a particular State by requiring a manufacturer to market goods in an isolated fashion.

There must be very many instances which would substantiate a case for a uniform standard across Australia. Whilst I could not quite agree with Senator Everett that industry across the board wants a uniform standard my contact with industry in a general sense, allowing for obvious exceptions, indicates that it does not mind this. Reputable manufacturers have asked the question: ‘How do you do this? What have we got to fear? We are honest operators.’ If a person is an honest operator, what does he have to fear from the consumer protection provisions of this Bill?

The Opposition does not appear to be of one mind on this Bill. I believe that the honourable member for Lowe, Mr McMahon, appeared on television this morning. I would not care to use his remarks in support of this clause because it is not proper to use just a section of a person’s remarks to support your case when he might disagree with it in other respects. However, I believe that this morning Mr McMahon said that these provisions belonged in this Bill. I do not think that that is a misconstruction of what he clearly said on this morning’s television program. As I say, I mention that only in passing because he certainly said other things which would not bolster my case in other directions. Nevertheless he said that quite clearly, and it is a matter of interest that the Opposition apparently is not of one mind on this question.

I certainly support this proposal not only because of representations made by many consumer organisations, by people who are in a position properly to present a case, which I think all honourable senators have had very well detailed. It would only bore the Committee to repeat it here when everyone has it on his personal file. I support the legislation, believing in the need for it, in the belief that it will help industry and not harm it, and in the knowledge that the very growth of State protective legislation requires a common standard throughout Australia.

Senator MISSEN:
Victoria

– I think it is necessary to say a few words in reply to some matters which Senator Murphy and Senator Everett in particular have raised on this proposal to delete this section from the legislation. In dealing with this matter last night the AttorneyGeneral (Senator Murphy) chose to slide right across the surface of the argument and not to go into the depth of it. He chose to go from one clause to another and say things like: ‘Is this contrary to Liberal philosophy? Is that contrary to Liberal philosophy?’ But he chose to ignore entirely what was the essential argument that the Opposition advanced, namely, that what is essential is that in this community there shall be laws passed by the Commonwealth where there are necessary Commonwealth purposes and there shall be laws passed by the States also in their own area.

The Attorney-General said that we have arrived at a national economy and that laws in this area should run right across the nation. Of course, that is the high point of centralism. I suggest that we should accept rather the inference which we must take from Senator Everett’s views- he comes from a State which has propounded laws in this area- when he said that there will be a constant need for statesmanship on the pan of the States. That will continue. Even if this section becomes part of the Act it will be necessary for the States to continue to pick up the areas where new demands and problems arise. Consequently we say that one cannot look at this matter in isolation from the States and that it requires further discussion and consideration with the States. Senator Everett says that he and the public are puzzled. They will be puzzled because we have here a superficial appeal being put into effect by adopting a Commonwealth law in regard to consumer protection- and that is seen to be the end of the problem. Whereas, it is evident, I think, that it will remove many rights which consumers have at the moment. It will create confusion. It has not been thought out thoroughly or discussed thoroughly with the States.

In regard to the statement that the Opposition considers that this is good law, I do not think that statement appears from any of the speeches that have been made on the Opposition side. As we have said, matters in relation to product safety standards and product information standards appear to have a certain Commonwealth importance, and it may well be that they should be in a law of this nature. But we say that one should look at each of these things and decide what is gained and what is lost by introducing a general Commonwealth law and thereby obliterating in part the rights which individuals will have, particularly in the small claims tribunal area. The Opposition’s general contention may be said to be this: If this Part stays in the Bill, superficially it will appear that the Commonwealth has tidied up, finished with this area of consumer protection, but that will not be so. There will be disappointment. It will be seen that people have lost rights which they had. There is a refusal to consider this matter further. It is not an idea on the part of the Opposition that we should remove Commonwealth responsibility from this area. It is our idea that consideration of this matter should be done in depth and more thoroughly. By leaving this section in the Bill we may be selling the consumer short. That is what I fear will happen and that is what we have tried to avoid.

Senator TOWNLEY:
Tasmania

– Firstly, I would like to congratulate both Senator Murphy and Senator Greenwood for the way in which they have handled the amendments that have been discussed before this one. I think that it has been of credit to the Parliament on a complicated Bill like this one to have seen such cooperation from the Government. It is good to see the Opposition agreeing with the Government, and it is good to see that the Government recognises that a lot of the Opposition’s amendments are of some value. Perhaps if this kind of cooperation were to occur more frequently we would not hear the sort of unfounded criticism which Senator Everett made towards the end of his speech that the Opposition was being entirely obstructive.

– 1 doubt whether anybody in the Labor Party at the moment would be prepared to say that Senator Hall was not good. I return to the clauses under consideration. The

Opposition has put forward a point which I would like the Attorney-General (Senator Murphy) to clear up. Will this legislation override State legislation and lead to a mess that will be to the detriment of a lot of people in Australia? What will happen to small claims that are presently dealt with by the small claims court in those States where small claims courts exist? What can the Government do about small claims that are made under this Act when one remembers the limitations placed upon the Federal Government by the Constitution? Will the Federal Government attempt to co-operate with State agencies that at present deal with this Act? They are some of my prime queries. If the Government can satisfactorily answer these questions, I will support the passage of these clauses.

I remind the Senate of what we are dealing with in these clauses. Clause 52 provides:

1 ) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive.

I do not think that many people can disagree with that proposition. Clause 53, under the heading of False representations’, provides:

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use 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;

b) falsely represent that goods are new;

I do not wish to deal with every one of these clauses. They deal with such matters as bait advertising whereby a corporation advertises to supply special goods, runs out of them and says it had only a few, but thereby induces people to come along and to buy at a higher price. Speaking briefly, another clause relates to accepting payment without intending to supply as ordered, and clause 60 relates to coercion at a place of residence. I think that most people in Australia would agree that if these things are happening they are bad practices. We all know that pyramid selling has been the downfall of a lot of people recently in this country.

I want to be brief because we have a lot of other legislation that I understand the Government wants dealt with before the end of the current sessional period. I think other honourable senators will deal with other aspects of these clauses but I find it hard to disagree with all the facets of this Part of the Bill. I think they are worthy of my support provided that the Government can give me some details about the points on which I requested information.

Senator GUILFOYLE:
Victoria

– I want to be brief also but I want to refer to some of the things that Senator Everett mentioned. We have to say again and again that we take exception to the suggestion that we have some motivation behind the attitudes that we are enunciating. Senator Everett questioned our motivation and then said that we have no foundation for the points of view we are expressing. I am expressing a personal point of view of concern about the confusion which could arise as a result of this added legislation proposed by the Government, particularly as it will be able to deal with corporations. Confusion will arise in the minds of consumers if they are dealing with traders and are tending to come into conflict with State and Commonwealth legislation. Undoubtedly difficulties could arise. The small claims tribunals which have been offered to consumers in many States have been helpful in the pursuit of consumer protection. For this reason I must stress again that it is in the interests of consumer protection and to avoid confusion and excessive litigation that we have been pressing our point of view that the State Acts should be available for use by the people.

For instance, I question clauses 62 and 63 which relate to safety standards and product information standards. Would those clauses be enforceable against retailers? It has been found necessary, particularly in New South Wales for instance, for the States to enable retailers to have some form of guarantee from manufacturers and suppliers. From reading those clauses it seems unlikely that a retailer would be able to give these guarantees on product safety standards and product information standards. Those are the sorts of questions that arise as a result of our attitude to the Bill and the fact that State legislation has progressively been able to deal with many of the problems that have arisen.

For all these reasons- not working against the interests of consumers but rather in support of them- we of the Opposition are expressing our disquiet about this additional legislation. Referring, finally, to the points made by Senator Everett about the reference of powers from the States to the Commonwealth, I would like the Attorney-General (Senator Murphy) to advise us whether a reference of powers has been sought. As Senator Everett stressed the necessity of this for the smooth operation of the Commonwealth legislation to cover all aspects of consumer protection, I would like the Minister to clarify that point in his response.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I am advised that although the Tasmanian Parliament had referred powers to deal with this subject matter- they were used by this Parliament- that reference has lapsed. My advice is that it is under consideration again. Senator Guilfoyle asked whether the product information standards and the product safety standards applied to retailers. The answer is yes. Of course the retailers would have a defence which is referred to in clause 85, that if the contravention was due to a mistake, to reliance on information supplied by another person or to the act or default of another person or to an accident or to some other cause beyond his control and he took all reasonable precautions and exercised all due diligence to avoid the contravention that would meet the position of the retailers. I am advised that the retailers sought such a provision as clause 85. (4). We contend that there is a real need for better consumer protection laws and that the Australian Parliament is in the best position to deal with the matters dealt with in Part V. The provisions in that Part not only have the support of consumer bodies throughout Australia but also bodies on the other side of the fence like the Associated Chamber of Manufactures of Australia and the Australian Industries Development Association have indicated that they are not opposed to the provisions.

The questions asked by Senator Townley are important. I would answer them in this way: By and large the State laws are left to operate. This Bill does not override the State laws except in a very important part of the provisions contained in clause 68, which deals with contracting out provisions. In Division 2 of Part V conditions and warranties in consumer transactions are set out. Broadly, they incorporate the same kind of provisions as are in the State Acts dealing with conditions and warranties. The provisions in the Bill go somewhat further and combine and incorporate improvements that have been made in the United Kingdom legislation. As I understand it, there is no criticism of the provisions that we have made. But one important thing we have done in the Bill is to prohibit contracting out. The conditions and warranties which are in effect incorporated in the contracts are not to be avoided by the simple device of contracting out. You may be protected by the law in such cases as where you put your goods into the custody of some person and then receive the little ticket which takes away all your rights. That kind of thing is prohibited in this provision but it is not under State law. In that area one might say that this is overriding State law; I suppose that one could say in substance that it is. It is doing something which ought to have been done long ago.

Apart from that we cannot really say that State law is being overridden in any other respect.

I invite Senator Guilfoyle to turn to clause 75, which states that except as provided by subsection (2) this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. Sub-section (2) simply states that if a person does something which is an offence under State law and Federal law he is not liable to be convicted except under one of them, and not both. It is a common provision in other areas where there might be some concurrent operation.

Senator Guilfoyle:

– How would that be affected by section 109 of the Constitution?

Senator MURPHY:

– We have taken steps to see that section 109 does not strike down. Section 109 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.

The purpose of clause 75 is to avoid the simple operation of section 109, so what Senator Guilfoyle and Senator Townley have raised has been given attention. In other words, the explanation we give is that we have avoided- except in the area which I mentioned about the contracting out provisions- the striking down of State laws by the operation of section 109 of the Constitution. So careful attention has been paid to that matter; it has been clearly covered. I can say with confidence to Senator Townley that that is the explanation, and it should be satisfactory. Mention was made of small claims courts. The small claims can still be dealt with. There is no knocking out of the small claims courts of the States. The claims which can be brought under State law can still be brought there.

Senator Greenwood:

– Do you say that under Commonwealth law they could be brought there?

Senator MURPHY:

– No, we are saying that the claims that already exist under State law can still be brought there. In no way will the consumer, who has a right, or claims a right today, be stopped from bringing his claim after the proclamation of this legislation. Whatever right he has under the State laws would continue; he can still make his claim. The operation of any small claims courts is not interfered with. The tragedy of it all is that the consumer does not have many rights; mostly, he is operating under deficient laws and there are no satisfactory remedies for him.

This legislation provides effective rights and effective remedies for the consumer. He has the ability of the Commission and public officials under the Attorney-General to assist him. This legislation also has a legal aid provision directed towards assisting consumers so that for the first time they will have effective rights against the corporations, and that is the area with which we are mostly concerned. After we have some ex- perience of this legislation and after some cases ave been dealt with by the courts, there is nothing to stop us from extending the scope of the enforcement provisions to include other courtssmaller courts and so on. That would be the obvious course. But somehow there is a misconception on the part of the Opposition that Part V will strike out all the State consumer protection laws. A further misconception is that somehow this legislation will stop the operation of the small claims courts which are already operating. That is simply not so.

I am not sure whether Senator Townley asked any other question, but it is clear that it is to the benefit of industry and commerce if they have nationwide provisions. I suppose it must be extremely remarkable that the only objection really being raised to these clauses is the kind of issue that has been raised as to what would happen to small claims courts and to State laws. I think it is a tribute to those who have worked so hard in the preparation of this legislation- my own officers and others- that they have developed an extremely good set of laws directed towards assistance to the consumers- effective remedies and the creation of most important rights, acceptable in general to the organised representatives of industry and commerce.

I suggest that it would be quite wrong in those circumstances to contemplate the rejection of this important development in the law because of some concern which is not properly based that somehow the small claims courts are being stopped or that State laws are being overriden. It is simply not so. The only argument one would have against this legislation would be to say: ‘We would prefer not to have some national law; we do not want these rights to be created; we do not want these remedies to be there; we prefer to carry on as we are’. That is manifestly not satisfactory. The consumer organisations are not satisfied with it, there are conflicts from State to State and there is a lack of effective remedies. Even industry and commerce are coming round to the viewpoint that they would rather have a set of clear laws which would operate all over the Commonwealth.

Senator Townley:

asked about co-operation with the States and with the various bureaus in administration. There would be powers vested in this Trade Practices Commission to conduct research in relation to matters affecting the interests of consumers, to make available to the public general information in relation to matters affecting the interests of consumers, to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions and the exercise of the powers of the Commission and in short to do all things necessary to assist. I think it is a matter of common sense that there ought to be the utmost co-operation with those agencies of the States which are concerned with consumer protection. I am sure that that would take place and I would do my best to insist that it take place. A good deal of expertise has been built up among people who have long experience in consumer affairs in the various agencies of the States and it would be not only not good administration but also certainly against the public interest and the welfare of the nation if there were a failure to co-operate with the States and their agencies in this area. I think those were all the matters which were raised by Senator Townley and Senator Guilfoyle on which they sought an answer. I ask that the amendment moved on behalf of the Opposition be not accepted.

Senator WRIGHT:
Tasmania

– After that long and rambling explanation I feel justified in taking just a little time to state my position with regard to this legislation because I submit that the proposition that Senator Murphy has put before us is completely fallacious and false. The Constitution provides that where there is an inconsistency between State and Federal law the Federal law prevails and that means that the State law is nullified. It is the Constitution which says that and nothing in an Act of Parliament which enacts an inconsistent law can continue the life of State law against that constitutional invalidity provision. There has been ever so much exposition in this field with regard to the way in which Acts should be interpreted. It is permissible to say that an Act shall not be interpreted so as to conflict with the Federal law if that is consistent with its language and its general content. But here we are not interested in what the commercial community says as to the acceptability of this.

I can imagine G. J. Coles and Co. Ltd and any other interstate company with professional counsel and a long pocket being quite content to have a Commonwealth-wide law, and any question of a State’s inconsistency will not trouble them. If it did, they would be able to go ad lib to the High Court and other Federal courts at great expense.

But my colleagues and I are concerned with the little man out in the suburbs who has a debt of $200 to a plumber who has not done his work properly or who has a shoddy car that was sold to him for $500 and who wants to get a quick decision.

Senator Murphy:

– How is that affected by this legislation?

Senator WRIGHT:

-I am about to point that out. I invite the Attorney-General to look at clauses 69, 70 and 71.1 will take clause 71 as an illustration. That is a case of implied undertakings as to quality or fitness. It provides:

I ) Where a corporation supplies (otherwise than by way or sale by auction or sale by competitive tender) goods to a consumer in the course of a business, there is an implied condition that the goods supplied . . . are of merchantable quality . . .

That is not language that is used in practically every State Sale of Goods Act. Since 1890 or thereabouts in every State Sale of Goods Act there has been a provision that where goods are sold by description there is an implied condition that the goods shall comply with the description. Another provision says that where a seller has sold goods, which it is in the course of his business to sell, in such a way as to show that the purchaser relies upon the vendor’s skill and judgment to supply goods that are suitable for the purpose- that of course would be the case of all sales in a chemist’s shop- there is an implied condition that the goods shall be fit for the purpose for which they are supplied. I do not pretend to state the provision completely, but that is accurate enough.

There are inconsistencies as to clause 7 1 because it attempts to exempt sales by auction and sales by competitive tender. This applies to contracts for the supply of goods and not merely for the sale of goods. Then it purports to exclude the protection as regards defects specifically drawn to the consumer’s attention before the contract is made. That is an instance in which any lawyer taking it up will see four or five inconsistencies between that proposed section and the relevant section of the Sale of Goods Act in every State. The little man from the suburbs who is complaining about a plumber’s bill or about a car that he bought for $500 wants to get his remedy in a State court according to a State law. But what will happen immediately he goes into a small claims court? This is where the deceptive nature of the Attorney-General’s argument comes in. He would certainly come within the prohibition under clause 52 of this Bill, which provides that a corporation shall not in trade or commerce engage in conduct that is misleading.

Nor should an honourable senator, submitting argument in this place, submit argument that is misleading. I am saying that it is no answer to the concern that I have for the small consumer, and that I have no doubt Senator Townley has for the small consumer, to say that the small claims courts in the States will still exist. Of course they will still exist. But with the administration of which law will they be confronted? Immediately this comes up against a Sale of Goods Act a constitutional question arises and for as long as the long pocket of Coles will last in the taking of appeals to the High Court it will be able to litigate such a fellow out of any access to justice. That is the concern that I have in this regard.

The next point is that the Commonwealth’s power, if any, in this field is limited to corporations. But in the small claims field the selling of goods is done not only by corporations but also, to a large extent, by firms and private traders. There has been no suggestion from or even implication by the Attorney-General that this law will affect the State law where Smith, a vendor, sells a motor car to a small purchaser from the suburbs. There we have, in relation to the sale of goods, a gulf between the law applicable to a company and the law applicable to a private vendor. So we have endless confusion. If the Commonwealth had the power to legislate with regard to the terms and conditions upon which goods and services should be sold or supplied, and therefore was able to bring into effect an effective and operative law which was simple, clear and easily accessible, we would not be protesting against provisions such as this one. But the thing is that it will inveigle every small consumer into this web of confusion and of costly and constitutionally vexatious law. It is not an answer for the Attorney-General to say that the small claims courts will continue to exist. They will continue to exist in a befogged state of the law in which the commercial community will have an immense advantage by its being able to litigate those intricate issues that are costly and thereby prevent the small man ever going to law. One of the things that is bedevilling the legal system at the present time is the cost of it.

Senator Greenwood:

– It is the real meat of consumer protection today.

Senator WRIGHT:

– Exactly. We have our consumer protection courts, our small claims courts, our inexpensive courts of request and so forth. I have risen only to state quite clearly that I repudiate the submissions of the AttorneyGeneral as being even an elementary exposition of the state of the law that will result from this attempt to plaster a whole federal fabric over what is now the pattern in each State according to legislation that has been in existence for varying periods of time. It is the legal confusion and the constant costliness which gives an advantage to the commercial community as against the consumer. That is my reason for objecting to the whole of this Part.

Sitting suspended from 1 to 2.15 p.m.

Senator GREENWOOD:
Victoria

– I indicate that the Opposition acknowledges the fact that it will be the desire and wish of the Senate that the Part we would like to have removed should remain part of the Bill. But what was said by the Attorney-General (Senator Murphy) when he last spoke reveals as clearly I think as any words could express one of the hidden problems which will emerge from this legislation. He said that the small claims courts which the States have established will continue in existence for the purpose of adjudications upon matters arising under State laws. We agree with that. But we think that the scope for those small claims courts will be so limited that what has been the really significant development in the area of consumer protection in recent years will cease to be of value.

The Attorney-General knows the provisions of the Constitution and matters arising under Federal laws can be heard only in Federal courts or in State courts invested with Federal jurisdiction. The small claims tribunals are not federal courts -and they cannot be- and they are not State courts. Therefore any of the problems -

Senator Murphy:

– How would you describe them?

Senator GREENWOOD:

– They are purposely established as small claims tribunals in order to avoid what are called the expenses and the procedural difficulties which one has in taking issues before courts. That is said to be their appeal and I think that we all recognise that with virtually a minimum of expense the small claims tribunals can deal with what Senator Wright earlier acknowledged was the meat of consumer protectionclaims for $200, $300 or $500 in regard to work and labour carried out, services and goods such as motor cars which have something wrong with them and in respect of which the purchaser either wants his money back or wants what he has bought. The small claims tribunals were the places where these issues could be litigated and their establishment represented a thoroughly desirable development.

If, as the Attorney-General says, the Commonwealth laws which he is introducing here are such good laws why should the opportunity not be given to enable the issues which they raise to be litigated in small claims tribunals? The issues will not be able to be litigated in these tribunals because they will have to be taken to a court, with all the attendant delay, complexities and costs. If I am incorrect in this argument I would like the Attorney-General to make the position clear, because, as Senator Missen said, there will be a lot of disappointments with this legislation. I believe that this result is not one of the results that people who have supported the legislation apprehend will flow.

Additionally, of course, there is the distinction between individual traders and companies. Each of the States has a consumer affairs bureau or department which is staffed by people who administer the relevant legislation. A trade practices commission will be established under this legislation and presumably it will police the Commonwealth legislation. There will be a duplication of staff and one wonders what will happen in the State areas with regard to State matters and whether or not there will not be a diminution in the work which these State bodies are doing. These are some of the aspects which the Opposition parties have in the forefront of their consideration. They are real problems and we would have wished the Government to have taken note of them. There is no desire to be obstructive, as is the constant refrain from Government speakers. We want these issues resolved in the interests of everybody. But, as I said, our arguments do not prevail. We acknowledge the fact. The Opposition will not say anything further on the Part.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I will not respond to the provocation of Senator Wright. I would rather proceed with the Bill than divert to the path that he would like us to follow. I think it sufficient to say that the proper approach to be pursued in relation to clause 109 was indicated by Chief Justice Dixon in the case of the Australian Coastal Shipping Commission v O’Reilly, which is reported in 107 Commonwealth Law Reports at pages 56 and 57. It is evident from that case that one looks to the way in which Parliament has expressed the intention. In this Bill the intention has been expressed in clause 75. The Parliamentary Counsel have spelled it out in the drafting of the provision, and there is no doubt that what was intended was to see to it that, except in regard to the conditions of warranties to which I have referred, there was no overriding, to use the loose expression, of State law. The claims which the Opposition is making fall to the ground. The small claims tribunals would continue to exist. The cases which could be brought before those tribunals would be brought.

Senator Greenwood:

– Not under Commonwealth law.

Senator MURPHY:

-Senator Greenwood is asking whether cases can be brought before the small claims tribunals under the provisions we are considering. The answer is no. For these reasons I think Senator Greenwood was himself saying that these tribunals are not courts at all. They are small claims tribunals. They are certainly not Federal courts; they are not State courts. Indeed, a lot of the answer to what Senator Wright was putting is that a number of tribunals- I do not say all- do not apply law at all. They are told not to apply the law. They decide the cases according to equity and good conscience. Senator Wright would be familiar with cases decided in this way. The Privy Council in some famous case dealt with this matter, saying that the tribunals were not courts of law at all but decided cases on what they thought was, in effect, equity, good conscience, fairness, justice, and so forth. So Senator Wright’s attack upon the legislation is really not merited.

Insofar as the law applies to claims by a buyer against an individual vendor, it is true that it will not be touched. What does Senator Wright have to complain about in that? Really his complaint seems to be that it is a pity that the legislation cannot go further. We have gone as far as we can. If he wants the legislation to go further and to cover the whole field there is no way the Commonwealth can do that. The only way is the way Senator Everett suggested. Let the States refer a power to the Commonwealth so that the Commonwealth can cover the whole field. But because under the Constitution the Commonwealth cannot act without such referral of power, we have done what is right and proper in regard to corporations. As I have indicated, in the field of conditions of warranties we have overridden or to some extent extended State law. This ought to have been done long ago by the Commonwealth to prevent contracting out. This measure is desirable. Nobody says that there is anything wrong in it. That is not the complaint.

Honourable senators opposite are saying that because there are some areas we cannot touch therefore they will vote against the legislation. That is a completely negative approach to legislation. We are coming towards the end of this debate and not one honourable senator opposite has said that there is anything wrong with any single provision in the Bill. The provisions have been carefully drafted and an enormous amount of work has gone into them. It is remarkable that in a legislative body we could have a whole set of provisions dealing with matters of false and misleading conduct, false representation, bait advertising, pyramid selling and a whole gamut of commercial conduct which, apparently, is clearly acceptable to the manufacturing community and nobody is prepared to say there is anything wrong with any of the provisions.

All honourable senators opposite can complain about is that because of the Constitution we cannot cover the whole field and as to relations between individuals, we cannot cover and change the law respecting those persons. What we have done is not to interfere with the rights of those persons as between themselves. Where corporations are concerned, we have given new rights and new and effective remedies backed up with the Trade Practices Commission. In this Bill public officials are able to go in and seek injunctions and there are legal aid provisions to assist persons. All of this is in accordance with rights which are accepted on all hands as being well drafted and sensible. For some continuance of negativism honourable senators opposite want to knock out such legislation. I think it is a pity that we should see this attitude even raised in the Senate, let alone persisted with to the point of opposition.

Clauses agreed to.

Clause 76.

A person who- ( 0 conspires with others to contravene such a provision, is, if the Court so orders, liable to pay to Australia such pecuniary penalty (not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies) as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Superior Court of Australia or the Australian Industrial Court in proceedings under this Pan to have engaged in any similar conduct.

Senator GREENWOOD:
Victoria

– The Opposition has 2 amendments. They are expressed as one but they deal with different matters. I ask for leave of the Committee to deal with them separately.

The CHAIRMAN:

– Order! Is leave granted? There being no objection, leave is granted.

Senator GREENWOOD:

– I move:

Clause 76 provides for the imposition of penalties upon persons who in one way or another run foul of the provisions of the legislation. The clause states:

A person who-

contravenes a provision of Part IV;

b ) attempts to contravene such a provision;

aids, abets, counsels or procures a person to contravene such a provision:

) induces, or attempts to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;

is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

f ) conspires with others to contravene such a provision.

