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Tuesday, 7 December 1965


Mr WHITLAM (Werriwa) (12:47 PM) . - I move -

In sub-clause (1.) omit " contravention of section 85 or 86 of this Act may recover the amount of the loss or damage by action against that other person.", insert " contravention of any of the provisions of Part IX. may sue for and recover from that other person treble damages for the loss or damage ".

If this amendment were carried clause 88 (1.) of the Bill would read-

Subject to this section, a person who suffers loss or damage by an act of another person done in contravention of an order of the Tribunal in proceedings under Part VI. or in contravention of any of the provisions of Part XI. may sue for and recover from that other person treble damages for the loss or damage.

Until this Bill comes into operation individuals and companies in Australia will continue to enjoy the rights given them by the

Australian Industries Preservation Act 1906. Section 1 1 of that Act provides -

Any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury.

Section 11 of the Australian Industries Preservation Act, reproduces section 7 of the Sherman legislation of 1890 of the United States of America. The provision for treble damages is well entrenched in United States law and practice. It has been a most effective measure in ensuring that United States business remains competitive, and eschews restrictive practices and monopolisation.


Mr Duthie - What does that mean - treble damages?


Mr WHITLAM - If I may translate for the honorable member for Wilmot (Mr. Duthie) it means that instead of an eye for an eye you have three eyes for an eye; or three teeth for a tooth would be a more felicitous example. The same provision has been on the Commonwealth statute book for the last 59 years. As a result of decisions given by the full High Court of Australia unanimously in Redfern's case last year and by Mr. Justice Taylor in Australian Capital Territory cases in the middle of this year, it is quite clear that this provision of the Australian Industries Preservation Act is a very live and effective one.

As I have pointed out before, it is because this provision is now so live and known to be so effective that at last the present Bill has been introduced, incorporating provisions to repeal the Australian Industries Preservation Act. It will be remembered -that Sir Garfield Barwick did not propose the repeal of that Act; that the Governor-General and the Administrator, in opening the Parliament, did not propose such a repeal, and that the Prime Minister (Sir Robert Menzies) in the election campaigns in 1961, 1963 and 1964 did not propose such a repeal. The repeal of that Act in this Bill stems from the High Court decisions of last year and this year.

The amendment that I have moved would preserve to the Australian people the rights which they have had for 49 years and which the United States has given to its citizens for the last 75 years. No reason has been given why this provision should be taken away from Australians or why, on an analogy with the United States experience, it should be denied to Australians. Accordingly, I have moved this amendment to preserve the rights which Australian residents and companies have and which no good reason has been shown for now denying to them.







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