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Tuesday, 7 December 1965


Mr CONNOR (Cunningham) .- The arguments which have been advanced in support of the amendment of the honorable member for Moreton (Mr. Killen) are, I think, the best proof to the public of Australia of the amount of division within the Government parties. I think the events of the last three sitting days would have convinced the people of Australia that there is a very substantial body of opinion within the Tanks of Government supporters which is resolutely determined at all costs not merely to dilute this Bill but to destroy it. I say that because registration is of the very essence of this measure.

The argument advanced in favour of registration is simply this: That in the course of administration of this legislation, because it is unique in Australia, and because of the absence of precedent it will be very necessary to secure the cooperation of the business community. For that purpose, the proposals made by Sir Garfield Barwick for this measure have been very considerably modified in this Bill. Under the Barwick proposals, to obtain immunity, all that was necessary was to register the agreement. Having done that the person concerned had a perfect right to carry on his practices, whatever they were, good or bad, unless and until that agreement was struck off the register. In this particular case, precisely the opposite penalties applied. Under this measure, the agreement must be registered and in return for that there is immunity. There is no separate offence of carrying on a practice, which was the position under the Barwick proposal. Under the Barwick proposal, there could have been two separate offences: First, there was the offence of failing to register. Secondly, there was the offence of continuing a practice after an agreement had been struck off the register. In this particular case we have exactly the opposite. The register itself will be secret. There will not be general public access to it. In that respect the legislation is much more conservative and much more loaded in favour of the business community than the United Kingdom act.

It might be worth referring to the United Kingdom act because I notice an exact similarity. The honorable member for Mackellar (Mr. Wentworth) referred to the introduction of a police state and police state methods. If I might compare clause 42 of this measure with section 10 of the Restrictive Trade Practices Act, introduced in 1956 by a U.K. Conservative Government, we find that the police state idea was first introduced by Conservatives. I would assume, as a matter of logic, that the dissident supporters of the Government are prepared to accuse their own Attorney-General (Mr. Snedden) and the majority of their own party members of police state tactics. They are, of course, well able to defend themselves in that regard. But when we compare the requirements of registration in this Bill and in the U.K. act we find that they are almost identical. Under clause 42 of the Bill, the names of the parties to the agreement, the date of the agreement, and the whole terms of the agreement whether or not relating to relevant restrictions must be registered. The text of the English Act in section 10(1), paragraph (a) and paragraph (b) relating to particulars to be furnished for registration is -

(a)   the names of the persons who are parties to the agreement; and

(b)   the whole of the terms of the agreement, whether or not relating to any such restrictions as ' are described in subsection (1) of section six of this Act.

They are almost identical with the present Bill. Let us consider the penalties provided. Here I assume that the honorable member for Mackellar would apply his strictures to an English Conservative Government. We find that even worse penalties are provided in Great Britain. Section 16 (2) of the British Restrictive Trade Practices Act states -

If any person who furnishes or is required to furnish any particulars, documents or information under this Part of this Act, -

(a)   makes any statement, or furnishes any document, which he knows to be false in a material particular; or

(b)   recklessly . . .


Mr Stokes - That is a different thing altogether.


Mr CONNOR - This section sets out the penalties for making a false statement and for wilfully altering or suppressing a document. A person who does either of those things is guilty of an offence and is liable on summary conviction to imprisonment for a period not exceeding three months or a fine of £100, or both.

In refutation of the arguments advanced by the honorable member for Moreton, let me refer to somewords that Sir Garfield Barwick addressed to the 13th Legal Convention of the Law Council of Australia on 25th January 1963. He said -

Thus the proposal--

That is for registration - is that frankness on the part of the businessman be purchased by offering to keep his information on the register confidential, by acquitting him of making by registration an admission of the quality of his registered practice, and by providing that, until his registration is cancelled, carrying on the practice the document covers will not expose him to the risk of penalty, nor subject him to uncertainty.

On the other side of the picture--

I particularly emphasise this passage and repeat that these words were spoken by a conservative Attorney-General - . . and this is one of the occasions of the use of the criminal law - there is a prohibition under criminal penalty of carrying on a practice in this list without a document having been lodged. A businessman caught carrying on such a practice without registration has no answer. He cannot show that his practice is not harmful. It is felt that this is a justifiable use of the criminal law because the method of avoiding the breach is so simple - register. If a businessman wants to be perverse and completely uncooperative he must take the consequences. He cannot without registration justify his practice, even though in fact it could be justified. To obtain an opportunity to justify, there must be a registration.

The amendment before the Committee is deliberately designed to destroy utterly and completely one of the vital sections of the Bill. In the words of Sir Garfield Barwick, it is designed to aid, abet, incite and encourage the perverse and unco-operative businessman.







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