If the court so orders such a person is liable to a pecuniary penalty of up to $250,000. The Opposition seeks to have deleted the provision relating to a person who conspires with others to contravene such a provision. The simple and short reason for the amendment- I do not detain the Senate- is that in the original Bill which was introduced last year there was a prohibition upon anyone who conspired in restraint of trade. After examination of the various representations the Attorney-General (Senator Murphy) withdrew that prohibition from the legislation. Now it does not appear. It seems to the Opposition that when this provision is brought into this part of the legislation it is introducing by the back door a complex situation of conspiracy. We believe that the earlier provisions which are tremendously comprehensive cover the situation and so we have moved to leave out that provision.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– We oppose the amendment moved by the Opposition. There is no justification for the deletion of the conspiracy provision which is contained in sub-clause (f)The word ‘conspires’ in this sub-clause plainly has its ordinary meaning and refers to an agreement to perform an illegal act, and generally this is indefensible. It stands on a different footing from the provisions which was referred to earlier and which the honourable senator said we altered in order to change the words to ‘arrangements ‘ or ‘ understandings ‘ and so on.

Amendment negatived.

Senator GREENWOOD:
Victoria

– The next amendment is also to clause 76 (f). I move:

The Opposition regards this as a significant amendment to which we would like the Senate to give its closest attention. I have indicated that clause 76 imposes a pecuniary penalty of $250,000 upon persons in respect of matters in regard to which those persons may be brought before the court. So that if a person contravenes a provision of Part IV, or attempts to contravene such a provision, or is in any way involved in a contravention, that person may be liable to a penalty of $50,000, and in the case of a company the penalty may be as much as $250,000. Clause 77 indicates that when the proceeding is instituted in the court by the Attorney-General or the Trade Practices Commission, he or it may do so by way of civil action for the recovery on behalf of Australia of the pecuniary penalty. The Opposition views this as the imposition of a fine in the way in which any person who is charged with an offence is liable to pay a fine if he is convicted.

The language in the Bill is not the usual language which is used when people are charged with an offence. But no matter what words are used the effect is precisely the same. If a person contravenes a provision of this Act then he is liable to pay a penalty. In the case of an individual the penalty is $50,000 and in the case of a company the penalty or the fine is $250,000. There is no escaping the fact that it is the same type of situation, with the same deterrent, as one finds over the whole broad spectrum of criminal law. I believe that the standard of proof which we have long accepted in our community as the standard of proof for conviction of a person ought to apply in this area as it does in other areas. A person may be charged with a parking offence. That is probably the most minimal type of offence for which our law provides today. I hope I am not overstating the position. But even if a person who is charged with a parking offence contests the facts he knows that he is presumed innocent until he is proved guilty, and for him to be proved guilty of that offence requires that every ingredient of the facts necessary for his conviction must be established to the satisfaction of the tribunal beyond a reasonable doubt. The words beyond a reasonable doubt’ are hallowed words and they constitute the bulwark of our system of criminal justice. Anyone accused of a crime or charged with an offence is presumed to be innocent until it is established that he is guilty in accordance with that standard of proof. I hope that we will not see any inroads made into that standard, into that concept.

We believe that this provision which we are now considering makes an inroad into that concept. We do not believe that simply because the character of the legislation is trade practices legislation it should be easier for individuals or for companies to be found guilty of an offence.

We believe that if an offence is committed against this legislation, a contravention of a provision of Part IV, then that offence is precisely the same as an offence against or a contravention against any other provision of any other legislation for which this standard of a reasonable doubt applies. Therefore what we propose to do by way of amendment is to leave out the words which appear in the clause ‘is, if the Court so orders, liable to pay’, and to insert the words ‘is, upon proof of the act or omission concerned, beyond reasonable doubt, liable, if the court so orders, to pay’.

The amendment substitutes for the standard of proof which applies in civil actions the standard of proof which applies in criminal actions. We believe that is appropriate to the type of contravention with which we are concerned. If citizens are engaged in litigation which involves establishing to the satisfaction of the court certain facts before the plaintiff can win his case against the person he is suing, the court has to be satisfied whether, on the balance of probabilities, the facts are as the plaintiff alleges them to be. It is a standard of comfortable satisfaction that what you are doing and what you are finding is right. It does not require the standard which is involved in the prosecution of criminal offences of being satisfied beyond any reasonable doubt. Why should that earlier standard be the standard which applies when an individual is liable to pay a penalty of $50,000 or when a company is liable to pay a penalty of $250,000. It is the type of financial exaction, the securing of proper conduct by the imposition of a deterrent, which has all the earmarks of the criminal law. It ought not to be supposed that there is no distinction between these two standards of proof.

The Attorney-General will be familiar with the case of Rejfek and McElroy which is a decision within the last 10 years in the High Court of Australia. It was a decision- the reference is in the Argus Law Reports of 1966, page 270- in which the full court of the High Court of Australia consisting of the Chief Justice Sir Garfield Barwick, Mr Justice Kitto, Mr Justice Taylor, Mr Justice Menzies and Mr Justice Windeyer delivered a unanimous judgment. It was a statement of action in which 2 citizens were involved. One was making a claim for monetary compensation for damages for fraud. The question was whether the Supreme Court of Queensland had applied the right test in this civil action. The Queensland judge had applied the standard of the criminal courts and said that because the plaintiff was alleging fraud against his neighbour that fraud had to be established beyond a reasonable doubt. The High Court said that in a civil action that standard was not the applicable standard. I shall read the headnote in the law report to make one or two points. The headnote reads:

In a civil proceeding Tacts which amount to the commission of a crime have only to be established to the reasonable satisfaction by the tribunal of fact, a satisfaction which may be attained on a consideration of the probabilities.

That, of course, states the well known proposition with which, I think, all lawyers would be in concurrence.The court then said- I again read from the headnote:

The degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not, with respect to any matter in issue in such a proceeding; to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.

We believe that it is unreal to view the type and substance and the heaviness of the penalty which is to be exacted from a person who contravenes this legislation as not arising from a proceeding which is essentially penal or criminal in nature. The words which have been used in the clause endeavour to state that such a proceeding would not be a criminal proceeding. But I say that that is what is covered by the ordinary rendering of the word ‘subterfuge’. We believe that the appropriate standard of proof is the criminal standard and that individuals and companies ought not to be taken apart from the ordinary range of cases under this legislation and made liable to be fined these large amounts on anything less than the criminal standard of proof. Accordingly, we have moved this amendment.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– The Government does not agree with the amendment and it will oppose it. There is a clear distinction between the trade practices provisions and the consumer protection provisions in the Bill. For the most part, the consumer protection provisions deal with conduct which amounts to a criminal offence. This is in cases where there are false representations or conduct which is obviously of some fraudulent type and which is of a kind ordinarily covered by the criminal law. In the trade practices area, the conduct is more commercial conduct dealing with competitors, driving them out of business and so forth. An endeavour has been made to treat this area in the civil sense. The nature of the penal provisions are such as to create what are called civil offences rather than criminal offences. This is a well known concept in the law. For example, the categorisation of such offences in this way is carried out in industrial law in relation to ordinary strikes and lockouts which are met by the imposition of monetary penalties. These are regarded as civil offences. Exactly the same standard of proof applies in relation to such offences as applies in this case.

I am familiar with the cases to which the honourable senators refers. I suppose that in the course of my career I have had occasion to delve very deeply into this subject. It is clear that if you have a civil offence such as this, the standard adopted is what is called the civil standard. But when a tribunal is being satisfied that the civil offence has been committed, the degree of persuasion depends upon the gravity of what has been alleged. So if a person commits some relatively trifling infraction of a law, the tribunal might be more readily satisfied of this than if some allegation were made which was getting close to being a criminal offence. The gravity of the allegation would be taken into account before the tribunal would determine that it was satisfied. Therefore, as a matter of law- not merely as a matter of practice- if a grave breach is alleged the degree of persuasion of the tribunal must be measured in relation to the seriousness of what is alleged.

We think it is important not to import into the trade practices area the notion of criminality as such. We have endeavoured to avoid doing this. I concede that where a very grave breach is alleged to have been committed by a corporation, in a case which one may say is the worst case of some systematic breach, one might come very close to applying the criminal onus, but the tribunal would need to be fully satisfied. We thought it was important not to import the atmosphere of criminality into the commercial area in which offences committed would not be criminal offences but what could be properly described as civil offences. Inevitably, if the Opposition is successful in its bid to include in the clause the phrase ‘beyond reasonable doubt’, businessmen who are caught up by these provisions will be treated as criminals. If the Opposition wants to include the words ‘beyond reasonable doubt’ one may as well say: ‘Why not treat it as a criminal offence?’ But that would introduce the atmosphere of criminality, and in that event a person or a corporation would not be able to say: ‘Under this area it is true that we are subject to a fine- a monetary penalty- but we are not criminals. ‘ There are plenty of offences which carry with them the imposition of monetary penalties but which are not criminal offences. They are civil offences.

Senator Greenwood:

– What sort of offences?

Senator MURPHY:

– I have given as one example the strike or lock-out provisions. As a matter of fact, many years ago I was involved in a case in which there was an exhaustive examination of the law and it was determined that the proper onus of proof to be applied was the civil onus. But, of course, the tribunal would need a good deal of satisfaction before proceeding to conviction in a case where a grave breach had been alleged. Nevertheless, it is a civil offence. The Opposition is seeking by this amendment to turn this group of civil offences under this area of the trade practices legislation into criminal offences. The Opposition may find that those people whom it thinks it is helping will not be at all happy when they realise the significance of what it is seeking to do. As the Opposition knows, we have ameliorated a lot of these sorts of things. But having passed a number of provisions the Opposition is now seeking virtually to turn civil offences into criminal offences. It is seeking to introduce into a civil case the onus of proving a matter beyond a reasonable doubt. As the Opposition is aware, the onus of establishing something beyond a reasonable doubt does not apply in civil offences. Senator Greenwood instanced a High Court case, but that is quite distinguishable. I am well aware of that case; it dealt with a civil claim for damages. Under this legislation we are dealing with a civil offence which carries a monetary penalty. The Opposition is seeking to turn a civil offence which carries a monetary penalty into a criminal offence. I suggest with all respect that there is plenty of protection available on a proper judicial approach, that is, a legal approach. This is spelt out in cases such as Briginshaw and later cases. Where a grave offence has been alleged the tribunal would want to be very clearly satisfied. I suggest, with respect, that that has been very carefully considered- and regard has been had for the clear distinction between the criminal offence in the consumer protection area and the civil offences which are under the trade practices heading. I think the Opposition is not achieving very much because where there is a grave breach alleged, the tribunal would want to be satisfied according to those standards which have been laid down taking into account the gravity of the matter. What the Opposition is doing is introducing this criminal element into an area where the Government are concerned to keep it out.

Senator MISSEN:
Victoria

– I consider that this is a very important and necessary amendment to this Bill. It is all right for the Attorney-General (Senator Murphy) to say that we would be importing a notion of criminality into this if, in fact, it is beyond reasonable doubt. But I think we have got to look at the substance of the clause which is proposed. It is one which imposes very heavy penalties not only on people who commit offences under the Act but also on those who induce the offence and those who are directly or indirectly concerned and those who conspire. It is not just a matter of a wealthy company paying the penalty. It is a matter of individuals who may be fined a pecuniary penaltythe word ‘penalty ‘ is used in the Bill- of up to $50,000. This sweeps far in excess of most of the criminal penalties that are found in our community. To talk about importing a notion of criminality into this matter, when in fact it concerns a very grave offence and a very grave penalty on the part of persons, is I think a matter that has substance. Furthermore, to say that the gravity of the matter will be taken into account by the court when it is considering say, the penalty, is I think -

Senator Murphy:

– Not the penalty. I am talking about whether the offence has been proved.

Senator MISSEN:

-Whether it has been proved?

Senator Murphy:

– Yes. Leave aside the question of penalty. We are talking about the proof of the matter.

Senator MISSEN:

-When we refer to the proof of the matter we refer to the person who it is claimed has committed an offence having the right to demand that the commission of the offence be established. He should not have to depend on the fact that the court may consider that it is a very serious offence and therefore may impose in its own mind some higher standard of proof. That is what the Government is really suggestingthat the court somehow will make up its mind to impose a higher standard. This is not what the Government is setting out in this Bill. It is leaving the question as a matter of proof on the balance of probability. It is not sufficient in my view that the Government should leave it to the person who is adjudicating the offence to determine that it is a very serious matter and that therefore he will require more proof. It is important that citizens will know, from reading the Bill, exactly what their offences may be and what proof will be required.

I want to remind the Committee that last night we did two things in respect of clause 46, the

Senate decided it would not put in the word ‘wilfully’ to establish the offence of monopolisation. There is, of course, a lot of doubt and vagueness about that clause. I suggest that if the Government is not going to have words like ‘wilfully’ in the Bill then it certainly does want a standard of proof which is high before penalties are imposed.

I refer now to another example of what we did last night- clause 49 which relates to price discrimination. The Committee would not in subclause (1) include the word ‘knowingly’. Not only that, the Committee left it as a matter of fact to be established as to whether there was discrimination between purchasers of goods. In that same clause there is a provision that persons can, of course, prove that they have not committed an offence. That is in sub-clause (2). Sub-clause (3) of clause 49 states:

In any proceeding for a contravention of sub-section ( 1 ), 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, we are already importing an onus on the defendant if he is to establish a defence under subclause 2. We should bear in mind the decisions which we made and the fact that we did not include these last night. On that basis I think that at least in this clause, bearing in mind the reality of the matter- not whether the penalty will be given the name of a civil penalty or a criminal penalty; that is not the substance. The substance is the amount of money and the responsibility which individuals in this community will undergo if they are convicted of charges under Part IV. I think that, bearing in mind the substance of the whole matter, it would be outrageous for us to impose these penalties without requiring the criminal standards of proof to be satisfied before people are subjected to these charges are sustained.

Senator GREENWOOD:
Victoria

– There are 2 matters that I would like to take up in the light of what the Attorney-General (Senator Murphy) has said. I think that the way he has presented the case does not give sufficient weight to words which appear in the clause. The first point I make relates to the point on which he relies with regard to the gravity of the conduct with which a person is charged affecting the standard of proof which the tribunal will consider. As I understood him, if it is a really serious offence the court which is charged with hearing the matter will therefore expect a higher standard of proof and it is fair enough to have the standard of the balance of probabilities.

Senator Murphy:

– You know that there are only 2 standards; but you know that, in the application of the civil standard, if it is a grave offence that is alleged a higher degree of satisfaction will be required. Do not let us quibble over words. There are only 2 standards as such.

Senator GREENWOOD:

– I agree with the Attorney-General that that is the language one can find in the reports. I think that language can be found in the case to which I referred. The difficulty always is the application of it. Maybe we are at one in putting it that way. But when the Attorney-General uses that argument in this case he ignores the fact that in clause 76 of the legislation gravity is expressly to be taken in account in fixing the amount of the penalty. It seems to me, therefore, that before one gets to the penalty one has to decide whether the person is guilty of the conduct- the act or omission- charged. It is at that point that one uses either the standard of the balance of probabilities or the standard of reasonable doubt. If one uses the standard of reasonable doubt one has to establish that the man is, shall we say, guilty of what he is charged with in accordance with the traditional concept which I think, with regard to criminal conduct, none of us would want to alter. If he is guilty, then the penalty will vary according to the gravity of the offence.

If it were an inadvertent breach of the monopolisation provisions in which the conduct engaged in really was not intended, I would imagine that the counsel appearing for the person or company could put up a pretty strong case that the penalty should not be high. It would be for the court to decide what the penalty would be. On the other hand, if the conduct amounting to monopolisation was obviously purposeful and was designed quite positively to eliminate or damage a competitor, then the court could conceivably take a very serious view of it, and properly should in my judgment. But these matters are expressly to be taken into account under clause 76, which says:

A person … is liable to pay to Australia such pecuniary penalty … as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Superior Court of Australia or the Australian Industrial Court in proceedings under this Part to have engaged in any similar conduct.

They are the matters which relate to the gravity of the proceedings. Therefore, to bring in gravity as a relevant factor in support of using the standard of proof of the balance of probabilities is not to give sufficient weight to the fact that the legislation requires the gravity to be taken into account in determining the amount of the penalty which is imposed. I think that that aspect of what the Attorney-General says is relevant to what we are considering.

The second point I make is that there is a distinction between the ordinary civil suits- the claims by persons one against the other- and the criminal actions. There is no doubt that under clause 76- the clause we are considering- it is an action by the state against the individual. The action can only be brought by the AttorneyGeneral or the Commission and the money, when it is ordered to be paid, is paid to the State. That is why I say it is properly to be regarded as a fine. One is not concerned with the amount which an individual has lost; one is concerned only with the imposition of a penalty which is payable to the State. Let me use a homely example for the benefit of one or two people who might have had some experience of the situation. If ever a union were convicted and a penalty imposed, it would be required to pay a monetary sum. That sum could be $ 1 ,000 or $2. But it goes to the State and is imposed irrespective of what the loss might be. The penalty mentioned in this clause is of the same character. It is obviously the sort of penalty which ought to be imposed when the standard of proof is the standard of proof in a criminal action.

The other type of action is the civil action. One may bring a civil action under clause 82 of the legislation, which provides:

A person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part

Iv or V may recover the amount of the loss or damage by action against that other person.

That is a civil action. If a competitor is injured by virtue of monopolisation, exclusive dealing or price discrimination, he has a cause of action which he can take to the court. On that issue he relies on the balance of probabilities. That is properly so because it is an action in which one citizen litigates against another citizen. That is an instance in which the balance of probabilities standard of proof ought to apply. That is where civil action is appropriate. It is not appropriate in the other area.

I ask the Attorney-General to look at the matter in that way because- I have heard the AttorneyGeneral use this argument when he was in Opposition- once precedents are created for breaking down a consistent and accepted standard, the way is opened on some other occasion for people to use the precedent and to apply it in some other circumstance. The Attorney-General well remembers the judgment in Woolmington’s case about which lawyers in their undergraduate days learn- that there is a golden thread which goes right through our criminal law, namely, that a person is not guilty of a criminal offence until all the ingredients of what is alleged against him are proved according to the criminal standards of proof beyond a reasonable doubt. Let us preserve it in that way for all offences that this Parliament establishes.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– This is a strange debate because most of the things which are being said are correct. Who can doubt Senator Greenwood ‘s last statement that in the criminal law we should preserve the golden thread? I suppose that is not the first time that has been said. That famous statement from the law reports has been quoted many times and, of course, it is perfectly right.

The question here is whether the civil law offences defined in the trade practices legislation should be converted into criminal law offences. We set out believing that they ought not to be part of the criminal law. It is as simple as that. If one wishes them to be part of the criminal law, obviously there should be a provision of proof beyond reasonable doubt. The Government took the view that these offences ought not to be criminal but that there should be civil offences with civil penalties. I am quite astonished. I think that if there were to be an alteration businessmen after a while would start to complain. They would come to the Government and say: ‘Why are you making criminals of us in relation to some of these areas? We can understand that you are trying to stop it and that you will penalise us, but why are you making us criminals in those areas?’ If that were to happen, the answer would be: ‘That is what the Opposition wished. It wished offenders to be classed as criminals. It was not content with a civil fine and a civil onus of proof. The Opposition wished to convert the offences into part of the criminal law.’ It is quite clear from what the Government has done that that area is not part of the criminal law. As to how one approaches such matters, I refer again to the famous words of Mr Justice Dixon in Briginshaw v. Briginshaw. Let us be clear about what this is; it is about proof and not about penalties. Mr Justice Dixon said:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative or an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel, that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

He went on to give illustrations of this but it ought to be quite clear when, in a civil proceeding, a question arises as to whether a crime has been committed- that is the other instance which the honourable senator gave but it is not this - the standard of persuasion is according to the better opinion, the same as in other civil issues, but consistently with this opinion weight is given to the presumption of innocence and exactness of proof is expected.

We have carefully considered and carefully delineated the areas of criminality and noncriminality. What is proposed would be retrograde and would do very little. There may be some instances where what is suggested may have some effect but on the whole it would be a retrograde step to transfer this area into the criminal law. If Senator Greenwood would consult with and explain more to those who were concerned he might find that if there were such a change there would be a great deal of resentment against those who sought to transfer this area into the branch of criminal law when we have been concerned to keep it out of it.

Senator GREENWOOD:
Victoria

– I do not know whether the persons for whom this debate primarily is being conducted- not primarily really- or those whom we are interested to persuade by discussion, are amenable to persuasion because we have not heard from them. However I raise for the consideration of the Attorney-General (Senator Murphy) this relevant circumstance. I have in front of me section 124 of the Companies Act. The AttorneyGeneral will recall this provision when I mention it to him. It states:

A director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office.
An officer of a company shall not make use of any information acquired by virtue of his position as an officer to gain . . . an improper advantage . . .

The section also states:

An officer who commits a breach of any of the provisions of this section shall be-
1. liable to the company for any profit made by him or for any damage suffered by the company as a result of the breach of any of those provisions; and
2. b) guilty of an offence against this Act.

Then a penalty is imposed. There we have the 2 types of situation embraced in the one provision. If a director acts improperly he is guilty of an offence, and so he should be. If he causes loss to the company, under this section it can recover from him the amount of loss sustained because of his misconduct. It is a civil action which is brought by the company against the delinquent director. The action brought by the State against a director for an offence is a criminal action. There is a different standard of proof. I suggest that that ought to be the approach which we adopt here. I do not believe that the offence ought to be on a civil standard just as an ordinary civil action is based on the civil standard. I invite the Attorney’s attention to that consideration. We are creating a new offence in this area which clearly would indicate that a company or a company director may be liable for a very heavy penalty, and those penalties will be payable to the State. Whether he is liable to pay the penalty will be determined on the standard which is applicable to a civil action. It is unusual, and I would say to the Attorney-General that it is a backward step.

Senator Murphy:

– It is not unusual.

Senator GREENWOOD:

– It is unusual. I do not know these so-called civil offences. It is a concept, I think, unknown to the law and generally unknown to those who practise. There are such things as civil wrongs.

Senator Murphy:

– The revenue laws and the industrial laws are full of them.

Senator GREENWOOD:

– My experience and practice with the industrial offences with which I have been concerned is that they have been offences which have had to be proved according to the criminal standard. I just invite the Attorney-General’s consideration of these matters. He has got his legislation in the way in which he has looked for it. I think it is a blemish on the legislation if this standard of proof to be applied is to be the civil standard of proof. I invite his reconsideration of it in that light.

Question put:

That the words proposed to be left out be left out.

The Committee divided. (The Chairman- Senator J. J. Webster)

AYES: 30

NOES: 30

AYES

NOES

Question so resolved in the negative.

Question put:

That the clause stand as printed.

The Committee divided. (The Chairman- Senator J. J. Webster)

AYES: 30

NOES: 30

AYES

NOES

Question so resolved in the negative.

Clause negatived.

Clause 77.

Senator GREENWOOD:
Victoria

– I move:

The purpose of the amendment is to impose a limitation of time within which any actions to be taken are to be commenced.

Senator Murphy:

– If I may intervene again to save time, the Government will accept this amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 78 agreed to.

Clause 79 (Offences against Part V).

Senator GREENWOOD:
Victoria

-A number of the amendments we proposed to move would have been consequential upon the Senate resolving to omit Part V of the Bill. The Senate has decided not to omit Part V of the Bill and therefore a number of amendments become inconsequential.

Clause agreed to.

Clauses 80 to 83 agreed to.

Clause 84 (Conduct by servants or agents of body corporate).

Senator GREENWOOD:
Victoria

– The Opposition proposes an amendment to clause 84, namely, to leave out sub-clause ( 1 ). The sub-clause reads:

) Where, in a proceeding under this Part in respect of any conduct engaged in by a body corporate, being conduct in relation to which a provision of Part 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.

My sense as I have read the sub-clause is that the amendment would have been a consequential amendment if Part V of the legislation had been omitted. In the circumstances which I earlier indicated, there is no point in moving the amendment. It was only when I stood to read the subclause and addressed myself to it that I appreciated that.

Clause agreed to.

Clause 85.

1 ) Subject to sub-section (2), in a prosecution under this Part in relation to a contravention of a provision of Part V, it is a defence if the defendant establishes-
1. that the contravention in respect of which the proceeding was instituted was due to a mistake, to reliance on information supplied by another person, to the act or default of another person, to an accident or to some other cause beyond his control; and
2. b ) that he took all reasonable precautions and exercised all due diligence to avoid the contravention.
If a defence provided by sub-section (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leave of the Court, entitled to rely on that defence unless he has not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing giving such information that would identify or assist in the identification of the other person as was then in his possession.
In the proceeding under this Part in relation to a contravention of a provision of Pan V committed by the publication of an advertisement, it is a defence if the defendant establishes that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of that Part.
In a proceeding under this Part in relation to a contravention of Part V committed by the supplying of goods that did not comply with a consumer product safety standard or in relation to which the supplier did not comply with a consumer product information standard, it is a defence if the defendant establishes-
1. that the goods were acquired by him for the purpose of re-supply and were so acquired from a person who carried on in Australia a business of supplying such goods otherwise than as the agent of a person outside Australia; and
2. that he did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with that standard or that he had not complied with that standard in relation to the goods, as the case may be, or he relied in good faith on a representation by the person from whom he acquired the goods that a consumer product safety standard or a consumer product information standard, as the case may be, had not been prescribed in respect of the goods.
A person is not, without leave of the Court, entitled to rely on the defence provided by sub-section (4) unless he has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing identifying the person from whom he acquired the goods.

The CHAIRMAN:

– I have notice of amendments by both the Government and the Opposition. The first is that of the Opposition.

