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Monday, 24 May 1965


Senator MURPHY (New South Wales) . - It is, of course, a very difficult clause which we are considering, and the circumstances under which we consider it make it even more difficult for honorable senators to be able properly to bring their minds to bear on it.


The TEMPORARY CHAIRMAN - Is the honorable senator speaking to the proposed section 92 (3.)?


Senator MURPHY - Yes. It seems to me that the effect of proposed section 92 (3.) (a) is that it protects persons who otherwise would be in contravention of the new Act by holding an interest in excess of what is permitted. If those persons held such interest before the prescribed date, they would not be in contravention of the Act as it now stands. But it goes further than that. It seems to protect persons who were actually in contravention of the Act. It protects them if on or after the prescribed date action has been taken which, if it had been taken before the prescribed date, would have caused the holding of those interests or the existence of those other circumstances not to result in such a contravention. If a person held interests in contravention of the existing Act and if, after the prescribed date - and this may be in the future - he takes action which, had it been taken previously, would have brought him within the limits, does this mean there would be no contravention? Could he still hold those interests under the new Act?

This provision seems to protect not only those who were acting consistently with the existing Act, but also those who were acting in contravention of it. If that is a proper reading of it, it is a fantastic position. What proper justification can there be for extending protection to persons who were in contravention of the present Act? The provision in the Bill is in terms which allow them to take action on or after the prescribed date.


Senator Wright - Does not the provision refer to those who were not in contravention of the present Act?


Senator MURPHY - That is what is prescribed in proposed section 92 (3.) (i). But sub-paragraph (ii) states -

On or after the prescribed date action has been taken which, if it had been taken before the prescribed date, would have caused the holding of those interests or the existence of those other circumstances not to result in such a contravention;


Senator Wright - That refers to the present Act.


Senator MURPHY - Yes, but does that not imply that there was a contravention and that action, if it is taken after the prescribed date, renders it not a contravention? The provision seems to protect those who were actually in contravention.


Senator Cohen - Apart from the remedial action.


Senator MURPHY - Yes. It seems to protect even those who did not take remedial action before the prescribed date. They were clearly, as at the prescribed date, in contravention of the existing Act. It is enough for them to say, in effect, that they will take action at some time in the future, provided that action is such that had it been taken before the prescribed date they would not have been in contravention.


Senator Wright - It brings them into conformity with the present Act, not with the new Act.


Senator MURPHY - Of course. I am subject to correction by the Minister, but it seems to protect not only persons who are acting in accordance with the present Act, but also those who were acting in breach of the present Act by holding interests in excess of what was permitted. It is enough for them to say: " Well, we will now take action which will bring us within the limits of the present Act." In other words, it is protecting not only those observing the present law, but also those who are breaking the present law. They can take action at any time in the future, on or after the prescribed date.


Senator Wright - Yes.


Senator MURPHY - Senator Wright seems to agree with what I am suggesting. If it is correct - as I have said, it is a complicated Bill and we have not been given much opportunity to look at it carefully - it is an extraordinary proposition. Further, I think it would be wrong to describe this Bill as being retrospective if it were not for the existence of the protective clauses. It is not a true retrospective Bill when it applies to future circumstances. It provides for protection of the public interests because it says that in the future persons should not hold more than certain interests in licences. Because the conditions for holding licences are changed, that does not mean that the Bill is retrospective. An old instance of this was when the law was changed and it was provided that a convicted felon could not be the licensee of a hotel. It was said that that was not a case of retrospectivity at all. The law was being applied to the future situation.

It is unfortunate for persons who might not conform to the new policy of the law, but it is not retrospective. It is not making illegal what has been done before. In effect, the legislature is saying: " In the future, this is to be the law." It is extraordinary that here, over almost the whole field, the private interest of persons who have these holdings is to prevail against the public interest. The object of this measure is to protect the public interest by putting a limitation upon the interests of private persons and companies.


Senator Wright - It would not be so bad except for the provisions of proposed section 91 (8.). If you were assured that the authority regarding unrestricted renewals brought the provisions into conformity with the present law, it would be a different matter.


Senator MURPHY - That would be so. Obviously what ought to exist instead of this provision is a provision that persons shall be given a period of time in which to divest themselves of interests which they might have. The holding of interests during that period of divesting would not be ah offence. In this way private persons would be able to dispose of their interests and the public welfare would be served. As it is, the plain object of this enactment is being defeated by the protection which is being extended to private persons and corporations.







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