Senator GREENWOOD:
Victoria

– Clause 85 provides a broadly stated defence. The clause gives to a court in any prosecution an opportunity to exculpate any defendant if the defendant establishes that the contravention was due to certain circumstances such as mistake or reliance upon information supplied by another person or the act of default by another person or that he took all reasonable precautions and exercised all due diligence to avoid the contravention. We suggest that the amendment should be phrased in language which is covered by the provisions already to be found in Companies Acts throughout the country. We believe it is a better provision to use words which have been construed and which adequately provide whether or not a person should be excused from conduct of which he is otherwise guilty, if he has acted honestly and reasonably. We take the view that this amendment is appropriate in the context of trade practices legislation where people may be involved in an action honestly and reasonably and in circumstances where they ought to be excused and the court should have a discretion in relation to it to exonerate them. I think the amendment clearly expresses what we intend. I move:

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– The Government will oppose the amendment, as I have indicated before. We have said that we will go as far as we can, but in this instance we think it is not right that a corporation should be relieved in this manner. If corporations have acted in contravention of the Part and have become liable to damages to some person, they should not be relieved from liability for those damages. We propose that persons other than bodies corporate should be entitled to relief to the extent set out in the amendment which has been circulated on behalf of the Government. I should say that it is with some diffidence that we go this far. It is in the direction of trying to get some acceptance of this measure. I am not saying that it is going to destroy the efficacy of the Bill, but I must admit that it is with some degree of doubt that we have gone as far as we have. We certainly think that we should not go so far as the Opposition is contending.

The Government’s proposal is numbered (5) in the list of amendments circulated on its behalf. We propose that relief should not extend beyond the individuals who might be concerned, that is, officers of corporations. But we do not say that a corporation which has been set up to engage in industry and commerce and which does something that is in contravention of the Bill or forbidden, especially if it does it in such a way that it damages another person, should be excused on this basis. If there is mitigation in relation to any of these matters, no doubt that can be established in an appropriate case. But we do not think there should be an excuse in the way that has been put.

Senator WRIGHT:
Tasmania

-I shall take only half a minute. While considering that which has fallen from the lips of the AttorneyGeneral and to which I am attracted, I ask him to look at sub-clause ( l)(b). The Regulations and Ordinances Committee has considered the situation where, in respect of a defence, it is necessary to prove that ali reasonable precautions were taken and all due diligence was exercised. I invite the Attorney-General to strike out the word ‘all’ in each case. I submit that it is a reasonable defence if a person shows that he took reasonable precautions and exercised due diligence to avoid the contravention.

Senator GREENWOOD:
Victoria

– I have listened to what the Attorney-General has said. In the circumstances, I will ask for leave to withdraw the amendment I have proposed in favour of the amendment that the AttorneyGeneral has indicated that he will move. May I invite the Attorney-General to consider the point which has been raised by Senator Wright. He might recall that the Regulations and Ordinances Committee raised this point several years ago in, I think it was, a special report. There was a provision in an ordinance for the Australian Capital Territory relating to overseas shareholdings in the case of, I think, the Mutual Life and Citizens Assurance Co. Ltd. The Regulations and Ordinances Committee saw that a defence was available to the directors of that company if they could show that they took all reasonable precautions against committing the offence. The view of the Regulations and Ordinances Committee was that if all reasonable precautions had been taken the offence would never have occured and that therefore it was a defence which was meaningless. What is really required is that a person take reasonable precautions. That, I suggest to the Attorney-General, meets this situation. I invite his consideration of it.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I thank Senator Greenwood for his indication. I am familiar with what has been put. It is a matter of the construction of the clause. I suppose if one were to read it in an extreme way- that is, as meaning every reasonable precaution- it would mean that the offence could not have been committed, certainly in most cases. I do not think that what has been put is unreasonable. We are aware of the case which has been referred to concerning the Regulations and Ordinances Committee. I am sufficiently confident that no damage will be done to be prepared to accept right now the proposition that Senator Wright and Senator Greenwood have advanced. The expression appears in a large number of other areas of the law, and perhaps if we are to exclude it from this legislation it ought to be excluded from other legislation. The expression is used a great deal in the industrial law, in particular. I think that it would not be unreasonable to accept this proposition on the basis that it ought to be carried through to wherever the expression appears in other legislation. I would be prepared to move the appropriate amendment. I take it that Senator Greenwood has now withdrawn his amendment.

The CHAIRMAN (Senator Webster:

-Not quite.

Senator MURPHY:

– When he does, I will move my amendment and also the amendment relating to the deletion of the word ‘all ‘.

Senator Greenwood:

- Mr Chairman, I ask for leave to withdraw my amendment.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Amendment (by Senator Murphy) agreed to:

At the end of the clause add the following new sub-clause:

6 ) Where, in any proceedings against a person other than a body corporate under this part, it appears to the Court that the person has or may have done an act in contravention of a provision of Part IV or an act referred to in paragraph 76 (b), (c), (d) or(e) but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person cither wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit’.

Amendment (by Senator Murphy) agreed to:

In sub-clause (1 ) (b), omit the word ‘all’ twice appearing.

Clause, as amended, agreed to.

Clause 86 agreed to.

Clause 87 (Ancillary orders.)

The CHAIRMAN:

- Senator Greenwood, I have a notification of an amendment to this clause. Would this amendment be covered by what you said previously?

Senator Greenwood:

– Yes. We do not pursue the amendment.

Clause agreed to.

Clause 88.

The Commission does not have power to grant an authorisation under sub-section ( 1 ) to a corporation to continue to be a party to a contract, arrangement or understanding unless-
1. in the case of a contract- the requirements of paragraphs 45 (7) (a) and (b) have been complied with; or
2. the contract or arrangement was made, or the understanding was entered into, before the expiration of the period referred to in sub-section 2(4) and-
1. the authorisation is granted before the expiration of that period; or
2. the authorisation is granted upon the expiration or revocation of another authorisation granted to the corporation under sub-section ( 1 ) in relation to the contract, arrangement or understanding.
Subject to this Pan, the Commission may, upon application by a corporation, grant an authorisation to the corporation to engage in conduct that would or may constitute engaging in the practice of exclusive dealing and, while such an authorisation remains in force, section 47 does not prevent the corporation from engaging in that conduct in accordance with the authorisation.
Subject to this Part, the Commission may, upon application by a corporation, grant an authorisation to the corporation to acquire shares in the capital, or to acquire assets, of a body corporate and, while such an authorisation remains in force, section 50 does not prevent the corporation from acquiring shares in the capital, or from acquiring assets, of the body corporate in accordance with the authorisation.

Senator GREENWOOD:
Victoria

- Mr Chairman, I seek leave to move 3 amendments together.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Senator GREENWOOD:

– I move:

After sub-clause (5), insert the following new subclause: (5a) Subject to this Pan, the Commission may, upon application by a corporation, grant an authorisation to the corporation to engage in conduct that would be or might be of a kind referred to in sub-section 46 ( 1 ) and, while such authorisation remains in force, section 46 does not prevent the corporation from engaging in that conduct in accordance with the authorisation.’.
After sub-clause (6), insert the following new subclause: (6a) Subject to this Part, the Commission may, upon application by a corporation, grant an authorisation to the corporation to engage in conduct that would be or might be of a kind referred to in sub-section 49 (1) and, while such an authorisation remains in force, section 49 does not prevent the corporation from engaging in that conduct in accordance with the authorisation.’.
At the end of the clause, add the following new subclause:
1. Subject to sub-section (5), an authorisation may be sought and granted at any time after the date fixed under sub-section 2(3).’.

This clause deals with authorisations. ‘Authorisations’ is the name which is given to the granting of applications made by a company to continue with its particular activity where, without the authorisation which is granted to that company by the Commission, the conduct would be prohibited. There is scope for authorisations to be granted with regard to certain of the types of conduct which are prohibited by clauses 45 to 50. Certainly the provisions apply to agreements in restraint of trade. But we believe that authorisations should be able to be obtained in respect of monopolisation and price discrimination. If a company can apply to the Commission for an authorisation to engage in conduct which would otherwise be prohibited by clause 45 as being in restraint of trade, or if a company can apply to the Commission for an authorisation to engage in conduct which would otherwise be regarded as exclusive dealing, it seems that there is no proper case for price discrimination and monopolisation not to be able to be excluded. lt is not as if one is automatically excluding from the operation of these provisions companies which are engaging in conduct which would otherwise be proscribed. What one is doing is simply giving to a company the right to apply to the Commission, and the Commission will consider whether or not the company should be exonerated. I suggest for consideration by the Attorney-General (Senator Murphy) that the very width of what is described as monopolisation and price discrimination and the element of uncertainty which must attach to words which are coming into application for the first time in this country warrant the opportunity being given for authorisation. I invite the Attorney-General to consider the amendments.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– Really what is being said is that we should contemplate that the Commission may upon application grant an authorisation to a corporation to engage in conduct that would contravene clause 46 ( 1 ) which states:

A corporation that is in a position substantially to control a market ibr goods or services shall not take advantage of the power in relation to that market . . .

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.

While members of the Opposition might say that there would be no harm m including the amendment in the Bill because such conduct would never be authorised by the Commission, surely once we put it in we are saying to the Commission: ‘Here, the legislature has contemplated that you could authorise such conduct’. Such an alteration would start to change the whole character of the Bill. We would be saying: ‘Look, even this kind of conduct can be authorised ‘, because it would be considered that it was not there for nothing. It would seem to the Commission that the legislature had solemnly and deliberately said that authorisation procedures could be used in this way to authorise conduct of a kind that would allow a monopolist to use the monopoly power to destroy a competitor, to keep competitors out or to undertake the other kinds of behaviour which are prohibited by this clause. We think that this is the very kind of guideline that ought not to be given to the Commission.

How can we seriously contemplate that a commission would do this? Yet if this amendment is accepted the Commission will say: ‘Well, if the legislature said we can do it, and gave us the power to authorise it, that is what it intended us to do and there must be some cases in which we would be expected to authorise this kind of use or abuse of monopoly power’. The Opposition might answer my argument by saying that the power will never be used because how could it be used in the context of this legislation. Our answer is that if the power is put in the legislation the Commission will think that it is expected to use the power, that it is expected to condone and preauthorise abuse of monopoly power to destroy competitors or to prevent the entry of competitors into the field or substantially to damage them or to engage in the other kind of conduct prohibited in the clause. So I must say that we think it would be wrong to include such an authorisation power. It is quite different from the other provisions and it would start to distort the character of the legislation.

Senator GREENWOOD:
Victoria

-I just rise to suggest to the Attorney-General that there may be many legitimate cases where the question of whether or not the taking advantage of power might cause concern to a company when it was engaging in perfectly legitimate activities. It may be that because of the power it exercises through its dominance in the market, and because of the substantial control it exercises, it is in a position to have access to new machinery from overseas or to certain facilities that its competitors lack. To take advantage of that power and to purchase that machinery might mean that the company reduces its costs and therefore reduces its prices and thereby damages or eliminates a competitor.

Senator Murphy:

– It is not an offence to buy new machinery or to use your skills. That is surely clear enough on the authorities. That is not taking advantage of your monopoly power.

Senator GREENWOOD:

– I appreciate that this was the argument which was raised and all I say in answer to the Attorney-General is that it is not clear, even though many people would like to take comfort from the words which he has used and be able to put them to a court as being of imperative authority. Still, the court may take a different view, and it is to provide an opportunity or an avenue for a company at least to have its application considered by the Commission that this amendment is moved. After all, the Commission has to make a determination on whether an application for an authorisation should or should not be granted. There is no obligation upon the Commission, just because an application is made, to grant the authorisation or to say: ‘We must be expected to grant it some time because the power is there’. It would depend on how many applications were made and what were the facts with regard to each application. I do not think the Attorney-General’s argument is a sound argument against the proposition which we are putting forward. I think instances would arise where a company in genuine doubt would be able to utilise the provision and accept whatever the Commission’s decision was.

Amendments negatived.

Clause agreed to.

Clause 89 agreed to.

Clause 90.

Subject to sub-sections (9) and (11), the Commission shall not make a determination granting an authorisation unless it is satisfied that the contract, arrangement, understanding or conduct to which the application relates results, or is likely to result, in a specific and substantial benefit to the public, being a benefit that would not otherwise be available, and that, in all the circumstances, that result, or that likely result, as the case may be, justifies the granting of the authorisation.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I move:

That means that if a substantial benefit is shown, even though it is not specific, this will be sufficient basis for the granting of the authorisation. As the clause stands it requires the showing of a specific and substantial benefit to the public. The proposal is to leave out the words specific and’. This is as a result of some representations which we think are reasonable. We would not meet the proposal by the Opposition.

Amendment agreed to.

Senator GREENWOOD:
Victoria

– I appreciate what the Attorney-General (Senator Murphy) has said and understand how he has reached the position that he has reached. I move:

We on this side of the chamber accept the broad proposition that there should be a fundamental freedom of contract. If the freedom of contract results in a detriment to the public there should be some restriction on the parties’ freedom. This is a fairly general and traditional Liberal principle which acknowledges the right of the public interest to intervene when a detriment to the public is shown. That ought to be the emphasis of this provision. Instead of leaving the parties to show that there was some specific or substantial benefit- as it was originally and which is a difficult enough concept to establish- we would suggest that it should be sufficient to show that there had been a detriment to the public as the criteria upon which the decision should be made as to whether an authorisation was to be granted. But as the Attorney-General has indicated his view I do not persist further with the amendment.

Amendment negatived.

Clause, as amended, agreed to.

Clause 91 agreed to.

Clause 92.

Where a corporation so gives notice to the Commission, the Commission may at any time give notice in writing to the corporation stating that the Commission considers that any restraint of trade or commerce that results from the contract, arrangement or understanding or would result from the proposed contract, arrangement or understanding, has or would have such a slight effect on competition as to be insignificant, and, if the Commission gives such a notice, the contract, arrangement or understanding shall be deemed not to be in restraint of trade or commerce for the purposes of this Act.
If, at any time after the Commission has given notice under sub-section (2) to a corporation in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the Commission is satisfied that the notice was given on the basis of information that was false or misleading in a material particular or that there had been a material change of circumstances since the notice was given, the Commission may revoke the notice and, in that case, sub-section (2) ceases to operate, after the expiration of 30 days (or such longer period as the Commission by writing permits) after notice in writing of the revocation has been served on the corporation, to deem the contract, arrangement or understanding not to be in restraint of trade or commerce for the purposes of this Act.

Senator GREENWOOD:
Victoria

– Clause 92 permits a corporation to apply to the Trade Practices Commission for what is known as a clearance. I suppose it can best be described as an application to the Commission for an authority to enter into a contract where there is uncertainty that if the contract were entered into it might offend against the provisions of clause 45. This provision permits the Commission to grant a clearance indicating that it would not be contrary to the provisions of that clause. The purpose of our amendment-I do not read it out at length, because it is a fairly long amendment- is to substitute 2 new sub-clauses in place of subclause (2). Its purpose is to ensure that when an application for clearance is made the Commission shall deal with it within a certain time. We suggest it is reasonable for the Commission to deal with the application within 30 days of it being made. As we read the clause at the present time a corporation may ask for a clearance and the application may rest with the Commission for months. A corporation may give notice to the Commission and the Commission may, at any time, give notice in writing to the corporation stating that the arrangement, or contract, or understanding which is proposed will have such a slight effect upon competition that it should not be deemed to be in restraint of trade. The obligation in the 2 sub-clauses which I have mentioned, namely, proposed new sub-clauses (2) and (2A), is to ensure that a notice may be given and the Commission shall reply to that notice within 30 days. We submit that is a reasonable time for this to be done. I move:

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– We do not accept the proposal because we think it would impose an impossible burden on the Commission if it were required to reach a responsible decision within 30 days whether to clear all agreements submitted to it for this purpose. Such a time limit has been provided in relation to the merger clearances, but very special considerations are involved there. If a 30-day limit were included here it would run the risk of being counterproductive because the Commission could hardly be in a position to grant a clearance for want of satisfaction within 30 days. I will move shortly an amendment to clause 92. I do not know whether it will be acceptable to the Opposition. We have not got to it. But we think that it would really be impossible for the Act to be administered properly if this proposal and proposed changes to succeeding clauses were adopted. They would run against the machinery which has been set up. The Commission just would not be able to cope with what is proposed by the Opposition in regard to these time limits.

Senator GREENWOOD:
Victoria

– I suppose that the last answer given by the AttorneyGeneral indicates the real kernel of objection to what is proposed. I think it is regrettable that this legislation has to be brought in and that the real problem in relation to why the Commission cannot be required to give a decision on an application within a certain time is that the work load will be so great. I think that the operation of legislation which depends on authorisations and clearances for companies which find themselves in difficulties is going to be greatly hindered and enormous uncertainty will be caused. We do have a basic problem with regard to authorisations, but with regard to monopolisation and price discrimination one cannot apply for any authorisation. That creates its difficulties. It seems that if one is in doubt and one would like to use the provisions of the legislation to apply for a clearance, one may have to wait an indefinite period of time, having put in an application, before one gets an answer.

The answers given by the Attorney-General to our requests that further time be given to the Commission are to the effect, as I understand him, that the workings of the Commission simply could not stand the pressures which would thereby be involved. Legislation should operate to facilitate the activities of those who are affected by it and who desire to comply with the statutory requirements. If an application is made and there is an opportunity for a clearance, why should a company which wants to enter into a contract have to wait months and possibly lose the advantage of a contract? It is not only the parties to a contract who may be affected by that delay; it is also everyone else who is dependent upon the company. I suggest to the AttorneyGeneral that this is one area in which the problems which will arise are problems which could be overcome simply by fixing a limit. If the limit is not 30 days, it can be 60 days. But any period of time, it seems to me, is desirable rather than to leave the time limit completely up in the air so that the Commission may sit on an application and give the answer at any time.

Senator LAUCKE:
South Australia

– I would like strongly to support Senator Greenwood ‘s remarks. In practical business the matter of issue of an authorisation could be of major importance. In this case there is provision for an authority which can so disturb normal business transactions as to render great injustice and hardship to the organisation concerned. This is one instance in which I believe that if more staff are required in the interests of practical business they should be employed. I support Senator Greenwood’s remarks very strongly because I feel that he has put his finger on what is in actual business practice something of great importance.

Amendment negatived.

The CHAIRMAN:

– Do I take it, Senator Greenwood, that in this instance you wish your several amendments to clause 92 to be considered as now being dealt with?

Senator GREENWOOD:
Victoria

-I think that perhaps the Committee would agree to consider that decision as having applied to the amendments numbers 3 1 and 32 on the sheet because they relate to arrangements under clause 45 of the legislation. The amendments I am about to move relate to monopolisation. I move:

In clause 92, sub-section (3). leave out ‘sub-section (2)’, substitute ‘ sub-section ( 2 A ) ‘.
After clause 92, insert the following new clause: 92 a. ( I ) A corporation that proposes to engage in conduct that might be of a kind referred to in sub-section 46 ( 1 ) may give notice, as prescribed, of the proposed conduct to the Commission.
1. Where a corporation so gives notice to the Commission, the Commission may within 30 days after receiving the notice give notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would fall within subsection 46 ( I ).
2. Where a corporation has given a notice to the Commission under sub-section ( I ), the engaging by the corporation in the conduct referred to in the notice shall not be taken, for the purposes of this Act, to fall within sub-section 46 ( I ) if the conduct takes place more than 30 days after the day on which the corporation gave the notice and the Commission has not given a notice to the corporation under subsection (2) in relation to the engaging by the corporation in the conduct. (4)Where-
1. a corporation has given a notice to the Commission under sub-section ( I ) in relation to proposed conduct: and
2. b ) the Commission has given a notice to the corporation under sub-section (2) in relation to the proposed conduct, the corporation is not entitled to give a further notice under sub-section ( I ) to the Commission in relation to the same conduct or conduct to the like effect’.

I assume that the answer of the AttorneyGeneral is precisely the same as the answer he has given with regard to the other amendment.

Senator Murphy:

– Yes.

Senator GREENWOOD:

-We regret it very much.

Amendments negatived.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I move:

Senator GREENWOOD:
Victoria

– The Opposition will accept this amendment on the basis that it gives effect to a proposition acceded to by the Government when it was pressed in regard to clause 45.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 93.

Where a corporation so gives notice to the Commission, the Commission may at any time give notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would be likely to have the effect of substantially lessening competition in a market for goods or services.
where-
1. a corporation has given a notice to the Commission under sub-section (I) in relation to proposed conduct; and
2. the Commission has given notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would be likely to have the effect of substantially lessening competition in a market for goods or services, the corporation is not entitled to give a further notice under that sub-section to the Commission in relation to the same conduct or conduct to the like effect.

Senator GREENWOOD:
Victoria

– The Opposition has 3 amendments to clause 93. I suggest they be taken together. I simply say that they repeat with regard to conduct which is called price discrimination the same considerations which we advanced with regard to the other provisions. We regret that no necessity or obligation will be placed upon the Commission to deal with these applications within a certain time. We sought to apply that provision now in regard to price discrimination. I imagine the Attorney-General has the same view as before.

Senator Murphy:

– Yes, it is.

The CHAIRMAN:

– Is leave granted for Senator Greenwood to move the 3 amendments together? There being no objection, leave is granted.

Senator GREENWOOD:

– I move:

In sub-clause (2). omit ‘at any time’, substitute ‘within 30 days after receiving the notice ‘.
In sub-clause (4), after ‘the Commission has’, insert within 30 days after receiving the notice’.
After clause 93, insert the following new clause: 93a. ( I ) A corporation that proposes to engage in conduct of a kind that might be of a kind referred to in sub-section 49 ( I ) may give notice, as prescribed, of the proposed conduct to the Commission. “(2) Where a corporation so gives notice to the Commission, the Commission may within 30 days after receiving the notice give notice in writing to the corporation stating that the Commission considers that the engaging by the corporation in the proposed conduct would fall within subsection 49 ( 1 ).
1. Where a corporation has given a notice to the Commission under sub-section ( I ), the engaging by the corporation in the conduct referred to in the notice shall not be taken, for the purposes of this Act, to fall within sub-section 49 ( I ) if the conduct takes place more than 30 days after the day on which the corporation gave the notice and the Commission has not given a notice to the corporation under subsection (2) in relation to the engaging by the corporation in the conduct.
2. A notice under sub-section (1) may be given at any time after the date fixed under sub-section 2 (3). (5)Where-
1. a corporation has given a notice to the Commission under sub-section ( I ) in relation to proposed conduct: and
2. b ) the Commission has given a notice to the corporation under sub-section (2 ) in relation to the proposed conduct, the corporation is not entitled to give a further notice under sub-section ( I ) to the Commission in relation to the same conduct or conduct to the like effect. ‘.

Amendments negatived.

Clause agreed to.

Clause 94 agreed to.

Clause 95 (Register in relation to clearances).

Senator GREENWOOD:
Victoria

– We were to move amendments to this clause which were of only a slight character and would have been dependent upon amendments being made to clauses 92 and 93. Those amendments were not made so we do not persist with this amendment.

Clause agreed to.

Clauses 96 to 148- by leave- taken together, and agreed to.

Clause 149.

A member of the Commission ora member of the staff assisting the Commission shall not be required to produce in a court a document, copy or extract referred to in sub-section ( 1 ), or to divulge or communicate to any court any information concerning the affairs of any other person acquired by him from such a document, copy or extract, except when it is necessary to do so for the purposes of, or of a proceeding under or arising out of, this Act.
Nothing in sub-section (1) or (2) applies in relation to-
1. the communication of information to, or the production of a document, copy or extract to, the Attorney-General or an officer acting on behalf of, and with the authority of, the Attorney-General; or
2. b) the communication or production to a person of, or of information, documents, copies or extracts concerning, particulars of an agreement to which, according to those particulars, that person is or has been a party.

Senator GREENWOOD:
Victoria

– I move:

Clause 149 is linked with clause 148 to which the Committee has just agreed. Clause 148 enables the Trade Practices Commission to obtain and retain custody of any document which had been given to or was held by the Commissioner of Trade Practices under the existing legislation. I want to emphasise that not all but most of this documentation was obtained by the giving of an assurance by the previous Government that it would be kept confidential. The purpose of our amendment is to ensure that that confidentiality is preserved. I ask honourable senators to look at what is contained in clause 149. The clause states:

A member of the Commission or a member of the staff assisting the Commission shall not, either directly or indirectly, except in the performance of a duty under or in connection with this Act-

make a record of, or divulge or communicate to any person, any information concerning the affairs of any person acquired from-

a document, copy or extract referred to in section 148: or

a document acquired by any person by reason of any office or employment under or for the purposes of the Trade Practices Act 1965, or that Act as amended, or the Restrictive Trade Practices Act 1 97 1 , or that Act as amended; or

produce to any person such a document, copy or extract.

The clause goes on to state:

A member of the Commission or a member of the staff assisting the Commission shall not be required to produce in a court a document, copy or extract referred to in sub-section ( 1 ), or to divulge or communicate to any court any information concerning the affairs of any other person acquired by him from such a document, copy or extract -

These are the crucial words-

. except when it is necessary to do so for the purposes of, or of a proceeding under or arising out of, this Act.

What we have is a scheme under which the Trade Practices Commission can virtually hold and use the material which is held at the present time by the Commissioner of Trade Practices. We do not take any exception to that. It is a sensible and useful course. It is quite clear from what is outlined in clause 149 that that material is to be kept confidential. It is material which can be used for the purposes of the Trade Practices Commission, but members of the Commission or members of the staff of the Commission are not to be able to divulge it to any unauthorised person. Furthermore, if in an ordinary civil action or an ordinary criminal action in the courts this material was sought from a member of the Commission, he could say that he was not allowed to divulge this material in court because clause 149 (2) precludes him from producing it in court. So the secrecy and the confidentiality are clearly to be preserved until we come to any proceedings which may arise out of this Act. What I think is the vice of these words and why we want to have them removed from the legislation is that people who are called upon to give confidential information to the Commissioner of Trade Practices under the existing legislation can find that very information used in court proceedings against them. Naturally we are concerned to ensure that that situation does not exist.

When we were in Government we believed that we managed to give some teeth to that earlier legislation by inviting people to give their agreements and other documentation to the Commissioner of Trade Practices. Such people were told that the material which was received would be kept confidential and that when the Commissioner of Trade Practices had to consider whether such an agreement was or was not contrary to the public interest there would be consultations. If, after those consultations, the parties to the agreement decided to discontinue their agreement that was the end of the matter and the agreement was never revealed. But if the parties decided to contest the Commissioner’s opinion and the matter went before the Trade Practices Tribunal, those parties went before the Tribunal with the knowledge that what they had given to the Commissioner could be used against them. But they had the choice. They knew that if they wanted to defend their agreement the whole documentation would become public. If they wanted to desist from the practice and behave consistently with the public interest their particulars were not made public. That was the system which operated. It seems to me that whether or not the parties to the agreement like it and irrespective of their wishes or inclinations, this material can be used in proceedings under this legislation, and I think it is quite wrong. I ask the Attorney-General to reflect upon the enormity of this Government’s taking action which repudiates a promise of confidentiality given by a previous Government.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I do not know that we should become so concerned about this. If what is in this Bill is bad, then so too was the earlier provision. We have been following a precedent set by Senator Greenwood because the legislation that he brought in in 1971 had exactly this kind of provision in it. In drawing up this Bill the draftsman apparently followed the Bill introduced by Senator Greenwood in 1971. Although the Opposition has been fulminating against the dreadful things that have been done under this -

Senator Greenwood:

– We never had offences like monopolisation, exclusive dealing or price discrimination.

Senator MURPHY:

-You are not talking about the offences. You are talking about the confidentiality of information. Section 34 of the Restrictive Trade Practices Act 1971, which you introduced, states in part:

A person to whom this section applies shall not be required to produce in a court the Register or any document relating to the affairs of any other person of which he has the custody, or to which he has access, by virtue of his office or employment under or for the purposes of this Act, or to divulge or communicate to any court any information concerning the affairs of any other person obtained by him by reason of any such office or employment, except when it is necessary to do so for the purposes of, or of a prosecution under or arising out of, this Act.

There is the precedent. We accepted it but now the Opposition is saying that this is a very dreadful thing. It is not enough for the Opposition to say that there are other offences under this legislation. The question is: What is the proper provision in respect of confidentiality of information? The provision in this Bill follows exactly in the path that was set previously. If the Opposition is saying that some undertakings were, in effect, given, then the same kind or principle is being pursued here.

We cannot see any substance in what the Opposition has suggested. The same approach has been made to the question of confidentiality as was previously taken. Exceptions have been made. A person has to yield up documents when it is necessary to do so for the purposes of court proceedings. I think that is reasonable. Even the former President Nixon had to yield up documents or tapes in certain circumstances and one would think that if in those circumstances confidentiality and privacy had to go it is reasonable that they should go here. That is the view that the previous Government took and that is the view that is expressed in this legislation. The approach that was previously adopted is the same as that which is expressed in this legislation.

Senator MISSEN:
Victoria

– I would suggest to the Attorney-General that even the precedent which we heard him read out, and on which Senator Greenwood commented, refers to a document being produced in a ‘prosecution’ under the Act. In this Bill the reference is much wider. Clause 149 (2) says that a person may not be required to produce in a court a document except when it is necessary to do so for the purposes of, or of a proceeding under or arising out of, this Act’. That could involve an action for damages by a competitor of the company which has placed in the hands of the Commissioner secret and confidential information. It has no limitation to a prosecution. It obviously covers any sort of court action that arises under this Act. There obviously could be a situation where a competitor claiming damages could then forcein contradistinction to the undertakings that were given when these documents were filedthe production of these documents and gain benefit not only for the purposes of this Bill but also for the purposes of business competition or his own economic advantage and so on.

I would suggest to the Attorney-General (Senator Murphy) that the precedent referred to is not phrased in the same words. Certainly this clause goes far beyond that and would make possible an unfortunate situation giving economic advantage to persons who happen to ask questions and get documents produced in this way.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– Surely the guardian of this matter is the court. If honourable senators opposite read the provision they will find it is directed to what the person is liable to do if required by a court. The member shall not be required to produce anything in court, except when it is necessary to do so for the purposes of, or of a proceeding under or arising out of, this Act. So, apart from proceedings under this Act, documents are not to be produced. Surely the court itself will be careful of the proper considerations of confidentiality and so forth. We are not talking about throwing documents out like confetti in the streets. A provision in the Bill protects confidentiality and prevents documents being required to be produced by a member of the Commission. A member is not to produce documents even to any other court, except when a court under this particular Bill- and for the purpose of this Bill- requires a member of the Commission to produce that document. Honourable senators opposite speak as if somehow the information were going to be flooded about.

The courts are very astute to protect this kind of confidentiality in a proper case. Is the Opposition suggesting that somehow the courts are going to act wrongly and require a member of the Commission to produce documents for some extraneous purpose or use the documents wrongly? We think that the provision is reasonable enough. I bring the attention of honourable senators back to the previous matter of prosecutions. In the Bill there are proceedings in the control of the courts and the same kind of principle is being applied in this clause. The documents would not be required by any court except the courts conducting and dealing with proceedings under this Act. An exception can be made where the court, in its proceedings under this Act, requires a member of the Commission to produce documents. We think it is a reasonable and proper provision. It seems that members of the Opposition are being over-cautious and wrong in not trusting the approach that is being made here, together with the well known caution and zeal of the court to protect the confidentiality of business affairs in appropriate cases.

Senator Missen:

– All I am putting to the Attorney-General is that a court may not know the significance of these documents when they are produced and the significance they would have for parties to the litigation.

Senator MURPHY:

– It is their business to know and objections can be taken. The matter can be argued and no doubt would be. The court can examine the documents and assess the significance and also can be told the significance of them.

Senator GREENWOOD:
Victoria

– I wonder if the Attorney-General would inform me of the precise provision of the Act of 197 1 to which he earlier referred.

Senator Murphy:

– I referred to sub-section (3) of section 34.

Senator GREENWOOD:

-With all due respect to the Attorney-General, I think that to equate that provision with the provision with which we are now concerned is to compare matters which are completely unlike. The obligation under section 34 was to preserve the secrecy of the material which was placed with the registrar. As Senator Missen has pointed out, the only occasion when it could be divulged was for the purposes of a prosecution arising out of the Act. The prosecutions arising out of that Act were few and far between and were for breach of statutory provisions contained in the Act. That is totally different from the purposes for which these documents could be used under this legislation. We seek to remove the words:

Except when it is necessary to do so for the purposes of or of a proceeding under or. arising out of this Act.

Can honourable senators imagine the types of proceedings? We have removed from the Act the provision in clause 76 relating to pecuniary penalties, but I imagine that, in the consultations which must flow following that decision, some provision will take the place of clause 76 when the Attorney-General has an opportunity to consider it. I submit to the Senate that in that area it is far better to ensure that the confidentiality is preserved than to open wide the gates to the misuse of information.

If we examine the type of proceedings what do we see? We see proceedings by the AttorneyGeneral, by the Commission or by a private person. The Attorney-General could ask for this material to be produced and there would be absolutely no restriction upon its use once it became public material in the court. The member of the Commission who was called upon to produce it would have absolutely no defence. A private individual suing a company which he alleges has engaged in the practice of monopolisation, price discrimination or exclusive dealing or which has entered into a contract in restraint of trade under which that individual has suffered loss, could subpoena a member of the Commission to produce all documents relating to the hearing which was then in question. That subpoena would require the member of the Commission to attend before the court. If there was any material relevant to that particular action there would be no answer which the member of the Commission could raise, or that the person whose confidential documents were being exposed could raise, to prevent the court from ensuring that in the proceedings before him the ordinary rules were observed.

The magnitude of what is involved here is absolutely immense. It is totally different from the situation which arose under the earlier Act. Indeed, if the earlier Act was capable of a wider application this would appear reasonable- and that wider interpretation only now appears to be the situation, that would be a good reason for saying that that earlier provision ought to have been amended. As I said, they are totally unlike. I repeat the position I stated before: To allow confidential material which was secured on the promise of secrecy to be used- I would say misused’- by allowing it to be brought into court proceedings is totally wrong. I can only suggest to the Attorney-General that it is tantamount to this Government repudiating the basis upon which the previous Government brought its legislation into operation.

Question put:

That the words proposed to be left out (Senator Greenwood’s amendment) be left out.

The Committee divided. (The Chairman- Senator J. J. Webster)

AYES: 31

NOES: 29

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

Senator GREENWOOD:
Victoria

– The point made by the Attorney-General (Senator Murphy) about clause 134 is acknowledged with respect to the points he made about clause 149(3).

Clause 149, as amended, agreed to.

Clauses 150 to 154- by leave- taken together and. agreed to.

Clause 155.

7 ) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorised officer for inspection, is not admissible in evidence against the person-
1. a ) in the case of a person not being a body corporate- in any criminal proceedings other than proceedings under this section; or
2. in the case of a body corporate-in any criminal proceedings other than proceedings under this Act.

Senator GREENWOOD:
Victoria

– I move:

I will explain what that means. Clause 155 relates to the compulsory powers of the Commission to obtain information, documents and evidence. It is one of those provisions about which there can be strongly held differing views. It is a power of enormous import. The Commission may require a person to attend before a member of the Commission, require questions to be answered and material to be produced. If that person does not comply he is liable to a penalty. It is the sort of power which even the police forces of this land do not have when they are investigating serious crime. I think that is the proper standard to be used. Even in the case of murder or other heinous crime in the community the police must respect the right of an individual to remain silent. In the area dealt with in this Bill that right is not respected; it is substantially qualified. The vexing problem in this whole area is this: What are the appropriate circumstances when a person may not be entitled to remain silent? I know that views are held strongly as to the propriety of compelling a person to give any information under any circumstances. In the Commonwealth arena, under the Income Tax Act a person can be compelled to appear before the Commissioner of Taxation, or one of his agents, and answer whatever questions are put to him and provide whatever material is requested. I recall that there are similar provisions under the National Health Act. An area where this matter has been of concern over the years is in respect of inspectors under the Companies Act. In even more recent times the same type of power exercised by Senate committees has aroused controversy amongst interested people in the country. Now we have a provision in the trade practices legislation which gives this power to the Commission to require the production of documents.

My recollection is that a power of this general character was in the earlier legislation out, of course, the earlier legislation was a different sort of legislation. The earlier legislation was concerned with the obtaining of information with a view to having it examined by an administrative officer and then, if a person was to be proceeded against, he was brought before a tribunal and a decision was made as to whether his conduct was against the public interest. Thereafter, if he misbehaved, there could be an injunction. That is one distinction between the provision as it existed under the prior legislation and as it is contained in this Bill.

The attitude of the Opposition is not to challenge the broad provisions of this clause. We accept, albeit reluctantly, the power of the Commission to obtain information in this way. But we want to limit that provision which is usually contained in these clauses so that information obtained in this way shall not be used in court proceedings against a person except in proceedings under this very clause. In short, if a person does not attend when he is called upon to do so or he does not produce documents when he is asked to do so he can be proceeded against for an offence under the clause and any material which is obtained is able to be used in those proceedings. But the material which is obtained is not able to be used in any other proceedings. The provision contained in sub-clause (7) states:

A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorised officer for inspection, is not admissible in evidence against the person- (a) in the case of a person not being a body corporate- in any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporatein any criminal proceedings other than proceedings under this Act.

So one can find under this Bill, as it is cast, that the material could be used for the purposes of any of the proceedings under the legislation. That is a provision of enormous import. It is not limited to an offence against the clause as it is in the case of an individual; in the case of a company it shall not be admissible in any criminal proceedings other than proceedings under this legislation. So under Part V the Commission could compulsorily require information in the manner that is permitted by this clause and then use the information in criminal proceedings against that person.

Senator Murphy:

– Is that bad?

Senator GREENWOOD:

– Yes, it is bad.

Senator Murphy:

– Then why did you have it in the Restrictive Trade Practices Act?

Senator GREENWOOD:

-Because it is a different type of provision entirely- because the substance of the provisions contained in Part V of the legislation are vastly different from provisions contained in the earlier Restrictive Trade Practices Act regarding the filing of certain documents. We, for our part, believe that the appropriate amendment is to ensure that the information cannot be used in proceedings against a person except in proceedings under the clause. We think that otherwise it is opening these provisions far too widely. This approach is consistent, in a sense, with the decision of the Senate on the last amendment.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– It is amazing how attitudes change. But in section 166 of the Restrictive Trade Practices Act- I am talking about the existing law- are provisions for the gaining of information by the Commissioner for Trade Practices. It states:

Where the Commissioner has reason to believe that a person is capable of giving information or producing documents relating to matters that constitute, or may constitute, an examinable agreement, an examinable practice or the practice of resale price maintenance, he may, by notice in writing served on that person, require that person to furnish

. such information:

The section continues:

A person -

This refers to either a corporate body or a natural person- is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document might tend to incriminate him, but his answer to any question asked in the notice, or his furnishing of any other information in pursuance of the notice, is not admissible in evidence against him in any criminal proceedings other than proceedings under this Act.

Senator Greenwood was responsible for the introduction of that section. It referred to criminal proceedings. He followed the well-known practice that in fields such as this there must be an investigatory function or else the body will not work. That is why he included that provision. He followed the well-known practice. Even the report of the Senate Select Committee on Securities and Exchange, brought down a few weeks ago, referred to the same kind of consideration. It stated:

In considering the powers which should be vested in such a body it is useful to point to another of the lessons in this case. As our inquiry progressed it became clear to us that we could not rely upon letters, public announcements, public statements, sworn testimony, statutory declarations or affidavits to reveal the truth. We found that the reports and statements by the directors and geologists were evasive, distorted, exaggerated and simply untrue in important respects. If a regulatory authority is to have reasonable success in protecting the markets from deceptive practices such as insider trading it must have the power to inquire and obtain all relevant documents and records and it must expect to use that power.

– No. It is the use of information for criminal prosecutions.

Senator MURPHY:
NEW SOUTH WALES · ALP

Senator Wright:

– Then do not try to lead all of us into the wilderness.

Senator MURPHY:

-Is the honourable senator going to venture to put in his oar on what is the law in the other field, which is not before us? Mr Chairman, I suggest that the clause is a sensible one. We have carefully considered what is in the previous legislation and we have modified this provision in the direction of completely protecting the citizen. We think that the provision as it stands is necessary for the effective working of the legislation.

Question put:

That the words proposed to be left out (Senator Greenwood’s amendment) be left out.

The Committee divided. (The Chairman- Senator J. J. Webster)

AYES: 30

NOES: 30

AYES

NOES

Question so resolved in the negative.

Clause agreed to.

Clause 156 agreed to.

Proposed new clause 1 56a.

The CHAIRMAN (Senator WebsterOrder! I have been given a copy of an amendment proposed to be moved by Senator Murphy which, I take it, supersedes an amendment previously circulated by him. Has the new amendment been circulated, Senator Murphy?

Motion (by Senator Murphy) agreed to:

After clause 1 36 insert the following new clause: 156a. (1) Where proceedings are instituted under this Act in the Court by the Attorney-General or the Commission, Australia or the Commission is liable to make discovery of documents in like manner as any other party to proceedings in the Court.

Where a corporation makes an application to the Commission for an authorisation, or the Commission gives a notice under section 91 (4) to a corporation to which an authorisation has been given, the Commission shall, at the request of the corporation, furnish or disclose to the corporation

a copy of every document, and particulars of all information, that has been furnished to, or obtained by, the Commission in connexion with the matter to which the application or notice relates; and

a copy of any other document, and particulars of any other information, in the records of the Commission and relevant to the exercise of the powers of the Commission in the matter to which the application or notice relates that comes to the attention of the Commission in connexion with that matter, other than documents or information obtained from the corporation.

If the Commission does not comply with a request under sub-section (2), the Court shall, subject to sub-section (4), upon application by the corporation who made the request, make an order directing the Commission to comply with the request.

The Court may refuse to make an order under subsection (3 ) in respect of a document or part of a document, or in respect of any information, if the Court considers it inappropriate to make the order by reason that the disclosure of the contents of the document or part of the document, or the disclosure of the information, would prejudice any person, or for any other reason.

Before the Court gives a decision on an application under sub-section (3), the Court may require any documents to be produced to it for inspection or any information to be furnished to it.

An order under this section may be expressed to be subject to conditions specified in the order.’.

Clauses 157 to 161- by leave- taken together, and agreed to.

Clause 162.

Senator GREENWOOD:
Victoria

– I move:

Those words appear in the Bill as one of the ingredients of the prosecution provision. Proceedings are not to be taken in the court unless the Attorney-General has consented to their being taken. I do not know what attitude Senator Murphy takes to these provisions, but I think they are provisions which, in form, are quite wrong. I believe that there is a general power inherent in the law officer under which, if proceedings are instituted, he can enter his nolle prosequi and those proceedings are not further continued. If that course is followed then I believe that it is incumbent upon the law officer to give the reasons why the proceedings are not followed. I think that this provision in a statuteand there are not many statutes in which this provision exists- ought to be removed as often as it comes before the Parliament. I recall that in the late 1950s the former Lord Chancellor, Lord Dilhorne gave to the House of Commons, when he was a member of that House, a very strong recommendation that the processes of the law are interfered with if the law officer, who is also a political head, is able to decide whether or not particular prosecuting proceedings should be continued. I think that the situation is bad in any area. I know that it has been the general position which has grown up over the years, and I think it ought to be discontinued. I do not know how the Attorney-General treats these provisions, but I invite his consideration of the fact that anything which conduces to selective law enforcement is bad.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

-This is a new-found wisdom or philosophy on Senator Greenwood’s part. I suppose the reason why there are these provisions is that this kind of legislation has to be worked out sensibly. One does not want wildcat prosecutions. It has been pointed out that there may be teething difficulties for a start, and one does not want trade and commerce interfered with in some capricious kind of way. There are prosecutions, and public officials and Ministers are vested with responsibility in this area. These people may change from time to dme, but they have a responsibility for seeing that the law is administered in a sensible fashion, and they are answerable. This is especially important in this area of the law touching trade and commerce and one would not want there to be capricious proceedings. It was for this reason that the former Government took the attitude and put into the law in this very area a provision which I will read to honourable senators. I think Senator Greenwood introduced, presented to this chamber, gained acceptance of and argued for this provision which is now in the existing law. I refer to section 164, and I notice that Senator Greenwood nods his head. But the honourable senator did not make any reference to the fact that what has been done here is following up -

Senator James McClelland:
NEW SOUTH WALES · ALP

-Will the

Attorney-General read the section?

Senator MURPHY:

-Section 164 (5) states:

Proceedings before the Court in accordance with this section-

may be instituted by summons upon information: and

b ) shall not be instituted except with the consent in writing of the Attorney-General or of a person authorised by the Attorney-General, by writing under his hand, to give such consent.

Senator James McClelland:
NEW SOUTH WALES · ALP

– This provision was passed when Senator Greenwood was the Attorney-General?

Senator MURPHY:

-Yes.- The section was agreed to on the basis that it was considered necessary to have such a provision in this area. It has been applied in certain other areas. It seemed to us to be a wise provision. It is the state of the law. Now that this legislation is being considered again Senator Greenwood says how terrible it is that we propose to follow and virtually to re-enact what is the existing law of the land and to continue with the same principle.

With respect, we think that Senator Greenwood has not shown a case. He said before that he was wrong on something. Is he saying that not only was he wrong on this matter but also that he sat silently and wrongly all through this time? Even after he ceased to be Attorney-General, he did not turn around and race in with an amendment and say: ‘Let us change that law; I forgot to do it while I was in office’. He did not say that he would bring in a private member’s Bill to alter this dreadful aspect of the law. No such thing was done by him. I think it would be wise, certainly during the period when this legislation is being ushered in- and I think that Senator Greenwood would accept this proposition- to provide that the proceedings ought to be with consent, otherwise there is a danger of some kind of capriciousness and so on. I think it is proper to have provisions such as this rather than endeavour to use what Senator Greenwood has referred to as an alternative. If this section were taken out of the Act I believe that somehow you would have to have a messy kind of intervention and taking over of proceedings by an AttorneyGeneral. Senator Greenwood thought that this was a better way to do it. But the present provision is not an unusual provision. Again we think it is a proper one.

Senator GREENWOOD:
Victoria

– I rise simply to say that what the AttorneyGeneral has said is, I think, fair comment and I accept it in the light of what the facts reveal. All I say is that if I came away with one firm conviction when I ceased to be Attorney-General it was that this type of provision ought not to be in our law. I do not know what Senator Murphy might feel in the years to come, but I think it is an unwise man who cannot admit to error when he becomes quite confident that there was error in the past.

Question resolved in the negative.

Clause agreed to.

Clauses 163 to 167- by leave- taken together and agreed to.

Clause 168.

1 ) The Superior Court of Australia shall not commence to exercise any jurisdiction conferred on that Court by this Act before the day fixed by Proclamation under sub-section 2 ( 2 ) of the Superior Court of Australia Act 1 974 as the day on which that Court is to commence to exercise its jurisdiction.
If the commencing date is earlier than the day referred to in sub-section ( 1 ), then-
1. until that day, any action, prosecution or other proceeding that could have been instituted in the Superior Court of Australia under this Act if that Court had commenced to exercise its jurisdiction under this Act may be instituted in the Australian Industrial Court;

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– Clause 168 deals with the jurisdiction of the court and we thought that it could be expressed in somewhat clearer terms. It is a technical way of conferring the jurisdiction that is intended under the legislation to be conferred on the Superior Court of Australia. The Superior Court of Australia Bill still has to be dealt with. We cannot be entirely certain of the fate of it. I thought it preferable to put beyond any question how the matter would flow; otherwise some ingenious lawyer might suggest that because the clause was predicated upon the Superior Court it cannot operate in respect of the Industrial Court at all, not merely until such time as the Superior Court is established. So it is a simple technical amendment to make that very clear. I move:

There is no change in substance; it is merely a change in the expression of what is in the legislation already.

Senator GREENWOOD:
Victoria

– The Opposition has reservations about this, but recognises that until the issue of the Superior Court of Australia is resolved the Government is in a difficulty. This is one way of resolving the difficulty. I only say, by way of explaining our attitude, that the general view which the Opposition has is that as far as possible we ought to have one system of courts which involves the Supreme Courts of the States being the places in which offences against an Act of this character ought to be prosecuted. That is the Opposition’s view, as against the Superior Court concept which is advanced by the Government. I imagine that, if the Superior Court proposal were to be abandoned by the Government or not accepted by the Parliament, consideration would have to be given to whether the Industrial Court is the appropriate court for these proceedings to be instituted in. I state these facts at the present time to indicate the broad outlook which the Opposition has to this amendment. We do not oppose it in the circumstances.

Amendment agreed to.

Amendment (by Senator Murphy) agreed to:

Add the following sub-clause:

The jurisdiction of the Australian Industrial Court by virtue of this section is exclusive of the jurisdiction of other courts to the extent to which the jurisdiction of the Superior Court of Australia under this Act is expressed to be so exclusive. ‘

Clause, as amended, agreed to.

Clauses 169 to 171- by leave- taken together, and agreed to.

Postponed clause 47.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– As has already been indicated, the Opposition amendment to this clause gave cause for concern inasmuch as it appeared to reduce the effective operation of sub-clauses (3) and (4). On examination of the drafting of the amendment it has appeared that the cause for this concern is the use of the words in relation to’. Those are rather loose words and they have caused some apprehension that the amendment might operate so as to provide an intended exemption for a body corporate dealing with an unrelated person and requiring that person to restrict other dealings that he has to a subsidiary of the body corporate. In the form in which it has been proposed the amendment would probably do this because it exempts conduct of the body corporate ‘to or in relation to ‘. It is subsidiary. Presumably the intention behind the amendment was to exempt an exclusive dealing restriction that a corporation imposed on its own subsidiary.

An amendment that did no more than that would be unobjectionable but the Government could not agree to an amendment that permitted a corporation to impose an exclusive dealing restriction on a third party, requiring that party to deal with a corporation subsidiary. Yesterday I gave an example of that. Parliamentary Counsel has now redrafted the proposed amendment to ensure that the exemption is kept within the acceptable limits I have mentioned. Last night when the Opposition amendment was being discussed by the Committee, Senator Greenwood referred to the fact that a similar provision already existed in relation to clause 45. He asked what different considerations existed in relation to clause 47. The answer is that the provision in clause 45 (6) is expressly confined to contracts, etc., the only parties to which are related bodies. If some other person is a party to the contract the exemption is inapplicable. That is the sort of position which should exist under any clause inserted in relation to clause 47. That would obtain under the provision which I would be prepared to move and which has been circulated. I move:

Senator GREENWOOD:
Victoria

-The Opposition appreciates the attention which has been given to our original amendment. We welcome what the Attorney-General (Senator Murphy) has said. We endorse this proposal.

The CHAIRMAN:

- Senator Greenwood, do you seek leave to withdraw your amendment?

Senator GREENWOOD:

-Yes, I seek leave to withdraw my amendment.

The CHAIRMAN:

– Is leave granted? There being no objection, leave is granted.

Amendment- by leave- withdrawn.

The CHAIRMAN:

– The question is: ‘That the words proposed to be inserted by Senator Murphy’s amendment be inserted’.

Amendment agreed to.

Clause, as amended, agreed to.

Postponed clause 5 1 .

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– We appreciate what has been put by Senator Greenwood. It is intended to be helpful to us because there may be problems. There is always the possibility that something might have been overlooked. On the other hand, this provision for exemption is of such a wide character. There is no doubt that a lot of people and a lot of commercial conduct will be affected by this legislation. That is the intention of it. There will be intense pressure by those who are affected by requiring them to refrain from the comfortable kind of practices in which they have been indulging. They will be exercising pressure upon everyone. Really, we think the legislation should stand as it is. If we strike any difficulties- I concede the possibility of that- then it will be better that the difficulties be overcome by coming back to Parliament rather than by way of exemption by regulation.

When moving his amendment Senator Greenwood indicated that it was a curious thing for the Opposition to do to offer such a capacity to remodel, in effect, by way of regulation . the whole of the impact of the legislation. It is a curious thing, and really in a sense it puts in jeopardy or puts in question virtually the whole of that Part of the legislation, because those who are affected will say: ‘Well, here is an escape clause that enables anyone to escape from this if only we can prevail upon the Government to make some regulation’. We think that it would be better if such a question arises, for the matter to come back to the Parliament. I will admit that there certainly is some weight in what the Opposition is putting in relation to this issue. It is an argument of great convenience but on the whole such a provision would introduce an element of great uncertainty into this area. On balance, and after some consideration, the Government would prefer not to accept the offer that is being made to allow the basic provisions of the legislation to be undermined by a mere regulation.

Senator GREENWOOD:
Victoria

– The Attorney-General (Senator Murphy) graciously acknowledges that this was an offer by the Opposition to provide a facility whereby the pitfalls which we think this legislation will promote in some areas could be speedily overcome. In a sense, it is unusual for an Opposition to provide such an accommodation. I sense the Attorney-General’s concern from the way in which he expressed himself. We did mean our offer as a means of assistance. I can assure him, however, that we will not carry our assistance to the extent of dividing the Committee on the issue.

Senator MURPHY:
Attorney-General · New South Wales · ALP

– I omitted to add that the provision for authorisations and clearances will on principles set out no doubt remove most of the practical problems which would arise but for their inclusion. The Commission will be available to say: ‘It is all right to give the authorisations, to give the clearances’, and it would be a rather rare situation which we think might need the exercise of some alteration. In effect, what the Opposition is proposing is that we write in a virtual amending power by way of regulation in relation to the greater part of the legislation. That is an unusual offer but, in the circumstances, such an alteration would be better dealt with, as I see it at the moment, by way of amendment of the Act. If we find that an alteration is necessary we may reconsider that proposal. However, at this stage we would prefer to rely upon the authorisations and clearances provision. Above all, one would think that it should not be left perhaps to some other government at some stage simply to destroy the legislation by the use of the regulation-making power.

Senator SHEIL:
Queensland

– I rise only to seek reassurance from the AttorneyGeneral (Senator Murphy) about the application of part of this clause. I am concerned about clause 51(l)(b). Does the AttorneyGeneral require me to read it? I think we all know what it is about.

The CHAIRMAN:

– As long as the AttorneyGeneral understands the point you are making, it will not be necessary to read it.

Senator Murphy:

– You are all right.

Senator SHEIL:

– I wish to express concern on behalf of certain rural co-operative industries, such as those concerned with bulk handling, and various boards which feel that the legislation could be used to their disadvantage.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– Clause 171 subclause (2) provides:

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.

Sub-clause (3) spells this out in relation to other matters. A provision is available in that clause for the making of regulations which would deal with the area of concern to the honourable senator.

Amendment negatived.

Clause agreed to.

Title agreed to.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I move:

I do so in order that some consideration might be given to clause 76 in the intervening period. It would be impossible to give consideration to that clause while we are dealing with other clauses. I ask that the Committee report progress and ask leave to sit again at 8 p.m.

Senator Withers:

– Why not for a later hour?

Senator MURPHY:

-I have said 8 p.m. so that we can have a specific time.

Question resolved in the affirmative.

Progress reported.

page 1008

CONCILIATION AND ARBITRATION BILL 1974

Second Reading

Debate resumed from 13 August (vide page 795), on motion by Senator Bishop:

That the Bill be now read a second time.

Senator TOWNLEY:
Tasmania

-I seek leave to make a brief statement.

The PRESIDENT:

-Is leave granted for Senator Townley to make a statement? There being no objection, leave is granted.

Senator TOWNLEY:

– I should like to say that unfortunately I have not had time to examine this Bill as fully as I would like. I think it is essential that in an evenly balanced Senate such as this any Bill is thoroughly dealt with. I think it is essential that we all have time to consider properly the legislation before it is passed by this House. I for one cannot be party to passing legislation before I have had time to deal with it fully. Some Government supporters may say that this is a delaying tactic but I think it is better than passing bad legislation.

We have just seen the passage of a complicated Bill. Many amendments were made to the Bill and need to be presented to the House of Representatives for approval. This, in some ways, is a similar Bill. I have in mind supporting a couple of the amendments that Senator Steele Hall has foreshadowed to me. As the delay that I am foreshadowing is only until the first day of sitting of the Budget session, I feel that it would be wise to do this rather than see the Bill totally defeated. But I foreshadow that my vote will be against the Bill if the adjournment of the debate, until 17 September, which I shall move, is not agreed to. I move:

Senator Bishop:

- Mr President, I seek leave to make a statement.

The PRESIDENT:

-Is leave granted? There being no objection, leave is granted.

– No.

The PRESIDENT:

– There being objection, leave is not granted.

Question put:

That the debate be now adjourned.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 31

NOES: 29

AYES

NOES

Majority

Question so resolved in the affirmative.

Motion (by Senator Bishop) proposed:

That the resumption of the debate be made an order of the day for the next day of sitting.

Amendment (by Senator Townley) proposed:

Leave out ‘next day of sitting’ and insert ‘first day of sitting in September’.

Question put:

That the words proposed to be left out be left out.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 30

NOES: 30

AYES

NOES

Question so resolved in the negative.

Question put:

That the resumption of the debate be made an order of the day for the next day of sitting.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 30

NOES: 30

AYES

NOES

Question so resolved in the negative.

page 1010

CONCILIATION AND ARBITRATION BILL (No. 2) 1974

Second Reading

Debate resumed from 13 August (vide page 798), on motion by Senator Bishop:

That the Bill be now read a second time.

Motion (by Senator Townley) proposed:

That the debate be now adjourned.

– No.

The PRESIDENT:

– There being dissent, leave is not granted.

Suspension of Standing Orders

Motion (by Senator Murphy) agreed to:

That so much of the Standing Orders be suspended as would prevent Senator Steele Hall from making a statement.

Senator STEELE HALL:
South AustraliaLeader of the Liberal Movement

– I thank the Senate for the permission to make a very brief statement. I believe that there are 2 points at issue. It is one thing to meet the convenience of a prospective speaker to a piece of legislation and to adjourn the debate on that legislation, but in my parliamentary experience it is quite another thing to take out of the hands of the mover of the motion the time to which the debate on that legislation will be adjourned. To me, those things are quite separate. This action is dictatorial in the extreme. It is one thing to arrange an adjournment to meet the convenience of the prospective speaker, but to say to the mover of the motion that the debate on the legislation shall be adjourned to a date that the opposing side dictates is quite a separate issue.

I supported Senator Townley, as I probably would support him tomorrow in order to adjourn this legislation again. However, in my short time here I have not seen anyone dictated to as to the date to which the debate on legislation shall be adjourned. I do not think it is a good principle to which to adhere. That is the reason I voted as I did. I wanted to explain that because there seems to be some confusion. I believe it is a parliamentary convention which should be observed even though the numbers are against the particular desire.

Question put:

That the debate be now adjourned.

The Senate divided. (The President- Senator the Hon. Justin O’Byrne )

AYES: 31

NOES: 29

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

Sitting suspended from 6.6 to 8 p.m.

Motion (by Senator Bishop) proposed:

That the resumption of the debate be made an order of the day for the next day of sitting.

The PRESDDENT- The question is that the motion be agreed to. Those in favour say aye, to the contrary, no. I call Senator Townley.

Senator TOWNLEY:
Tasmania

-Mr President -

Senator Cavanagh:

- Mr President, he was not in his place when you put the question.

The PRESIDENT:

– I have called Senator Townley.

Senator Cavanagh:

– Yes, after you put the vote.

The PRESIDENT:

– I had not declared the result of the vote.

Senator TOWNLEY:

– I move:

Question put:

That the words proposed to be left out (Senator Townley’s amendment) be left out.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 29

NOES: 27

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

Question put:

That the words proposed to be inserted (Senator Townley’s amendment) be inserted.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 30

NOES: 28

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

Question put:

That the motion, as amended, be agreed to.

The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)

AYES: 30

NOES: 29

Majority……. 1

AYES

NOES

Question so resolved in the affirmative.

page 1013

PLACING OF BUSINESS

Motion (by Senator Murphy) agreed to:

That the resumption of the consideration of the Trade Practices Bill 1974 in the Committee of the Whole be made an order of the day for a later hour this day.

Motion (by Senator Douglas McClelland) proposed:

That consideration of Order of the Day No. 4 be postponed until after consideration of Orders of the Day Nos 5, 6, 7, 8 and 9.

Senator WITHERS:
Western AustraliaLeader of the Opposition

– I wish the Manager of Government Business in the Senate (Senator Douglas McClelland) had told me a bit earlier of what he intended to do. Senator Wright was prepared to speak immediately. I will be ready, I suppose, to speak on orders of the day Nos 5, 6, 7, 8 and 9 in two or three minutes time. But in my usual co-operative spirit of attempting to help the Government, we will agree to the motion.

Senator GREENWOOD:
Victoria

– Before this matter is put to a vote- and I hope that my leader, Senator Withers, is given the time for which he has asked- I think it should be pointed out that we are taken a little by surprise because we had intended, according to a motion moved earlier this day, to deal with the trade practices legislation. The circumstances which took place earlier probably explain why we are not proceeding with this legislation. I notice from the indication given to me from the Government side that it would like me to desist from my remarks on this motion. I ask leave to continue my remarks.

The PRESIDENT:

– Order! Is leave granted? There being no objection, leave is granted.

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

(8.22)- Mr President, I now seek leave to withdraw my motion. I understand that Senator Murphy is ready to proceed on the Trade Practices Bill.

Motion- by leave- withdrawn.

page 1014

TRADE PRACTICES BILL 1974

Bill reported with amendments.

Adoption of Report

Motion ( by Senator Murphy) proposed:

That the report of the Committee be adopted.

Senator GREENWOOD:
Victoria

-I would ask for some clarification from the AttorneyGeneral (Senator Murphy) as to precisely what is happening because it seems that we on the Opposition side are awaiting some proposal to come forward from the Government. I believe that the procedures now being followed will facilitate that. I just ask to be satisfied, and I am sure that my colleagues on this side of the chamber likewise await to be satisfied, that that is happening. I ask for some clarification.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I assure the honourable senator that I do not propose to leave the Opposition in the situation that it has created. I propose to take steps to enable the Committee to get out of that situation because I think it is in everyone’s interest that I do so. I add to my motion for the adoption of the report of the Committee the following words:

That the Committee have leave to reconsider clauses 76 and 77 and proposed new clause 156a.

I do so because the suggestion made to deal with clause 76 will involve some slight amendment to clause 77. Also it appears that there might be a modification of clause 1 56a which will commend itself to the Committee.

Senator GREENWOOD:
Victoria

– It may be that I have to ask for leave to speak on this matter. If necessary, I seek leave.

The PRESIDENT:

-Is leave granted? There being no objection, leave is granted.

Senator GREENWOOD:

-The Opposition will not oppose this motion. As a result of what occurred in the Committee stage we appreciate that a clause which the Government regards as very important and which, quite objectively, we see as an important clause to the legislation, was deleted. Our view in voting for the deletion of the clause was that the Government would seek to bring in a new clause in some form which would seek to overcome the problems and difficulties which we experienced in the Committee stage. Obviously this is what the Government is proposing. We await the explanation of what is to be put forward and therefore we will not oppose this motion.

Question resolved in the affirmative.

In Committee

Reconsideration of clauses 76 and 77 and proposed new clause 156a.

Clause 76.

A person who-

contravenes a provision of Part IV;
b) attempts to contravene such a provision;
aids, abets, counsels or procures a person to contravene such a provision;
induces, or attempts to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;
is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
f ) conspires with others to contravene such a provision, is, if the Court so orders, liable to pay to Australia such pecuniary penalty (not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies) as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Superior Court of Australia or the Australian Industrial

Court in proceedings under this Part to have engaged in any similar conduct.

Clause 77.

( 1 ) The Attorney-General or the Commission may institute a proceeding in the Court by way of civil action for the recovery on behalf of Australia of a pecuniary penalty referred to in section 76.
1. 2 ) An action under sub-section ( 1 ) may be commenced at any time after the contravention.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I think the amendments have been circulated. It is proposed that each of them be moved by the Government. The amendment to clause 76 is tied with the amendment to clause 77. I understand that there has been some discussion on these amendments and that a compromise solution has been worked out. Perhaps we could deal with clauses 76 and 77 together. I move:

In clause 76, leave out all the words to and including liable’ and substitute,
If the Court is satisfied that a personla) has contravened a provision of Part IV;
1. b ) has attempted to contravene such a provision;
2. has aided, abetted, counselled or procured a person to contravene such a provision;
3. has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;
4. has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (0 has conspired with others to contravene such a provision, the Court may order the person’.
In clause 77 ( I ), leave out-‘ by way of civil action’
In clause 77 (2). leave out-‘ An action’ and substitute A proceeding’.

Senator GREENWOOD:
Victoria

– I have not been privy to whatever discussions have taken place. I am interested to see on the circulated sheet what the Government proposes. I hope if I misinterpret the position I can be corrected by what the Attorney-General (Senator Murphy) says hereafter. The proposed amendment will place in existing clause 76 the words: If the court is satisfied’. Then will be set out matters about which the court must be satisfied. The amendment provides that where the court is satisfied that a person has contravened a provision of Part IV or has done any of the other things which are set out in the amendment the court may order the person to pay to Australia such pecuniary interest not exceeding $50,000 in the case of a person not being a body corporate and $250,000 in the case of a body corporate. Then the clause proceeds as it is in our Bill. It appears to me that this still maintains the civil standard of proof. Where there are words in a statute which say ‘if the court is satisfied’ that does not impute the criminal standard of proof; the court is satisfied on the balance of probabilities. That is the very core of the Opposition’s objection.

If one examines the subsequent amendments which are proposed one finds that the words ‘by way of civil action’ are excluded from the subsequent clause, and it may be that the removal of those words is designed to allay any fears that it is a civil action which is being pursued. It does not allay my fears because by the use of the words ‘if the court is satisfied ‘ the acceptance of a standard of proof on the basis of less than a reasonable standard of doubt follows.

The subsequent clause, clause 78, is not sought to be amended, and it is apparent that criminal proceedings do not lie against a person by reason only that the person has contravened a provision of Part IV. That particular clause goes a long way towards indicating that it is a civil standard of proof which is to be applied in the case of an application by the Commission or the AttorneyGeneral for the payment of a pecuniary penalty. In short, the Opposition’s position remains constant, and we do not depart from it. If by legislation there is imposed upon a person who commits certain conduct an obligation to pay a sum in the amount of $50,000 or $250,000 if it is a company, that constitutes the creation of an offence which ought to be established by the accepted standards of criminal liability in this country. It is not good enough to make an exception and to say that this sort of money is payable to the State when the standard of proof is less than that which is applied in, for example, an ordinary parking offence. It may be that the Government has the numbers to carry this. If it has the numbers, it carries this against the protests and against the vote of the Opposition. We believe that offences of this character must be proved in accordance with the ordinary concepts which have always applied in this country. We object to the change which is proposed.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– Those people who have been concerned with this matter and, indeed, I suppose those who would be affected by it have their legal advisers and they have looked at the matter over the interval. I understand that these alterations- the removal of the words ‘by way of cml action’, the deletion in clause 77 of the further reference to an action, the substitution of the word ‘proceeding’, and the recasting of the clause to the way in which it stands now- are satisfactory to those people. The proposal which I put forward ought to commend itself to the Senate as a reasonable way in which to show that the court will be required to insist upon a strict standard of proof and one that ought to solve the difficulty with which we are faced.

Senator WRIGHT:
Tasmania

– I shall only take a minute of the Committee’s time. The answer put before us by the Attorney-General is completely pretentious and fallacious. He does not tell us who are the people who have been consulted and are satisfied. Therefore what he has said to us is simply nonsense from the point of view of our giving consideration to it. The other matter 1 want to mention is related to the language that is used in the amendment. It states that if the court is satisfied that a person has contravened a provision of the Act, then he is liable to pay Australia such pecuniary penalty not exceeding $50,000 in the case of a person and not exceeding $250,000 in the case of a body corporate. That is still a process for the recovery of a penalty, and it is quite indistinguishable from penalties recoverable by criminal process. Most criminal process gives the alternatives of payment of a pecuniary penalty or imprisonment. The mere fact that there is no alternative to imprisonment here does not alter the nature of the recovery which is of a penalty. I would have thought the strictest standard of proof would be required.

Senator MISSEN:
Victoria

– I wish to add to what has been said. I think if anything this is an insulting suggestion that is now put before the Committee. In fact it is a play with words only to suggest that there has been some real change. What is achieved by taking out the words ‘by way of civil action’. The clause then has to be interpreted as it stands and I do not believe the removal of these words will make any difference. The clause does not have a different meaning by taking out the words ‘an action’ and inserting ‘a proceeding’ in their place. It is constantly found in many areas of legislation, in divorce legislation for example, that the words ‘an action’ or ‘a proceeding’ are often used as alternatives. If anything ‘proceeding’ is a more general word which would cover an action, perhaps commenced by writ, and various other types of acts or proceedings that are instituted in courts.

The proposed change achieves nothing. If the amendment is accepted the clause will not say whether the court has to be satisfied on the balance of probabilities or whether it has to be satisfied beyond reasonable doubt. The whole nature of the amendment, in my view, means that it is even more likely that the court will have to be satisfied only on the balance of probabilities. If anything the amendment moves further away from what was suggested previously. The previous clause was rejected by the Committee and I suggest even more strongly that the Committee ought to reject this amendment.

Senator GEORGES:
Queensland

– I should like to speak for a few moments because of my concern that nothing should be done in a precipitate fashion.

Senator Wright:

– I beg your pardon.

Senator GEORGES:

– I said in a precipitate fashion. Perhaps I should say nothing should be done hastily.

Senator Wright:

– Thank you.

Senator GEORGES:

-Since the future of this vital section of the legislation depends on Senator Townley ‘s understanding of it, and since he has taken the opportunity to consult with both sides, I think we should allow him the opportunity to seek advice and I am giving him that opportunity. It would be unfair, I think, to Senator Townley to vote on this amendment without fully convincing himself of the consequences. It seems now that he has reached the point of understanding and for that reason I will end my remarks.

Question put:

That the words proposed to be left out (Senator Murphy’s amendment) be left out.

The Committee divided. (The Chairman- Senator J. J. Webster)

AYES: 31

NOES: 29

Majority……. 2

AYES

NOES

Question so resolved in the affirmative.

The CHAIRMAN:

-The question now is: That the words proposed to be inserted be inserted’.

Question resolved in the affirmative.

Clause 76, as amended, agreed to.

Senator MURPHY (New South WalesAttorneyGeneral) Mr Chairman, I seek leave to have the 2 amendments to clause 77 put together.

The CHAIRMAN (Senator Webster:

-Is leave granted?.There being no objection, leave is granted.

Amendments agreed to.

Clause 77, as amended, agreed to.

Proposed new clause 156a reconsidered.

Senator MURPHY:
New South WalesAttorneyGeneral · ALP

– I move:

I ask Senator Greenwood whether he has had a look at proposed new clause 156a.

Senator Greenwood:

– Yes.

Senator MURPHY:

-This is a technical clause dealing with the procedure upon discovery in court proceedings. The amendment has been seen by Senator Greenwood. I will not go into all the technicalities. It will clear up what I think we on both sides of the chamber would want in regard to more effective discovery.

Senator GREENWOOD:
Victoria

– We think that this amendment is an improvement on the earlier clause. We offer no objection to it.

Proposed new clause agreed to.

Senator MURPHY:
General · New South Wales Attorney · ALP

– I move:

Mr Chairman, I thank you for the way in which you have conducted the Committee stages of this Bill. It has been a very intricate and very difficult Bill. You, Mr Chairman, mastered the intricacies and dealt most adeptly with the difficulties both in the legislation and the personalities of those who have been dealing with the Bill and in the highest traditions of the Chairman of Committees.

The CHAIRMAN (Senator Webster:

Thank you for your words, Senator Murphy.

Question resolved in the affirmative.

Bill reported with further amendments; report adopted.

Third Reading

Bill (on motion by Senator Murphy) read a third time.

page 1017

PLACING OF BUSINESS

Motion (by Senator Douglas McClelland) agreed to:

That consideration of order of the day No. 4 be postponed until after consideration of orders of the day No. 5. No. 6, No. 7, No. 8 and No. 9.

page 1017

ROADS GRANTS BILL 1974

Second Reading

Debate resumed from 13 August (vide page 802), on motion by Senator Cavanagh:

That the Bill be now read a second time.

Senator WITHERS:
Western AustraliaLeader of the Opposition

– I would ask the Minister if he would be agreeable that we take orders of the day Nos 5, 6 and 7 as a cognate debate.

Senator Cavanagh:

– The answer is yes.

The PRESIDENT:

– There being no objection to a cognate debate, the subject matter of orders of the day Nos 5, 6 and 1 may be discussed together.

Senator WITHERS:

-The Opposition will not vote against the second reading of these 3 Bills, the Roads Grants Bill 1974, the National Roads Bill 1974 and the Transport (Planning and Research) Bill 1974. However, as far as the Opposition is concerned these Bills, as presented by the Government, have 2 glaring defects. Firstlythis is especially in relation to the Roads Grants Bill to which I am directing most of my remarks- the Commonwealth will have the power to approve all decisions on road building projects undertaken by the State and local government authorities. Secondly, taxes and charges raised by elected State governments and elected local governments will have to be spent in a way determined by a Commonwealth Minister or by Commonwealth public servants appointed by that Commonwealth Minister.

Senator Devitt:

– You are not quoting from a document, are you?

Senator WITHERS:

– No, I am using some speech notes- ‘copious notes’, I think is the term. The Opposition believes that local authorities ought to make decisions on matters concerning local situations. But under this legislation any decision by a local authority or a State Government to spend money on any road or road plan will have to be submitted and vetted by a Commonwealth Minister or a Commonwealth public servant, appointed by a Commonwealth Minister. We believe that this legislation is needlessly restrictive and, especially, we believe it is needlessly centralist. We appreciate that this legislation follows the Labor Government’s policy of appropriating State government powers and local authority powers. We recognise and totally oppose the fact that this Government is hell bent on accruing more spheres of influence and greater powers in Canberra. To that concept we are totally opposed on this side of the chamber because when this Labor Government cannot manage the ordinary housekeeping arrangements for the Australian Capital Territory, it is hard to imagine how it will fare dealing with submissions from 6 State governments, 2 territorial authorities and about 1,000 local authorities around Australia. We are convinced that the result will be one great bureaucratic bungle. Requests for road grants will stultify in in-trays while the roads of Australia will rot. The machinery will be greased by this legislation for Canberra to override decisions made by elected governments- be they State governments or local authorities- and we on this side of the chamber believe that that ought not to be tolerated. I repeat that State governments and local governments, as elected representatives, should take the responsibilities for decisions relating to State government and local government road programs. These decisions should not be made by politicians in Canberra and, especially, they should not be made by delegated non-elected Commonwealth public servants in Canberra, no matter how well qualified those public servants are.

Therefore my colleague, Senator Durack, on behalf of the Opposition in the Committee stages of the Bill will be moving some amendments. When the amendments are ready they will be circulated as early as possible. The Minister for Aboriginal Affairs who represents the Minister for Transport will be aware that they are basically the same amendments that were introduced by the honourable member for Gippsland, Mr Nixon, in the other place. The Government’s legislation is already causing concern in local government areas. I have received correspondence from the Town Clerk of my own home town, Bunbury, in Western Australia. His letter to me is dated 1 1 July. If anybody wants me to table it I will do so, it is an open document so far as I am concerned. In part of that letter he said:

Request is for your views on this submission and any assistance you can give to ensure that local authorities receive adequate money to carry on, the alternative being approximately a SO per cent increase in rate with a possible reduction of 33 W per cent in staff.

That is how the local authority in my home town is looking at this matter. In a memo that he sent to the mayor and councillors on 2 July 1974, in relation to the future he said:

At this stage no advice has been received of how much this council will receive in grants over the next 3 years. However, it is fairly obvious from advices of the Commonwealth Bureau of Roads, political speeches in both tiers of government, we will be lucky to receive the same grant as last year for the next 3 years. It appears money will be available for National Roads (Eyre Highway), freeways etc. but country rural roads will be cut. Bunbury is considered as rural for this exercise.

Indications are that the State Government will be forced to increase vehicle licence fees by about 50 per cent for 1974-75 and probably a further 50 per cent in 1975-76. The Australian Government has indicated this.

Inflationary trends are set at about 20 per cent per annum- this is wages, goods etc. Council’s outside workers yearly wage account grew by $ 100,000 last week and it is believed further increases are in the offing for salaried officers.

Instructions have already been issued to not replace staff as they retire as it is considered our main road scheme is at last reaching fruition and road staff would be reduced to carry out maintenance, reconstruction, subdivisional roads only.

These documents are available to anybody who wants to see them. The question one asks is: How can a central government in a country the size of Australia possibly assess all road needs from rural arterial roads and development roads through to urban arterial and urban local roads to national highways and including ‘minor traffic engineering and road safety improvements from Cooktown to Albany with all the towns and cities in between”? Without a massive and costly organisation how can it possibly process requests covering all of Australia without any experience? How much will this massive organisation cost? Will the cost of this massive organisation be taken out of the road grants?

The Minister talks of what he terms dealing with environmentally deficient streets. When will he have time to deal with environmentally deficient streets when he has this vast road grants scheme to oversee? The Opposition believes that the Government’s national highways program is a smoke screen to conceal the fact that this legislation will seriously cut back funds made available to State and local government authorities for road construction and maintenance. This is evidenced in the figures provided over the last 3 years and the figures provided by the Government for the next 3 years for the construction of urban arterial roads.

The Australian Government gave $423 m over the last 3 years with annual amounts increasing by about 20 per cent. But in the next 3 years the Government intends to provide only $355m for these works- a reduction of 16 per cent on the last 3 years. When the allocation for 1974-75, the first year of the new 3-year program, is compared with the last year of the last program there is an actual reduction of nearly 30 per cent and this reduction remains the same for the next 3 years. For reasons best known to itself, and reasons which have never been explained, the Government has rejected the overall concept of the report of the Bureau of Roads on the allocation of funds for the construction of roads. It has cut back on the recommended total expenditure on roads of all types by $2 19m while maintaining the total for national highways at the figure proposed by the Bureau- the figure of $400 m for 3 years. We on this side say that this is a misallocation of funds between the different categories of roads when compared with the findings of the Bureau. No explanation has been offered as to why that should have happened..

Senator Devitt:

– Is that in relation to national roads, in relation to the recommendation or was in fact the final figure above the recommendation? I thought it was above.

Senator WITHERS:

-It is in relation to the whole concept of what the Bureau proposed. Because of this misallocation, and because of the misallocation of funds, State governments and local government authorities will have less real funds for road construction and maintenance. There will be a serious interference with priorities set by State governments based on need and usage by taking $400m for highways which State needs might well have called for allocation elsewhere either in part or in whole.

The States will not be $400m better off because the Commonwealth proposes to spend that amount on national roads over the next 3 years. They will not be able to give pro rata more assistance to local government. The amount by which the States will benefit from the national roads funds is the amount which the States would have spent in the ordinary course of events on roads now classified as national highways and which they will now be relieved of the responsibility of spending on roads in this category. This will be nothing like the $400m. Not only does this legislation demand that the States submit to the Commonwealth Minister programs of work of a specified kind for approval- in some instances whether or not the Australian Government provides funds for the project- but also it provides that, if the Federal Minister notifies that the State or local authority has expended any money on the carrying out of projects of a specified kind that were not approved by the Minister, the amount received or a lesser amount shall be repaid by the State. This leads to this fact. The State is to be responsible in all details for anything which any road constructing body may do. If any road constructing body spends any money at all on a project not approved by the Federal Minister the State in effect will be fined.

State governments will be forced by this legislation to increase their taxation on motorists over the next 3 years, if only to make up the quotas required by the Commonwealth. Substantial increases will be necessary if the States are not to cut their road construction programs effectively because the value of funds granted by the Commonwealth is rapidly decreasing. This legislation is yet another example of the Government’s policy of claiming attributes for legislation which clearly states quite another thing. What is more, and what is more important, it adds to the list of double dealing and broken promises.

On 1 1 June this year the Australian Automobile Association charged the Prime Minister with having broken a pledge which he made when he was in opposition not to reduce the proportion of fuel tax then allocated to roads. The Association’s President, Mr Thompson, said that in April 1972 Mr Whitlam, then Leader of the Opposition in the other place, made a statement to a delegation from the Association. Mr Thompson claims that Mr Whitlam told the delegation that in his opinion more money should be expended on city and main highways. In that financial year $450m was collected in fuel tax and the $255m, or 56 per cent, was returned to the States in road grants. But under the Government’s present proposals in the next 3 years only 53 per cent of the estimated $2, 132m it will collect in fuel taxes will be spent in that way. Therefore, there will be a reduction of at least 3 per cent in the fuel taxes collected.

By this legislation the States are being forced into an impossible position with regard to roads, road construction, taxation on road users and the administration of their own works. Furthermore, this legislation is a blatant attempt to ignore the constitutional responsibility of the different governments, be they State or local government authorities, and to place even minor administrative decisions on all road matters in the hands of Canberra politicians and the Canberra public servants. We of the Opposition regret that the Government has not lived up to its pre-election promises to do the right thing by the payers of fuel tax in Australia. We can do nothing to increase the road grants but during the life of this Government we will make certain that the users of the roads in Australia know that they have been led up the garden path.

We will attempt in the Committee stage to amend the Bills to ensure that responsibility lies with those who are elected to carry the responsibility. It is of no use for the Minister for Transport, Mr Charles Jones, to claim that merely because the Commonwealth Government collects the taxes it has some special right or authority. After all, it is high time that the Australian Government learned that it taxes the same people as do the State governments and local authorities. We are all Australians and no government has any prior claim on the Australian’s money over any other elected authority in Australia. If we are to maintain democracy in this country- we are often lectured in this place by members of the Government that democracy is a very frail thing in the world today- it is important that democracy works at the grass roots. Without strong effective local authorities in Australia we will get a centralised authority and democracy will start to wither on the vine. In order to protect democracy in Australia we have to make certain that local authorities elected by ratepayers have a sense of responsibility, a capacity to plan and a capacity to spend. I am not one of those people who believe that all wisdom resides in members of this Parliament or members of the Commonwealth Public Service. If we are to uplift the role of local authorities in Australia and make greater career opportunities available for professional officers in the local government areas of Australia- I believe that is vitally necessary- we must be prepared to give them authority and not have some Commonwealth Minister or Commonwealth public servant supervising their every move. For those reasons, my colleague Senator Durack will seek to amend these Bills during the Committee stage.

Senator DEVITT:
Tasmania

– I also wish to observe upon the 3 measures now before the Senate. I can accept some of the propositions put to the Senate by the Leader of the Opposition (Senator Withers). I share some of the fears he expressed, but I believe that many of the other fears which he seemed to project into his remarks have no foundation. They are based upon assumptions and misconceptions, and in that respect they tend to be somewhat misleading.

I want to speak at some length on these measures and perhaps I should start by indicating what these Bills propose. Within them is embraced a proposal for the expenditure of $l,126m. The National Roads Bill involves an expenditure of $400m; the Roads Grants Bill, the one with which we are mainly concerned, involves an expenditure of $700m; and the Transport (Planning and Research) Bill provides for expenditure of $26m over a period of 3 years. Therefore this proposal involves an expenditure of $1,1 26m over 3 years. This was not the initial proposal. I make no excuse or apology to you, Mr Deputy President, to honourable senators or to all those who are listening to the broadcast of these proceedings for the attitude that the Labor Party in office has taken to local government in this nation.

I assert here and now that this is the first government in the land that has ever interested itself directly in the affairs of local government. Nor, in fact, do I make any apology for the fact that throughout the 9 years that I have been in this Senate I have missed very few opportunities to deliver myself of some sound advice about the problems of local government. I have urged such things as a voice in the Grants Commission and proper representation at Premiers’ Conferences for local government, and on every other occasion when it has been possible for me to put forward the interests of local government I have done so. Whether my advocacy has been of any value I do not know, but I am delighted to see that at least the thoughts I had in my mind for local government very largely have been adopted by the present Labor Government.

The proposals that are before us now arise out of a genuine desire to do something for Australia’s land transportation system. Anybody who suggests that land transportation in Australia at present is in an acceptable condition is deluding himself; and it is a dangerous delusion indeed. There is such a back-log of need for upgrading of all manner of transport systems within the total context in Australia that there is a great task ahead of us. It is a great pity that we find ourselves delivering our comments on these measures at present in the light of the current economic situation in Australia. Had that not been so there would have been a substantially greater subvention of funds for the purposes I have just outlined. The Commonwealth Bureau of Roads made a quite excellent report and the Government has based its approach to the general questions of transport, road systems and the like in Australia largely upon the basis of the recommendations of that report, except of course - .

Senator Durack:

– Less $200m.

Senator DEVITT:

-That is right. I want to come to the $200m. I am glad Senator Durack intervened with that comment. Had it not been for the current economic situtation in Australia there is no question whatever that this Government would have taken action to see implemented substantially the recommendations of the Commonwealth Bureau of Roads. But we all know that the economic circumstances have led to the need for substantial cutbacks in expenditure. None other than Mr Snedden, the Leader of the Liberal Party, is the one who has been fulminating more than anybody else about the the general question of government overexpenditure. So the Government has had to take heed of the present economic situation, like it or not, and cut the program to the tune of about 17 per cent. That was not a decision which the Government took with any joy or delight; it was a decision taken in the light of the prevailing economic conditions in Australia. I suggest that as soon as the time is opportune for a raising of the amount of Commonwealth subvention to these transport systems I am talking about the

Government will do so. As 1 said earlier, this Government has shown genuine interest, particularly in the affairs of local government in Australia. It is the first national government that has ever done so. As I have said, I make no apology for my Party’s attitude in that regard.

These 3 Bills provide for an expenditure over 3 years. Honourable senators may recall that I intervened with a comment when Senator Withers mentioned the funds recommended by the Commonwelth Bureau of Roads for a national roads plan expenditure. It is my understanding- I am basing this upon some excellent advice which was tendered to me by people connected with the Municipal Association of Tasmania- that, in fact, the Government has decided to increase the amount recommended for the national roads plan. This has meant of course- this is one of the unfortunate things and one of the areas where I have sympathy with the comments that were made by Senator Withers- a corresponding cut in the amount of funds available under the provisions of the Roads Grants Bill. It is a curious situation.

Senator Wright:

– Is that money for the States and local government?

Senator DEVITT:

– It is for the States and local government. It is for roads other than the principal roads in my home State of Tasmania. As Senator Wright would be aware, the road from Hobart to Burnie would be one of those roads. I think that we should acknowledge that the Federal Government has taken over 100 per cent responsibility for expenditure on national roads.

I deal now with the principal area of concern, the Roads Grants Bill. Before I touch on that subject let me say that I am delighted that the Government has taken an interest in transport planning and research. Some years ago I was a member of a joint committee which inquired into the introduction of breathalyser tests in the Australian Capital Territory. The question of blood alcohol content and so on was inquired into. One of the final recommendations of many members of the committee was that because alcohol was a contributing factor to road accidents in Australia quite drastic measures ought to be taken to reduce the blood-alcohol content provision in relation to a motorist in charge of a motor vehicle. I argued against that recommendation. I said that there were too many factors involved in a total and true assessment of the situation to blame one factor for the terrible and unacceptable road carnage. If we had accepted that recommendation we would have turned our attention away from the need for transport planning, road control, road standards and all manner of things involved in the total appreciation of the road toll question. I appreciate that the Government is providing $26m in the Bill for planning and research into the general question of transport planning and so on.

Let me return to the subject of the Roads Grants Bill. There are 2 principal areas of concern, as I understand it. I am very pleased that the President and the Secretary of the Municipal Association of Tasmania are in the Senate gallery tonight, which indicates the interest which that organisation has in this matter. The main concerns are these: As Senator Withers mentioned at some length, there is the suggested interference with the programming of the works and the carrying out of the expenditure of revenue on works within the immediate purview and responsibility of local government and State government instrumentalities. The Minister for Transport (Mr Charles Jones), in a letter to local government organisations, I think last Friday night, set out as clearly and as explicitly as he could that it was not the Government’s intention to interfere. Referring to the expenditure programs of local government being examined by the Commonwealth, he said:

The provisions 1 refer to, however, are not mandatory and it may help the Parliament in its consideration of the Bill if I indicate the manner in which it is intended they be administered. This should also clear up some of the misunderstanding that may exist in the minds of State and local government.

The States and local government will not be required to submit for approval the roadworks program financed from their own funds for the following categories: Urban local roads, rural local roads, developmental roads, beef roads, minor traffic engineering and road safety improvements.

During the course of a conversation with an executive member of the Municipal Association of Tasmania tonight I ascertained that this information had not yet reached the Association. So there is some excuse for the observations which were made by Senator Withers earlier in the debate, in the absence of this information. The Minister also stated:

This means that the Australian Government will not be approving road projects financed from a State’s or local government’s own resources for the above categories nor was it ever the Australian Government’s intention that local councils would have to seek approval for the purchase from their own resources of individual items of road plant, such as tractors, us claimed by Opposition spokesmen.

I forgive the Opposition on the grounds that the Minister has gone to some pains in the past few days to explain the position when he learned of the apprehension of people in local government that they would be required to submit their accounts and programs for examination. I believe that the Federal Government has a genuine and sincere interest in ensuring that the affairs of local government are carried on in the best interests of the welfare of all the people, which is where the responsibility of local government lies. It has manifested this interest and it is a great pity that we have come to this point in time when the Government’s real wishes in this area cannot be fulfilled because of the prevailing economic conditions in Australia.

One can take some assurance from the observations made in this letter of the Minister to the local government authorities throughout the land and I, for my part, am quite prepared to accept that the Minister does not wish in any way to interfere with the affairs of local government. In fact it would be quite ridiculous to do so because there is no expertise within the Federal Government in these affairs. This is a special field and requires a special knowledge of and skill in administration and above all a knowledge of local conditions. The Federal Government cannot under any circumstances be regarded as having expert knowledge of local government and local affairs. So I think the Federal Government would welcome the strongest and most vigorous activity on the part of local government in Australia and I suggest that we will see that happening as time goes by.

There is another question that arises and I hope I have given some assurance to those listening and to honourable senators who are interested in this question that there was no wish on the part of the Government of this country to interfere in the domestic affairs of these councils. It is part of the functions of the Grants Commission when it concerns itself with the affairs of the States to have some knowledge of the financial performance of these bodies, but to suggest that this represents any intent on the part of the Federal Government to interfere or get involved with the day to day workings and complexities of local government is stupid in the extreme. There is no desire, no intention and no wish or will on the part of the Government to do that. I am grateful to the Secretary of the Municipal Association of Tasmania for providing me with a very comprehensive report on the situation in Tasmania and I hope that the Senate will forgive me if I confine my remarks in the main to the particular position that obtains in that State.

Mr Johnson, the Secretary of the Municipal Association of Tasmania, has supplied me with most comprehensive details of what is proposed to be expended in Tasmania from the funds made available and it certainly appears that the situation is not all that it ought to be. In fact I am very distressed to find that since the national roads proposal has taken a substantially greater proportion of the funds, as I understand it, than was recommended in the Bureau of Roads report, the amount of funds available for the roads grants proposals has been correspondingly diminished. Unfortunately an equal sharing of the reduced available funds is not to take place. I understand that in my State of Tasmania it has been clearly indicated to the local government institution there that the State proposes to take the lion’s share of those funds. On an examination of the figures which were supplied to me it is very difficult to find any real indication that the local government institution in Tasmania is to get any value at all out of the new proposals and that is completely contrary surely to what the Minister intended.

I recall having read some further correspondence from the Minister for Transport, in conjunction with his colleague the Minister for Urban and Regional Development (Mr Uren), addressed in general terms. Unfortunately the letter is undated but I believe it is of recent origin. In paragraph 2 of the Ministers’ letter, following an observation they had made, they state:

By way of comparison, the last 3 years of the 1969 CAR Act provided grants totalling $870m.

As I mentioned earlier, the proposal embraced within the 3 measures before us now comprises an expenditure of $1 126m.

Senator Wright:

-After allowing for inflation, that is infinitely less.

Senator DEVITT:

-Senator Wright, if you do not mind, would you please let me continue. You have had a good go. You have been going all day almost uninterrupted.

Senator Cavanagh:

– Two days.

Senator DEVITT:

-Two days, yes. Give me a bit of a go, will you, senator. Have a little spell for a while. You can get up and address yourself to this at any time if you feel competent to do so. Mr Acting Deputy President, as I said, $870m was provided, whereas the amount now is $1 126m. It would have been over $1400m had not the present economic situation in Australia intervened. The Ministers’ letter goes on:

This increase in funds, together with the increase in State government expenditure required under the proposed matching quotas, will make a major impact on road problems in urban and rural areas.

This is the assumption which the Ministers have made. The letter goes on to say:

We appreciate the problems that confront local authorities with every delay in finalising these Bills.

The Ministers go on to say that the double dissolution and so on had intervened and that the presentation of the measures to the Parliament had thereby been delayed. They then say:

Whilst we emphasise that delays in introducing the legislation are not of the Government s making, interim finances have been arranged in anticipation of legislation passing in this parliamentary session.

They were talking about the measures now before us. The letter goes on:

We are informed that many local authorities are not receiving funds from States for road works. If this is the case, your Council . . .

This is a letter which is addressed to the councils-

. should immediately contact the appropriate State Minister.

I understand that in Tasmania contact has been made with the Minister on more than one occasion and the Minister has indicated to the local government authorities that the State Government’s requirements for funds to carry out its works over the next several years will mean that there is no possibility of the State’s passing over to the local government authority any additional amounts saved by reason of the Commonwealth’s taking over the responsibility for the national road, in other words, for the construction and the maintenance of the main road from Hobart to Burnie. Notwithstanding the saving effected by the Commonwealth’s taking over 100 per cent responsibility for this road, one would have assumed- and I believe it is the assumption of the Minister for Transport- that the State of Tasmania- and I do not think the problem is confined solely to Tasmania; I think it is a problem in every State- would have been expected then to have funds with which to assist local government to carry out its many and varied functions in the provision of roads and communication systems in the remoter communities of the State.

The Minister’s letter goes on: it has always been our Government’s policy to strengthen the third tier of government.

I might as well say it here that I do not regard local government as the third tier of government. I regard it as an equal partner in the 3-level system of government in this country. I have said on many occasions that if one of the 3 forms of government in this country is not able adequately to fulfil its functions the whole system of government in Australia is not adequately fulfilling its function. Surely there was a glorious opportunity for local government dunng the referendum a few months ago. I would have thought that every person in this land who has an interest in and a sense of responsibility to the local government institution would have gone out on the hustings then and said: ‘For heaven’s sake vote for this measure, if you are not going to vote for any other. Give local government its rightful place in the land’. Local government does not have to stand in the shadow of any other form of government.

At this point I would strongly urge that there should be a thorough-going inquiry into the whole institution of local government. Let us, for the first time in history, define its role and functions. Let us then go immediately to the point of determining that for the fulfilment, the carrying out, of those purposes and functions local government should have a sufficient availability of finance to do it. Thirdly, let us set clearly in its proper position and proper perspective the relativity of the three levels of government in Australia. I suggest that until that stage is reached we are always going to have problems of the kind to which I am referring at the present time. It is, as people so frequently call it, the Cinderella level of government. So that is the position in which we find ourselves at the present time.

In a submission which was made available to me by the Secretary of the Municipal Association of Tasmania, Mr Johnson, it is stated that a point to be made about national road finance is that the funds available will increase each year. It talks about amounts for Tasmania of $4.9m in 1974-75, $6.1m in 1975-76 and $8.9m in 1976-77. In relation to those figures the submission states:

The annual increases shown in the above figures are substantial enough to take full account of inflationary trends or, in the case of maintenance, they at least stabilise- the point is that the funds do not reduce during the 3-year period.

It continues:

This is not the case, however, in relation to those road categories of importance to local government, where the figures reflect a most unfortunate and undesirable trend- a reducing trend over the 3-year term of the arrangement. This trend is so significant that, in the year 1976-77, the final year of the new proposal, the total amount available for both rural arterial and development roads and rural local roads ($4.9m) is a mere $0. 56m in advance of the amount received by the State in 1973-74 . . .

At page 4 of the submission reference is made to a speech by the Minister for Transport in which he said: the Australian Government has decided to take full responsibility for financing the construction of national roads. This will relieve State Governments completely of any financial responsibility in that area and thus allow them to devote all their own resources to the categories covered by this Bill.

That is the Roads Grants Bill. The Minister went on to say:

In this regard 1 want to make the particular point that previously local government authorities relied on Commonwealth aid roads grants. Whilst local government is still eligible for assistance under this legislation these authorities will now have to turn more to State governments for assistance. I emphasise what I said earlier, namely that with the Australian Government meeting the full cost of national roads, State governments will be able to meet this increased demand for financial assistance from their local authorities.

That is the assumption that the Minister has made. I suggest that if we had had the position in which local government in its own right could deal with the national Government we would not have the situation where local government has to wait, apparently in vain, for some assistance from a State government as a consequence of the State government’s enhanced ability to finance its own road programs.

I would like to speak at very great length on this subject and on many other matters that are related to it, but I know that time is running out and there are other points I want to make in connection with this matter before I resume my seat. The submission which was made available to me by the Municipal Association of Tasmania states at page 5:

Notwithstanding the above percentage increases over funds available to the State in 1 973-74 -

To which I have just been referring-

The Government to date can only suggest that local government in 1974-75 will receive probably no more than a paltry 5 per cent increase- if, indeed (and this has been mooted) it receives any increase at all in road funds.

In the light of the increase in the cost of living year by year I suppose it could be said that that 5 per cent increase actually means in purchaseable terms a reduction in the amount of work which is able to be carried out by local government. In the Third Schedule of the Bill there is set out the amount of assistance to be provided over the next 3 years. In the specific area of rural local roads the following amounts have been allocated for construction and maintenance: In 1974-75, $4.3m; in 1975-76, $3.5m, which represents a reduction; and in 1976-77, $3.1m, which represents a further reduction. So that the figure is reducing over the triennium. One has very great fears and apprehensions for the ability of local government to carry out its functions adequately. What we do not seem to realise in the planning of the systems where there is a part to be played by the Federal Government, a part to be played by the State and a part to be played by local government is that there is a complete and serious imbalance and local government gets the last grab at what is left. From my experience of almost 20 years in local government this amount is pretty slim when it comes to the final analysis.

A further observation is made in the report which states:

The whole aspect of road finance may be relatively easily summarised: the road finance grants to the State -

That is, the State of Tasmania- from which local government has in the past received assistance, have been severely reduced on the understanding from the Australian Government’s point of view, that the States, being relieved of the burden of National Roads, will be able to meet ‘this increased demand for financial assistance from their local authorities’.

Unfortunately past experience tends to suggest that this latter statement will not eventuate in practical terms in Tasmania. I have in front of me figures which show the actual proposed situation in relation to national highways, export roads, rural arterial and development roads, rural local roads and so on, which I am quite prepared to table for the information of honourable senators if someone wishes me to do so.

I want to summarise the situation as it appears at the present time. Local government in Tasmania is very unhappy about what is proposed. It is not unhappy with the national Government but it is unhappy about the prospect that very little finance, if any, will be available to its members above that which is now presently available. The erosion of the value of money through inflation has meant that unless substantially increased sums in actual terms are available year by year the amount of work which can be carried out by local councils will be seriously curtailed. It was suggested to me tonight during a telephone conversation I had with a person in Tasmania that unless there is some prospect of substantially increased assistance to local government in Tasmania local councils in that State would be faced with the possibility of having to dispense with the services of 20 per cent of their employees. That would be a disastrous situation.

Senator Durack:

– That is the Government’s fault entirely.

Senator DEVITT:

– Wait a moment. I seem to recall that members of the Opposition tramped up and down the countryside day after day condemning government expenditure and telling government institutions to cut down on their expenditure. Here is a situation where expenditure has been cut down. Unfortunately, as I have said, because of the very difficult situation and a lack of recognition on the part of governments in the past -

The ACTING DEPUTY PRESIDENT (Senator Davidson)- Order! The honourable senator’s time has expired.

Senator LAWRIE:
QUEENSLAND · CP; NCP from May 1975

-On behalf of the Australian Country Party I want to intimate that we do not propose to oppose the second reading of these Bills. But, like Senator Withers, we propose to move several amendments in the Committee stage. I would like to make a few general remarks on roads. Firstly, the Australian Country Party objects very strongly to a proposition which would give more control from and more centralisation in Canberra. We believe in a Federal system and not in a centralised system. The Bills before us tend to lead towards centralisation. Senator Devitt mentioned that the 3 tiers of government should be equal. He said that local government was just as important as federal government. I think that if these Bills are passed in their present form we will soon find out how wrong that statement will prove to be.

I want to make a couple of remarks about allocations. The honourable member for Gippsland (Mr Nixon) has mentioned this in the other place. It has been mentioned several times already. Apparently in this matter there will be an attack on those living outside the big cities. We have already seen this in relation to the telephone system. Now we have it in relation to the allocation for rural roads which has been slashed from $248m or 3 1 per cent of the total, to $ 156m or 14 per cent of the total. This pattern continues through the whole allocation of money for roads. The previous Government had what it called the Commonwealth aid roads system which was a real help to shire councils. It enabled them to build many local roads in places where they would not have been constructed otherwise, and they would not have been built to the standard they are now. But these things apparently will go by the board because of the reduction in funds allocated and because of the inflationary situation. Less money is being allocated and a very much smaller amount of work will be done.

We have before us a Bill which deals with planning and research. Apparently the control authority will be centred in Canberra. No doubt as time goes on it will be built up into a tremendous department. My experience is that each State has a very good planning and research section in its own main roads department, country roads board or whatever the term may be. My own State of Queensland has an excellent planning and research section. It has had to build roads from the driest parts of Queensland where there is a little rain at any time, to some of the wettest places in Australia. This section has had to learn to deal with all the problems attached to drainage and other things. Now we are to pass this over to a new department which is to grow up, I presume, here in Canberra. It will be duplicating work for some of the time. If I know anything, as time goes on it will endeavour to take over more and more of the planning and research in the different states. We are told that if a region in a State, or a State government, or a main roads department planning section decides it wants to build a road from A to B, Canberra might say: ‘No, you have to build it from C to D’. Apparently because Canberra supplies the money it will be able to say where the road has to be built.

The development of our highways and roads system in Australia has gone ahead as the motor car population has increased. We have seen already that long stretches of highway have hardly been completed before they have had to be rebuilt to a higher standard from end to end. In Queensland they are adopting roads standards now for 70 miles per hour- or whatever that is in kilometres- and constructing wider roads of a much better quality. There is a continuing expenditure on these matters throughout the State. In fact this applies in all the States. It is very hard to keep abreast of the rapidly increasing motor car traffic. For example, when the Bruce Highway from Brisbane to Cairns was completed nobody could envisage the amount of motor traffic which it carries today. This applies to other highways throughout Australia. Before the first section of the highway was completed they were starting to rebuild it and to widen it. We are getting 4-Iane and 6-lane highways in some sections. This is a pattern all over Australia where there is high density of traffic.

I think the previous speaker in this debate, Senator Devitt, mentioned that there would not have to be a referral to Canberra for the States or the municipal councils to spend their own money. However, if one studies the Bill thoroughly, one finds that this is not quite the case; that in fact the Bill does make provision for referral to Canberra in many cases, such as for the purchase of machinery and the spending of money on different things. Such referral will occur, and once this power of referral is firmly established- from the States’ point of view the referral of planning and research matters is probably the worst- it is my opinion that the centralisation process will build up and increase rapidly until the section which deals with these matters here in Canberra will become very large, requiring enormous buildings, the expenditure of large sums of money and all the other things that go with such great expansion of a department.

I have made mention of arterial roads, and I gave reasons why shire councils will be in a much worse position when they do not have the money to spend on arterial roads. It would seem that expenditure on urban areas is not being cut at all and that they will have expended on them the full amount recommended in the report prepared by the Commonwealth Bureau of Roads. I just cannot see the wisdom or the logic in the Minister requesting the Bureau of Roads to report on the roads system of Australia and, when the Bureau puts in its report recommending the allocation of money for various roads in the various States, the Minister, or somebody advising the Minister, making these arbitrary cuts in expenditure in relation to some sections of road and probably actually increasing expenditure in relation to some other sections.

Senator Wright:

– It was done on the political basis that there are fewer votes out there.

Senator LAWRIE:
QUEENSLAND · CP; NCP from May 1975

-Senator Wright’s comment would be exactly right; the Government just does not worry about country areas. I have already referred to the telephone set-up. Country people are not able to have telephones installed because there are fewer votes in the country areas. The Labor Party is absolutely an urban party. Later we will be dealing with other Bills which are concerned with urban transport and the building up of railways mainly in the big cities. The country areas will contribute to that expenditure also. I suggest that these Bills have to be amended so that some of the power is taken away from Canberra in an endeavour at least to keep our Federal system strong. We must not allow Canberra to become all powerful and take complete control. We want strong States and we do not want everything to be referred to Canberra. Despite what has been said, that is the story and that is what will happen. Even shire councils- municipal councils- will have to refer matters to Canberra for decision. We do not want that situation to arise, and it is to try to prevent that situation from arising that we intend to move certain amendments to the Bills when they are considered in Committee. That is my Party’s attitude to these Bills.

Senator WALSH:
Western Australia

– It seems that there are 3 major issues or 3 strands in the dispute between the Government and the Opposition in this debate. They could be put under these headings- I use the Opposition’s highly emotive and rather meaningless term- of centralism, the aggregate level of Commonwealth funding for road expenditure, and the distribution of that aggregate level of funds between various States and various categories of roads. On the issue of centralism my colleague, Senator Devitt, has already exposed the Opposition’s argument by quoting the statement of the Minister for Transport ( Mr Jones) who referred to many of the charges and allegations that have been made by members of the Opposition that the Government in Canberra is going to scrutinise in the most minute detail the expenditure on every road work which is to be conducted by local government authorities at places such as Nullagine or Marble Bar. My colleague has already dealt with that and shown that it simply is not true. On the broader issue of what the Opposition likes to call centralism- that is, whether we should have a national roads system which is nationally planned- I think perhaps I could do no better than to quote from the Minister’s second reading speech to the Bill which established the Commonwealth Bureau of Roads in 1964. The second reading speech of the then Minister for Transport, Mr Gordon Freeth, is reported in Hansard on 20 May 1964. On the problem of assessing road priorities within Australia Mr Freeth said:

We have official statistics and we obtain the views and assessments of the States. Inevitably, however, this falls short of what we require. Necessarily the views and representations put to us stress particular- and, in the nature of the case, sectional- aspects of the problem. But the Commonwealth must be in a position to make a competent and reliable appraisal of its own. It has to do this in the context of its many other responsibilities. It has to try to see the problem as a national whole and not simply as the sum of particular views of it.

I was not here in 1964 so it may well be that the anti-centralists or self-professed pseudo anticentralists who have spoken in this debate tonight and in the other house on this Bill disagreed with Mr Freeth when he laid out that philosophy in quite lucid and explicit terms. If they did, I apologise to them. If they did not I ask them: What has changed between 1964 and 1974 which made the proposition that the national government should plan the national road system in 1964 a sound proposition and makes it an allegedly unsound proposition in 1974?

I refer now to the second issue, the aggregate level of funding. We all know that it is very easy for an opposition to say that no government is providing enough funds for any particular pressure group or for any particular avenue of government expenditure in any part of Australia. It is very easy for an opposition to say that. It becomes somewhat indefensible when an opposition which has been habitually complaining that a government has been spending too much money criticises a government for allegedly spending too little in any particular area without offering alternative areas in which it suggests expenditure should be cut. Certainly the priorities of road construction as against other competing areas of government expenditure and the distribution of whatever level of road funds is finally decided involve value judgments. They involve an area within which there are quite legitimate grounds for genuine differences of opinion. That is inevitable. What is not inevitable but what has unfortunately crept into this debate tonight, into the House of Representatives debate 2 weeks ago and throughout Australia, is that the facts of the case and the statistics have either been misunderstood or deliberately misrepresented.

– I am sorry, I cannot find the figures that I have written down for Western Australia. I have so many papers in front of me.

Senator Cavanagh:

– The figure was 13.4 per cent for Western Australia.

Senator WALSH:

– Thank you, Mr Minister. For Australia as a whole, contrary to what has been stated, it is proposed that total grants for the 3 years of this legislation to all the States in aggregate- including planning- will be $1,1 26m as against $870m for the last 3 years of the previous program. The $870m includes supplementary grants and beef road grants. If honourable senators like to compare the figures for 1973-74, with the current financial year of 1974-75 they will find that the allocation for all States has increased from just over $32 1 m, including grants for beef roads, to $350m. I have now found the figures for Western Australia. There is an increase of $ 13m in this 3-year period as against the last 3-year period- not a decrease as has been alleged. When this Bill was debated in the other place the honourable member for Forrest (Mr Drummond) made 2 allegations. He said:

One must appreciate also that the base amount that was raised in Western Australia last year was $ 11.279m. The quota for Western Australia under this Bill is $23. 8m.

The figure of $11. 279m appears to have been extracted from schedule 7 which appeared at the end of the 1969-74 Roads Grants Bill. I think it related to the basic quota requirement for the first year. In fact, the quota requirement for Western Australia last year was not $ 1 1 .279m, as Mr Drummond appeared to believe, but $16.5m. The actual revenue raised was $20. 8m. So the required increase in quota is not nearly of the magnitude suggested by Mr Drummond. He also referred to- there is probably somewhat more justification for this complaint- a complaint from the Secretary of the Local Government Association of Western Australia which had been sent to him. The Secretary, in that letter, stated: . .the Press reports, statements by the honourable Premier of the State, indicate that the grants to Western Australia will not only not be increased out that grants are to be reduced by one-sixth.

Now, it is quite feasible that some reports which were appearing in the Press at that time could have led Mr White to believe that there was to be a decrease in the grants. I do not particularly blame him for it but I would like to point out that on 14 June 1974 a Press statement was issued from the office which I share in Perth setting out the basic facts of the allocation of funds under this Bill, comparing funds allocated to urban and rural areas between the period 1972-74 and the 1974-76 period. It compared the future period with the past period and made a comparative analysis of expenditure and of the direction of expenditure. It also specified the important changes in the definition of road categories and the effect this has had on road finances. That statement was circulated to every local newspaper in Western Australia and to all rural weeklies. To the best of my knowledge, the statement was published in only one.

It is the prerogative of a newspaper proprietor to decide what he will publish and what he will not. But if one of the reasons for existence of a rural newspaper is to pass on to rural residents information which is relevant to their interests, surely it is not too much to expect that these rural newspapers could have seen fit to publish what was just a bald statement of facts, even if it did come from what they regard as a tainted source. Had they done so, a lot of the confusion which led Mr White to make that incorrect assessment of the situation would not have occurred. If Mr Drummond has any complaints about this I suggest that his complaints should be directed towards the rural Press in Western Australia which declined to publish important information.

Senator JESSOP:
South Australia

– I want to support largely what Senator Devitt said about his concern for local government. As far as I am concerned, this Bill blatantly discriminates against the States of Australia and also against local government. I would have thought that the Government would have paid some regard to the Commonwealth Bureau of Roads report which made some assessment of the road needs in Australia. But of course the Government has ignored this report almost entirely. The Bureau of Roads is an expert body that recommended that the warranted and feasible expenditure on roads in Australia to bring them up to any reasonable standard was approximately $4,200m over the next 3 years. In spite of this warranted and feasible suggestion the Bureau recognised other areas of expenditure for the Government and reduced this recommendation to $3, 422m, of which it suggested that the Commonwealth should pay $ 1,345 m and the States should pay $2,077m. So the Commonwealth Government is not the Father Christmas that we have been led to believe it is.

In order to meet the recommendations of the Bureau of Roads report the States are now required to find, in addition to the money provided by the Government in the road grants Bills before the House, an additional $2 19m. In the legislation there is a massive reduction in the grants to rural areas. For example, in my State of South Australia for rural arterial roads the Bureau recommended that a total of $ 16.7m be expended but the Bill provides for only $4.7m- $12m less than the recommendation. Senator Wright put his finger on it earlier in the debate when he said that the Government had paid no regard to inflation. That is perfectly correct. The Bureau of Roads did pay some regard to this subject. At page 283 of its report in clause 13.46 it says:

After consideration of the factors underlying the current inflation, recent and prospective Government antiinflationary action, and scope for productivity improvements noted above, we have made an allowance of 6 per cent per annum for future cost rises -

But the poor Bureau of Roads forgot that there was a different government at that stage. When the Liberal-Country Party Government was in power it managed to keep the inflationary trend down to about 4 per cent. In spite of that the Bureau of Roads chose to believe the Prime Minister (Mr Whitlam) when he said that he would take anti-inflationary measures. Therefore the Bureau went along with this and allowed an inflationary factor of 6 per cent in its assessment of the road needs for Australia. I criticise the Bureau of Roads in this instance because, over the last four or five years, road construction costs in Australia have risen by not less than 10 per cent per annum. This is a measure of the irresponsibility of the Commonwealth Government in introducing Bills that will reduce the funds available to the States and to local government for expenditure on roads.

In support of what Senator Devitt said earlier, concerning the disadvantage to local government, I notice that the Acting Premier of New South Wales at the time, Sir Charles Cutler, indicated in a Press statement on 29 June that New South Wales shire councils were confused and concerned about the plans to cut funds for rural roads. He said that 2,000 shire council workers would lose their jobs. He described the whole scheme relating to grants measures as a lunatic one. The President of the Monaro Shire, Mr V. L. Lyons, said:

We are worried at this stage. We will just have to play it along and see what happens. There will certainly be a reduction in staff if our funds for rural roads are cut by 25 to 30 per cent.

Senator Young:

– What about the Prime Minister’s promise of a 2-lane highway from Alice Springs to Port Augusta?

Senator CAVANAGH:

– We are finalising the program for the sealing of the Stuart Highway at the present time. The Prime Minister (Mr Whitlam) promised to upgrade roads and this is the first legislation aimed at implementing that proposal. Senator Lawrie asked a question about the payment of section 96 grants to the States. There is no question of a new and separate department being created in Canberra and housed in big buildings involved in the implementation of these Bills. Other than for the highways, and possibly also for the highways, the States will be the agents. In many places they could well be the construction agency. Any research on transport which will be conducted in Canberra will not be financed from these Bills, so that destroys completely that argument.

The Brisbane to Cairns road needs to be improved and developed. This road is covered by the National Highways Bill and that reflects the importance the Australian Government attaches to it. The Australian Government is now prepared to accept 100 per cent of the cost of developing such national highways. The national highways included in the National Roads Bill are essentially in the country areas. That brings up the question of the rural-urban subdivision of money. The highways are essentially in the country areas. Contrary to what has been said on this question of government benefits for roads in rural areas, in the 3-year period commencing from 1969 rural areas received 47 per cent of the Commonwealth Aid Roads Agreement expenditure and urban areas received 53 per cent. Under this road legislation rural areas will get 61 per cent of expenditure and the urban areas 39 per cent. So the biggest expenditure- greater than in the previous 3 years- will be on the rural roads.

Senator Withers raised the specific point of whether the expenditure of local authorities on road construction which is paid from their own resources is to be subject to the approval of the Minister. Approval is required for only the program of work on urban arterial and rural arterial roads. These are essentially State roads, not local government roads. Australian Government expenditure of 100 per cent of the cost of national highways will give the States greater ability to provide local government with necessary resources to sustain road programs.

On the question of the reduction of State expenditure on roads as recommended by the Commonwealth Bureau of Roads, this reduction of some 10 per cent therefore will possibly save the States from having to increase charges such as car registration fees and so on to raise the amount of their contribution to this proposal. It is unfair to compare the arterial road provisions of the measure with the provisions of the 1969 Commonwealth Aid Roads Agreement. National highways received a substantial part of the expenditure of $400m provided in the rural category of the CAR provisions. When national highways expenditure in this measure is added to the expenditure on rural arterial roads it considerably exceeds the 1969 CAR provisions.

The other point Senator Withers raised was that he wanted the Government to give some promise that the revenue from fuel tax would be spent on roads. It is not the Australian Government’s policy to use all excise proceeds for roads development; neither was it the previous Government’s policy; that is, the present Opposition when it was in government. Finance for roads needs to be decided on the basis of assessment of roads needs and overall transport needs. Several programs have a high priority, such as education, welfare, health and above all, the general state of the economy. The Minister for Urban and Regional Development is concerned and has a say in the area of urban and regional roads. The Minister for Northern Development and Minister for the Northern Territory (Dr Patterson) has a say in relation to beef roads. I am informed that at present he has before the Cabinet a separate Budget submission in relation to the Stuart and Barkly highways.

I think I have answered the questions which were raised. In anticipation of this Bill being passed, the Prime Minister has made provision for payments to the States on an interim basis which will permit them to carry on. There will not be, as the Deputy Premier of New South Wales said, 1,600 Department of Main Roads employees out of work if the funds dry up. The Federal Government has been paying since the beginning of July this year, in anticipation of the authority to pay in this Bill. The Treasury rightly warned that if the Bill is not passed it is questionable whether there is any legal capability of continuing those payments. The Prime Minister has written to the State Premiers informing them of this fact. The letter to the Premier of New South Wales was attached to the statement which I tabled in the Senate. It shows the concern of the Prime Minister, when it was known that the amendments would be moved, that the Bill might not pass this chamber.

As the Bill is part of the Government’s development plan as stated in its election promises, we cannot see the possibility of the Government accepting an amendment which allows the States to decide where the Australian Government will carry out its development policy. Such amendments would possibly not be accepted by the Government. One of the things about which I complained when I was in Opposition was that at times the House of Representatives was not sitting when the Senate was sitting, and we were influenced to pass many Bills on those occasions because of the inability to get an amendment accepted in the other place. Even if it were a minor amendment, the Bill would not have been passed until the other place had considered it. This could have meant that funds could well have dried up for a short period. The delay in granting moneys to the States might have caused unemployment. The position could be overcome only if the legislation were passed.

Senator Wright:

– Is that your way of attempting to coerce me?

Senator CAVANAGH:

– I have been blackmailed by the honourable senator for many years. Now that he is in Opposition he should know the realities. While it may suit Treasury officials to wait, the State Premiers certainly expect the flow of money to continue. Concern has been expressed publicly and in correspondence to the Prime Minister about the fate of this Bill. Therefore, I appreciate the Opposition indicating that it will agree to the second reading of the Bui. In the interests of the States, I look with anxious moments to the Committee stage.

Question resolved in the affirmative.

Bill read a second time.

In Committee

Clauses 1 and 2- by leave- taken together, and agreed to.

Clause 3 (interpretation).

Senator DURACK:
Western Australia

– In the list of amendments that was circulated on behalf of the Opposition there was a proposal to delete sub-clauses (4) and (5) of clause 3. Those amendments, I regret to say, were based on a misunderstanding of subsequent amendments because we do not wish to eliminate the whole of clause 4. In short the Opposition does not propose to proceed with the first circulated amendment.

Clause agreed to.

Clause 4.

I ) A Minister may notify a State the date before which a program of projects in respect of a period to which this section applies, being projects of a specified kind, is to be submitted to him for approval, and may, in the notice, inform the State that the program should include all the projects of that kind that are to be carried out by the State and by municipal, shire and other local authorities in that period.
1. 2 ) For the purposes of this Act, the Minister, after consultation with the appropriate Minister of a State-
1. a ) may approve programs of projects by way of-
1. i ) the construction of rural arterial roads;
2. ii ) the construction of developmental roads;
3. the construction and maintenance of rural local roads; and
4. minor traffic engineering and road safety improvements, respectively, in respect of the State for a period to which this section applies; and
5. b ) may approve particulars of a project to be carried out in that period in accordance with such an approved program.
6. For the purposes of this Act, the Minister, with the concurrence of the Minister of State for Urban and Regional Development and after consultation with the appropriate Minister of a State-
1. may approve a program of projects by way of the construction of urban arterial roads in respect of the State for a period to which this section applies; and
2. b ) may approve particulars of a project to be carried out in that period in accordance with the approved program.
3. The Minister of State for Urban and Regional Development, with the concurrence of the Minister and after consultation with the appropriate Minister of a Statela) may approve a program of projects by way of the construction of urban local roads in respect of the State for a period to which this section applies; and ( b ) may approve particulars of a project to be carried out in that period in accordance with the approved program.
4. 5 ) The Minister of State for Northern Development, with the concurrence of the Minister and after consultation with the appropriate Minister of the State of Queensland-
1. may approve a program of projects by way of the construction of beef roads in respect of that State for a period to which this section applies; and
2. may approve particulars of a project to be carried out in that period in accordance with the approved program.
3. A reference in this section to a project by way of the construction, or of the construction and maintenance, of roads of a particular kind includes a reference to the purchase of road making plant to be used in the construction, or construction and maintenance, as the case requires, of roads of that kind.
4. The Minister may, with the concurrence of the Minister of State for Urban and Regional Development, notify a State that a project included in a program of projects submitted by the State for approval under sub-section (3) will not be included in an approved program of projects until particulars of the project have been approved by him under that sub-section.

Senator DURACK:
Western Australia

– Clause 4 has 10 sub-clauses and the Opposition has a number of amendments to various sub-clauses which deal with different subjects. I would suggest that in view of the complicated nature of this clause the Committee may be prepared to divide it so that we can deal with the clause sub-clause by sub-clause otherwise, I think, we will get into a great deal of confusion.

The CHAIRMAN (Senator Webster:

-Is leave granted? There being no objection I will allow that course to be followed.

Sub-clause ( 1 ).

Senator DURACK:
Western Australia

-I move:

Clause 4, together with clause 1 1 which we will be dealing with separately, contains the most offensive provisions of the Bill in the Opposition’s view. The Leader of the Opposition in the Senate (Senator Withers) in the second reading debate explained clearly the attitude of the Opposition to these aspects of the Bill. Shortly, the effect of sub-clause ( 1 ) is to enable the Federal Minister for Transport to require all State road works programs and all local authority road works programs to be submitted to him for his approval, to be included by him in the total approved program of works in respect of which, by subsequent provisions in clauses 4, 5 and 6, the Federal Minister will then make advances to the States. The point is that such approval will be confined not to expenditure by the States or local authorities of money coming from the Federal Government but will extend to programs of works which are being financed by the States and local authorities out of their own resources.

Let us consider the effect of this clause and the subsequent clauses I have mentioned. The States are raising their own moneys by various forms of taxation of the motorist, such as licence fees, and local authorities are raising moneys by way of rates. As was so clearly explained during the second reading debate, all charges are having to be increased by State and local authorities as a result of the inadequacy of funds being made available to the States by the Australian Government under this Bill. Despite the fact that the State and local authorities themselves are taking the responsibility for raising these taxes to meet their programs, these programs will all have to be submitted to and approved by the Federal Minister. So we have the absurd situation, created by the arrogant assumption of further power by the Federal Minister for Transport (Mr Charles Jones), whereby the expenditure of moneys which the States and local authorities are taking responsibility for raising and in respect of which they are directly responsible to their own taxpayers or ratepayers will still have to be submitted to and approved by the Minister. The Minister has seen the enormity of this proposal contained in his own Bill. This of course is not a new experience for us from this Minister. Last year he brought in Bills to amend the Australian National Airlines legislation which went far beyond what he himself ever intended to do. The effect of the Bills had to be pointed out to the Minister and he then climbed down and agreed to many amendments to the Bill. On this occasion the Minister has gone out even further on a limb. This is what he had to say when the Opposition in the other place moved these amendments:

I say to the Opposition now that if you in another place -

Meaning here in the Senate- . . amend this Bill there will not be any money available because we are not prepared under any circumstances to accept an amendment to this Bill which destroys the policy of the Government. So I warn the Opposition that we will not accept amendments.

That is arrogance of power if ever there was. That is the arrogance of power of the Ministers of this Government as expressed by Mr Jones. What do we find has happened? Since the Minister took up this arrogant stance only a few days ago he has circulated to us a very modified version of what he wants to do under this Bill. He says that despite the powers which this Bill gives him, he does not have and never really has had any intention of using these powers to coerce State governments and local authorities in respect of urban local roads, rural local roads, development roads, beef roads and minor traffic engineering. If that is what the policy is, why does the Minister not circulate his own amendments to his own Bill and put in the Bill the powers he wants instead of adopting these sloppy methods of drafting Bills which are typical of the sort of inefficiencies that we are constantly experiencing at the hands of this Government?

The Government is seeking to arrogate to itself all these vast powers and then turns around and tries to mollify the people and to hoodwink them by saying: ‘We do not intend to use these powers, you know. You need not worry about it. Just give us these powers. You can trust us, we are jolly good, honest chaps.’ I think that our willingness, like that of most people in this country, to trust Ministers of this Government with vast powers is fast running out. We do not propose to be intimidated by these words of the Minister that I have just read out. We do not propose to be hoodwinked by the big retraction that he made this week. We fully expect that he will retract all these brave words if this amendment is carried. Mr Chairman, since we are dealing with the sub-clauses separately, I emphasise that we are opposing sub-clause ( 1 ) of clause 4.

The CHAIRMAN:

- Senator, you have moved it as an amendment. I will put the question eventually that the words which you propose to be left out be left out.

Senator DURACK:

– I have moved already that the sub-clause be left out.

Senator STEELE HALL:
South AustraliaLeader of the Liberal Movement

– I am in something of a quandary about this amendment. I can understand Senator Durack ‘s attitude because he, I suppose, is satisfied with the administration of a State Liberal government. However, I come from a State where the administration of a road program under Labor has been one of the most disgraceful affairs in the history of Australian government. There has been in South Australia a plan called a MATS plan- Metropolitan Adelaide Transportation Study- which was commissioned in the last few months of the Playford Government. It was therefore inherited by the new Dunstan Government in 1965. That study proceeded through the major part of those 3 years of that Labor Government and was ordered to be printed by the Government. It was therefore executed as a study at a cost of something like $700,000, which was a lot to pay for a study of metropolitan Adealide. It was basically agreed to by the Labor Government in South Australia which then lost office and turned against that plan for political reasons, and quite shamelessly attacked the plan of its own construction during its tenure of Opposition.

The planning of roads in metropolitan Adelaide is, in fact, in a shambles. The State Labor Government claims that it has put off the construction of freeways in Adelaide for 10 years, yet secretly continues to build them. In addition, it has entered into adventures of a most reprehensible kind. To overcome the Vh years study of the MATS plan it imported a smart talking American so-called expert for 3 weeks to oversee, comment and decide on the 2Vi year study. Of course it got what it paid for, that is, a program described by a Dr Bruning with this gem of a comment: ‘Where there is a developmental area there will be little traffic and therefore no need for metropolitan bus transportation’. I repeat that we have seen in South Australia a most disgraceful and reprehensible using of one of the major transport projects in Australia for straight party political purposes. I have a great deal of sympathy for Senator Durack in not wanting to have discipline placed on the expenditure of funds by the State Government in his pan of Australia. But for other reasons I find myself to be almost at the opposite end. I am wondering whether the Whitlam Labor Government could be any worse than the Dunstan Labor Government. I suspect, with full charity tonight, that it could not be as bad in respect to road planning. Therefore I am inclined not to support this amendment for the reason that South Australia does need some discipline in its road expenditures.

Senator Bessell:

– Think of the other States.

Senator STEELE HALL:

– I think of the other States and I think of the expenditure on roads. South Australia is about at the fag end of the allocations. We will deal with that in relation to the consideration of another clause. I remember the Bureau of Roads recommending in 1 969 that South Australia should get equal allocation with Western Australia. I notice that it has been recommended that South Australia should get $100m and Western Australia $ 150m. So something has altered dramatically in that regard. To return to this clause, I hope that my attitude on this matter is clear to Senator Durack. I have a great deal of sympathy for him in relation to the position of his own State Government, but I am seeing utter chaos in my State under the maladministration of the present State Government of its road program. I would like to hear the reply of the Minister on this aspect. At this moment I am inclined to support this provision in the hope that the Government of which he is a member will be able to discipline its undisciplined colleagues in South Australia.

Senator MILLINER:
Queensland

– I found it rather amusing tonight to hear Senator Durack criticise the Minister for Transport (Mr Charles Jones) for some sloppy preparation of material for the Senate. One would think that Senator Durack, having said all those unkind things about the Minister, would be perfect himself. But what do we find? In relation to the first amendment he has circulated in the Senate he had to say: ‘I am sorry, Mr Chairman, but I should not have put that in because it is completely wrong’. Have honourable senators ever heard such an admission from one who is so suspect himself that all he can find in others is suspicion? Senator Hall referred to the actions of the Premier of his State of South Australia. I think that he has been a little fortunate. My political opinion may be coloured too, but if the honourable senator had had to work under a Country Party Premier since 1957 I think he would admit, seeing there are so many things that need to be done in Queensland, that it is about time an Australian Government took an interest in the affairs of the State governments and the local government authorities.

Senator Greenwood, who is trying to interject, comes from a pocket-handkerchief State so he had better keep out of it. He has had about 15 hours in the last 2 days so I suggest he leave it at that.

Mention was made tonight of the road from Brisbane to Cairns. Honourable senators who have been on this main road would know how many miles are single track areas. Surely it is time, having regard to the number of motor cars that use this road, that something was done to improve it. I say, with respect, that Senator Durack endeavoured to gild the lily in the remarks that he made tonight. May I remind the honourable senator that by seeking to delete subclause ( 1 ) of clause 4 he consequently has no clause at all left.

Senator Durack:

– Of course we have. We have the rest of them.

Senator MILLINER:

– Where do you say that you start clause 4 in the rest of your amendment? If the honourable senator is going to be so pedantic as to pick on Ministers he should be a little more careful in his own draftsmanship. Senator Durack has referred to all the powers of the Minister in clause 4(1). But he fails to give the Senate and the people of Australia the benefit of his knowledge of sub-clause (2). He says that the Minister restricts to himself all the responsibilities in clause 4(1). But the wording of sub-clause (2) says something entirely different from that, and it must be read in conjunction with subclause ( 1 ). For the benefit of the Committee I will read the appropriate part of sub-clause (2) which states:

For the purpose of this Act, the Minister, after consultation with the appropriate Minister of a State -

What does that suggest? Does that not suggest that we will try to get an over-all situation throughout Australia, and that the Australian Government Minister- your Minister- would then co-operate and consult with the States on the programs that would be most beneficial to the States and to Australia? Are honourable senators opposite Australians, or will they continue to adopt the parochial attitudes that they have demonstrated in some quarters tonight? I say with due respect that there is absolutely nothing wrong with sub-clauses ( 1 ) and (2) of clause 4 because they give adequate provision for the Minister to confer with the States. There is no ambiguity whatsoever about what is contained in the sub-clauses. Sub-clause (2) states:

For the purposes of this Act, the Minister, after consultation with the appropriate Minister of a State-

may approve programs by way of-

i ) the construction of rural arterial roads;

ii ) the construction of developmental roads;

iii ) The construction and maintenance of rural local roads; and

minor traffic engineering and road safety improvements, respectively, in respect of the State for a period to which this section applies;

It has been suggested tonight that the Minister wants to ride roughshod over a State. There is nothing further from the truth when we examine the wording of sub-clause (2). It is all very well for Senator Greenwood who, I repeat, comes from the pocket handkerchief State of Victoria, to sit back and direct all the animosity at his disposal at Ministers of the Crown. The fact remains that this is the first attempt in the history of Australia that an Australian Government is trying to do something for local authorities. Consequently I urge the Senate to reject the amendment moved by Senator Durack.

Senator JESSOP:
South Australia

– I support the amendment moved by Senator Durack. I also support what Senator Hall has said about the state of South Australian roads under a South Australian Labor Government. I find it quite incredible that a former State Liberal Premier would even hesitate about this amendment which seeks to protect a State government from the authority of a Federal, socialist Minister. I find it quite extraordinary that his excuse for contemplating such support for the retention of this clause in the Bill is that a

Federal Labor Minister may be preferable to a State Labor government. As far as I am concerned that sort of excuse is untenable. I urge Senator Hall to reconsider and support our amendment.

Senator WOOD:
Queensland

– I have listened to this debate with very great interest having served for over 30 years on Tocal government- 15 years as mayor of my city, 6 years as State president of local government, 1 year as Australian president of local government, and as the person who was responsible for the initiation of town planning legislation in Australia because of the Mackay Town Planning Act. Therefore I have a very deep interest in local government. It has been rather interesting to hear some of the aspects put forward. Senator Durack pointed out what control the Federal government or Minister will have over local government. He instanced that the expenditure of their own collections on roads will have to be under the jurisdiction of a Minister of this Government. In addition, the expenditure of State moneys in council areas will have to be with the permission and under the jurisdiction of the Commonwealth Government which will also watch over the expenditure of the money it gives to the various local authorities throughout Australia.

Can honourable senators imagine what the position will be? As they know, in my State of Queensland- my Queensland colleagues on this side of the chamber and on the other side will agree with me- there is a very large area of country. As a consequence Queensland has a number of problems which other areas do not have. Honourable senators know that in the northern regions in particular we get very heavy mon.soonal rains. Good roads can be wiped out almost overnight because of the terrific fall of water, the rate at which it falls and the flooding of the area. Of course very often this brings an immediate problem. But basically there is always the great problem of the large areas of land which we have to cover with good roads. Tonight I heard my friend Senator Milliner discussing the bad roads under the Country Party-Liberal Party Government in Queensland. My mind goes back further. I say this: The roads in Queensland today are a paradise compared to what they were under the Labor Government.

Senator Mulvihill:

– Ambassador Gair will come back and give the honourable senator curry.

Senator WOOD:

– If Vince Gair were here I would still say the same. I am speaking factually.

Let me recall the situation to those people who are not Queenslanders. They may remember it by this illustration. Honourable senators will remember the Redex motor trials. The area between Rockhampton and Mackay was called the horror stretch.

Senator Cavanagh:

– That is where you were mayor. That was your district.

Senator WOOD:

- Senator, irrespective of your fine analytical mind and judgment, that was beyond the city boundaries of Mackay. That area did not come under my jurisdiction in any shape or form. It was the Mains Roads Department under a Labor government which was supposed to be looking after that main north coast road which led from the north to the top of the State. In fact, in some sections of the State that north coast road did not really exist. It was just a bush track. That road was so bad that during the Redex trials it was known throughout Australia as the horror stretch. The Queensland roads were bad, and the period of time from which the roads in Queensland stepped forward and became of a much better standard was when Mr

Ernest Evans in the Country-Liberal Party Government took over as Minister for Main Roads. It was only then that the country areas really began to get proper attention.

Consideration interrupted.

The CHAIRMAN:

– Order! It being 1 1 p.m., in conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:

That the Chairman do now leave the Chair and report to the Senate.

Question resolved in the affirmative. (The Chairman having reported accordingly.)

page 1037

ADJOURNMENT

The PRESIDENT:

– Order! In accordance with the sessional order relating to the adjournment of the Senate, I put the question:

That the Senate do now adjourn.

Question resolved in the affirmative.

Senate adjourned at 11.1 p.m.

page 1038

ANSWERS TO QUESTIONS

The following answers to questions were circul

Inflation: Tariff Reductions (Question No. 6)

Senator Greenwood:

asked the Minister representing the Prime Minister, upon notice:

1 ) Did the Prime Minister and the Minister for Overseas Trade state on 18 July 1973 that inflation could be onset by an increase of supply of goods to Australia.
Did they jointly state that tariffs were to be reduced so that imports might increase in the short-term to help meet inflationary pressures in Australia.
Has the tariff reduction led to an increased supply of goods to Australia.
Has inflation been offset; if so, in what way.

Senator Murphy:
ALP

– The Prime Minister has provided the following information for answer to the honourable senator’s question:

1 ) No. See statement on tariff reduction in House of Representatives Hansard of 2 1 August 1973 on page 167.
Yes.
The value of imports of goods and services in constant price terms was 3 1 per cent higher in the first three quarters of 1973-74 than in the corresponding period of the previous financial year. Although constant price estimates are not yet available for the June quarter 1974 a similar rate of increase is thought to have occurred during that period. Hence for 1973-74 as a whole imports would have contributed over 40 per cent of the increase in total supplies of goods and services, an unprecedented contribution from the external sector. The increased flow of imports reflected the confluence of several factors, including the growth of domestic demand pressures, the external revaluation of the Australian currency and the tariff cuts referred to. Although it is impossible to determine with any accuracy what part of the substantial increase in imports was due to particular factors, the tariff cuts undoubtedly contributed to the increase.
The increased volume of imports referred to in (3) has assisted in diverting pressures from domestic resources and hence in countering inflationary demand pressures. The slowing in the rate of price increase of imported goods consequent on the tariff cuts has had direct effects on final prices within Australia as well as indirect effects via increased competition between domestic and overseas supplies. Retail prices do not, however, appear to have reflected the full effect ( see answer to question No. 7 ).

Tariff Reductions (Question No. 7)

Senator Greenwood:

asked the Minister representing the Prime Minister, upon notice:

1 ) Did the Prime Minister and the Minister for Overseas Trade state on 18 July 1973 that the Joint Committee on Prices would be asked to ensure that consumers got the full benefit of the 25 percent reduction in tariffs.
) To what Joint Committee were they referring.
Have consumers got the full benefit of the 25 percent reduction in tariffs.
Did the Joint Committee have the power to ensure that consumers got the full benefit of the reductions; if not why was it asked.
If the Committee had the power, why have not consumers got the full benefits of the reduction.

Senator Murphy:
ALP

– The Prime Minister has provided the following information for answer to the honourable senator’s question:

1 ) Yes. See statement on tariff reduction in House of Representatives Hansard of 2 1 August 1973 on page 167.
The Parliamentary Joint Committee on Prices, appointed on 12 April 1973 (see House of Representatives Hansard page 1451). It was again resolved on 23 July 1974 to appoint the Joint Committee on Prices (Senate Hansard page 342).
The individual effect of the 25 per cent reduction is difficult to determine, as the currency revaluations that have taken place would tend to have a similar effect. On the evidence available, however, retail prices have not reflected the full effect of the tariff reduction and currency revaluations.
The functions of the Committee are to inquire into and, as appropriate, report upon:
1. complaints arising from prices charged by private industry and by the public sector;
2. b ) movements in prices of goods and services in particular fields or sections of private industry and the public sector, for example, as measured by price indices; and
3. such other matters relating to prices as may be referred to the committee by resolution of either House of the Parliament.

The Committee has been examining the matter within these terms of appointment.

See (4) above

Import Prices: Tariff Reduction (Question No. 8)

Senator Greenwood:

asked the Minister representing the Prime Minister, upon notice:

1 ) Did the Prime Minister and the Minister for Overseas Trade jointly state on 18 July 1973 that the Government was determined that import prices should respond to the 25 per cent tariff reduction.
Have import prices responded to the tariff reduction; if so, in what way did they respond.
Did the response take place in the way the Government determined.
What action did the Government take to ensure that import prices responded to the tariff reduction.

Senator Murphy:
ALP

– The Prime Minister has provided the following information for answer to the honourable senator’s question:

1 ) Yes. See answer to question No. 7.
The Department of Customs and Excise has carried out research on the effects of the 25 per cent tariff reduction and other factors on the landed costs of certain imported goods. These exercises have demonstrated that, in the main, these costs have reflected the 25 percent tariff cut.
and (4) There is evidence that retail prices have not fully reflected the reduction in landed costs. Under the Prices Justification Bill now before Parliament the Prices Justification Tribunal will have power to take more extensive and effective action in this area.

Inflation: Tariffs (Question No. 11)

Senator Greenwood:

asked the Minister representing the Prime Minister, upon notice:

Did the Prime Minister and the Minister for Overseas Trade state on 18 July 1973 that the tariff changes then announced would assist in the fight against inflation in the interests of the nation as a whole; if so, in what way have they assisted.

Senator Murphy:
ALP

– The Prime Minister has provided the following answer to the honourable senator’s question:

Yes. See answer to question number 6.

Telegrams to Local Government Authorities (Question No. 22)

Senator Button:

asked the Minister represent ing the Special Minister of State, upon notice:

1 ) Did the Leader of the Opposition recently send telegrams to all local government bodies in Australia asking their views on the Government ‘s economic policies.
2 ) Were 870 telegrams despatched at urgent rate.
3 ) Was the cost of the telegrams $5,776.
Who authorised this expenditure and who met the cost.

Senator Willesee:
ALP

– The Special Minister of State has provided the following information for answer to the honourable senator’s question: ( 1 ), (2) and (3) The Minister for Services and Property, whose Department administers the system whereby Federal Members of Parliament may send telegrams as an official charge, has informed me that accounts have been received by his Department for payment of 612 phonograms, at a total cost of $2,088.17, which were lodged between 7 and 1 1 June 1974 for despatch to certain State local government authorities and which were charged against the Federal Member’s Authority card on personal issue to the Right Honourable the Leader of the Opposition.

Details are listed in the table below. The contents of the phonograms are not known.

Telegrams charged against a Federal Member’s Authority are authorised by the particular Member to whom the Authority is issued. Costs are a charge on the estimates of the Department of Services and Property.

Motor Vehicles: Safety-related Defects (Question No. 38)

Senator Primmer:

asked the Minister representing the Minister for Transport, upon notice:

1 ) What information does the Minister obtain regarding the safety-related defect campaigns carried out by motor vehicle manufacturers.
Were the first Bedford ERV6 model trucks released with helper springs too short at the rear; if so, how many of these trucks were sold.
Did the manufacturers concerned recall the vehicles for modification; if so, how many were returned for modification.

Senator Cavanagh:
ALP

– The Minister for Transport has provided the following answer to the honourable senator’s question:

1 ) The Australian Transport Advisory Council of which I am the Chairman in July 1972 endorsed the Uniform Code of Practice for Safety-related Recall Campaigns prepared by the Federal Chamber of Automotive Industries. In July 1973 the FCAI agreed that all recall campaigns should be publicised. Detailed information is obtained about those recall campaigns which have been of specific interest to me. These details include number of vehicles involved, description of the nature of the defect, the method of rectification and other relevant background information.
2 ) General Motors Holdens have advised that some early production Bedford ERV6 model trucks were released with the helper spring top leaf two inches too short at the rear. This caused it to ride on the front corner of the helper bracket. It is not known how many Bedford ERV6 model trucks were fitted with the faulty component. Up to the time the manufacturers were alerted the model had been in production for five years and 127 vehicles had been produced. Some of these vehicles were fitted with helper springs two inches too short.
I am informed that as the manufacturers did not consider the fault to be safety related, no recall campaign was instituted. When the manufacturers became aware of the problem, in September 1973, all dealers and fleet owners were notified and arrangements were made for correction under warranty provisions with a specially prepared correction kit. Only two kits were requested by dealers.

Phosphate (Question No. 54)

Senator Walsh:

asked the Minister representing the Special Minister of State, upon notice:

What were the prices at which the British Phosphate Commission supplied comparable phosphate rock and sulphur to fertilizer manufacturers in each Australian State and New Zealand (a) before the end of June 1974 and (b) after the end of June 1974.

Senator Willesee:
ALP

– The Special Minister of State has provided the following answer to the honourable senator’s question:

The price of phosphate in each Australian State and New Zealand was:

$17.33 per tonne up to 30 June 1974, and has been

$35.97 since 1 July 1974.

The British Phosphate Commissioners are not principals in the supply of sulphur but act as managing agents for the Sulphur Purchasing Associations in Australia and New Zealand.

Cocos (Keeling) Islands: Voting Rights (Question No. 55)

Senator Withers:

asked the Minister representing the Minister for Services and Property, upon notice:

1 ) Are Australian citizens on the Cocos (Keeling) Islands entitled to vote at Federal elections: if not, why not.
Are all Australian citizens in all Australian territories in the same position: if not, why not.
If the answers to (1 ) and (2) are in the negative, what steps are being taken to rectify this matter so that all Australian citizens in all Australian territories are able to vote at Federal elections.

Senator Willesee:
ALP

– The Minister for Services and Property has provided the following answer to the honourable senator’s question:

1 ) An Australian citizen who is only temporarily domiciled in the Cocos (Keeling) Islands may retain voting rights in Federal elections, provided that he fulfils the enrolment qualifications specified in section 39 of the Commonwealth Electoral Act, and has retained enrolment for the appropriate Electoral Division. An Australian citizen permanently domiciled outside Australia is not entitled to enrol for a Division nor is he entitled to vote at Federal elections.
) Yes, in respect of external territories.
It is not proposed to change the ‘status quo’ concerning the enrolment and voting entitlement of Australian citizens permanently domiciled in external territories.

Senate Elections: Candidates (Question No. 56)

Senator Withers:

asked the Minister representing the Minister for Services and Property, upon notice:

1 ) How many candidates or groups of candidates at the Senate Elections in 1967, 1970 and 1974, did not receive enough votes to have their deposits refunded.
How many votes did each such candidate or group of candidates receive.
To what political party, if any, did the candidates, or group of candidates, belong.

Senator Willesee:
ALP

– The Minister for Services and Property has supplied the following answer to the honourable senator’s question. The answer to each of the three parts of the question are contained in the following tables dealing with the 1967, 1970 and 1974 Senate elections respectively:

In respect of each of these elections, the detailed list of candidates forfeiting deposits; candidates’ party affiliations; and first preference votes polled is prefaced by a summary, consisting of a two-part breakdown analysis on a StatebyState andParty basis respectively.

House of Representatives Elections (Question No. 57)

Senator Withers:

asked the Minister representing the Minister for Services and Property, upon notice:

1 ) How many candidates at the House of Representatives Elections in 1966, 1969, 1972 and 1974 did not receive enough primary votes to have their deposits refunded.
) How many votes did each such candidate receive.
To what political party, if any, did each candidate belong.

Senator Willesee:
ALP

– The Minister for Services and Property has provided the following answer to the honourable senator’s question:

The answers to each of the three parts of the question are contained in the following tables dealing with the 1966, 1969, 1972 and 1974 House of Representatives elections respectively.

In respect of each of the four elections the detailed list of candidates forfeiting deposits, candidates’ party affiliations, and first preference votes polled is prefaced by a Summary, consisting of a two-part break-down analysis of the number of candidates forfeiting deposits on a State-by-State and Party basis respectively.

Push Button Telephones (Question No. 104)

Senator Townley:

asked the PostmasterGeneral, upon notice:

When will the Postmaster-General’s Department introduce push-button telephones into Australia.

Senator Bishop:
ALP

– The answer to the honourable senator’s question is as follows:

There are still some factors not yet resolved in determining whether and when push button telephones might be introduced in Australia. I will let the honourable senator have more information as soon as outstanding issues have been decided.

Telephones: STD Tones (Question No. 103)

Senator Townley:

asked the PostmasterGeneral, upon notice:

Will the Postmaster-General have the length of the’pips’ that are heard at the beginning of a subscriber trunk dialled call reduced to a more reasonable length.

Senator Bishop:
ALP

– The answer to the honourable senator’s question is as follows:

Yes. The Department is aware from customer reaction surveys that a good many subscribers consider the STD tone is too long and that some find it annoying. It has been decided therefore to reduce the length of the signal.

It is not, however, a simple matter of adjustment and it will be necessary to modify some 40,000 items of exchange equipment throughout the telephone network. Supplies of the replacement component required for the purpose are expected to take about 6 months to procure and the modifications will then be effected as quickly as practicable.

Death Sentences in Chile

Senator Willesee:
ALP

– On 1 August 1974, Senator Gietzelt asked the Minister for Foreign Affairs the following question, without notice:

Is the Minister for Foreign Affairs aware that a military tribunal has sentenced to death 3 Chilean Air Force Officers and a top public official for collecting information about a clandestine military plot during the period of President Allende’s legal government and prior to the coup? Is it not the obligation of all responsible citizens to collate information about treasonable activities against a legal and democratic government and report it to the appropriate authorities? In these circumstances, will the Minister give urgent consideration to appealing to the Chilean Junta not to carry out the death sentences?

The answer to the honourable senator’s question is as follows:

. The Embassy in Santiago has reported that on 30 July the Chilean authorities announced death sentences for treason, conspiracy and sedition for ex-Colonel Ernesto Galiz, ex-Captain Raul Vergara, ex-Sergeant Belarmino Constanzo and one Carlos Lazo, former Vice President of the Central Bank. 2.I now understand that these sentences have been commuted to terms of imprisonment. While this welcome step was taken before we had time to raise the matter with the Chileans, they are of course well aware of our strongly felt attitude to the persecution of opponents of the Junta.

Cite as: Australia, Senate, Debates, 15 August 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19740815_senate_29_s61/>.

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Senate15 August 1974

PETITIONS

African Liberation Movements

Senator BAUME:NEW SOUTH WALES

Baltic States

Senator LAUCKE:SOUTH AUSTRALIA

Baltic States

Senator YOUNG:SOUTH AUSTRALIA

Senator YOUNG:

Baltic States

Senator JESSOP:SOUTH AUSTRALIA

Senator JESSOP:

Baltic States

Senator STEELE HALL:SOUTH AUSTRALIA

Baltic States

Senator DAVIDSON:SOUTH AUSTRALIA

Australia: Defence Forces, Flag and National Anthem

Senator MAUNSELL:QUEENSLAND

Australia: Defence Forces, Flag and National Anthem

Senator SCOTT:NEW SOUTH WALES

Senator SCOTT:

Baltic States

Senator BAUME:

QUESTION

NOTICES OF MOTION

Senator WITHERS:Western AustraliaLeader of the Opposition

The PRESIDENT:

Senator COTTON:New South Wales

QUESTION

MR GEORGI ERMOLENKO

Senator WITHERS:

Senator WILLESEE:Minister for Foreign Affairs · WESTERN AUSTRALIA · ALP

QUESTION

BALLY POKER MACHINE COMPANY

Senator POYSER:VICTORIA

Senator MURPHY:Attorney-General · NEW SOUTH WALES · ALP

QUESTION

PETROLEUM SUBSIDY

Senator DRAKE-BROCKMAN:WESTERN AUSTRALIA

Senator MURPHY:ALP

QUESTION

ASSISTANCE AVAILABLE TO ABORIGINALS

Senator KEEFFE:QUEENSLAND

Senator CAVANAGH:Minister for Aboriginal Affairs · SOUTH AUSTRALIA · ALP

QUESTION

REVIEW OF GOVERNMENT ASSISTANCE FOR VOLUNTARY ORGANISATIONS

Senator GUILFOYLE:VICTORIA

Senator WHEELDON:Minister for Repatriation and Compensation · WESTERN AUSTRALIA · ALP

QUESTION

MR HARRY MILLER: NATIONAL FESTIVAL

Senator MCAULIFFE:QUEENSLAND

Senator Douglas McClelland:Minister for the Media · NEW SOUTH WALES · ALP

Senator McAuliffe:

Senator Douglas McClelland:Minister for the Media · NEW SOUTH WALES · ALP

QUESTION

OAK INSURANCE COMPANY

Senator LAWRIE:QUEENSLAND · CP; NCP from May 1975

Senator WHEELDON:ALP

Senator Webster:

Senator WHEELDON:

Senator Webster:

Senator WHEELDON:

QUESTION

ABORIGINES: FOOD SHORTAGE AT WATTIE CREEK

Senator McLAREN:SOUTH AUSTRALIA

Senator CAVANAGH:ALP

QUESTION

UNEMPLOYMENT IN TASMANIA

Senator TOWNLEY:TASMANIA

Senator BISHOP:Postmaster-General · SOUTH AUSTRALIA · ALP

QUESTION

HUME HIGHWAY

Senator GIETZELT:NEW SOUTH WALES

Senator CAVANAGH:ALP

QUESTION

EFFECT OF INFLATION ON EDUCATION ALLOWANCES

Senator SCOTT:

Senator Douglas McClelland:Minister for the Media · NEW SOUTH WALES · ALP

Senator BISHOP:Postmaster-General · SOUTH AUSTRALIA · ALP

Senator Mulvihill:

Senate
15 August 1974

Senator BAUME:
NEW SOUTH WALES

Senator LAUCKE:
SOUTH AUSTRALIA

Senator YOUNG:
SOUTH AUSTRALIA

Senator JESSOP:
SOUTH AUSTRALIA

Senator STEELE HALL:
SOUTH AUSTRALIA

Senator DAVIDSON:
SOUTH AUSTRALIA

Senator MAUNSELL:
QUEENSLAND

Senator SCOTT:
NEW SOUTH WALES

Senator WITHERS:
Western AustraliaLeader of the Opposition

Senator COTTON:
New South Wales

Senator WILLESEE:
Minister for Foreign Affairs · WESTERN AUSTRALIA · ALP

Senator POYSER:
VICTORIA

Senator MURPHY:
Attorney-General · NEW SOUTH WALES · ALP

Senator DRAKE-BROCKMAN:
WESTERN AUSTRALIA

Senator MURPHY:
ALP

Senator KEEFFE:
QUEENSLAND

Senator CAVANAGH:
Minister for Aboriginal Affairs · SOUTH AUSTRALIA · ALP

Senator GUILFOYLE:
VICTORIA

Senator WHEELDON:
Minister for Repatriation and Compensation · WESTERN AUSTRALIA · ALP

Senator MCAULIFFE:
QUEENSLAND

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator LAWRIE:
QUEENSLAND · CP; NCP from May 1975

Senator WHEELDON:
ALP

Senator McLAREN:
SOUTH AUSTRALIA

Senator CAVANAGH:
ALP

Senator TOWNLEY:
TASMANIA

Senator BISHOP:
Postmaster-General · SOUTH AUSTRALIA · ALP

Senator GIETZELT:
NEW SOUTH WALES

Senator CAVANAGH:
ALP

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator BISHOP:
Postmaster-General · SOUTH AUSTRALIA · ALP

Senator BISHOP:
ALP

Senator WRIEDT:
TASMANIA · ALP

Senator BISHOP:
ALP

Senator BUTTON:
VICTORIA

Senator WILLESEE:
ALP

Senator SHEIL:
QUEENSLAND

Senator WHEELDON:
ALP

Senator DRURY:
SOUTH AUSTRALIA

Senator BISHOP:
ALP

Senator BESSELL:
TASMANIA

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator WALSH:
WESTERN AUSTRALIA

Senator MURPHY:
ALP

Senator MARTIN:
QUEENSLAND

Senator WHEELDON:
ALP

Senator PRIMMER:
VICTORIA

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator CHANEY:
WESTERN AUSTRALIA

Senator WILLESEE:
ALP

Senator CAVANAGH:
ALP

Senator WRIEDT:
Minister for Agriculture · TASMANIA · ALP

Senator GREENWOOD:
VICTORIA

Senator WILLESEE:
ALP

Senator Douglas McClelland:
Minister for the Media · NEW SOUTH WALES · ALP

Senator RAE:
TASMANIA

Senator WILLESEE:
ALP

Senator WHEELDON:
ALP