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Wednesday, 24 October 1973
Page: 1438


Senator WRIGHT (Tasmania) -The Leader of the Government in the Senate (Senator Murphy) has been afforded an opportunity to reduce the proceedings of this chamber to a despicable level, and I will tell the Senate why. We are engaged in a session demanding the attention of Parliament to a formidable program of legislation. The Government has not a majority in this chamber and the Opposition, when concerted, can reject any Bill that comes before the Senate. From that stems, of course, the great propaganda that any time Opposition members rise to speak they are frustrating the Government. This afternoon the motion that this Trade Practices Bill be made an order of the day for the next day of sitting was debated and an amendment to that motion was moved that the words next day of sitting' be left out for the purpose of inserting the words 'the first sitting day of 1974'. Those 2 matters were then debated together. Under the direction of the Chair- and I cannot imagine the stultification of any occupant of the chair, having allowed the debate on 2 matters to proceed together, allowing this- the Leader of the Government in the Senate was afforded the opportunity, merely as a matter of form after the Government was defeated in its attitude on the one substantive motion, to restate his proposition and cast slurs upon the Opposition.

I ask the Senate to reflect a moment on who are members of the Opposition. Yet the slur was cast that if we voted according to our consciences we would subscribe to the Murphy Bill; that if we voted in the national interest and not according to the dictates of outside interest we would vote for the Bill. I said by way of point of order that that was an offensive imputation and it was ruled that there was no point of order. I speak now of repetition. Having gained agreement from the Opposition to curtail the debate and have the question put after a brief debate, Senator Murphy, being defeated on the first limb, was given the benefit of a ruling, made for the first time in this chamber in my 24 years experience, whereby one substantive motion was allowed to be put into 2 brackets for form, the second bracket enabling a repetition of this debate. And what a rubbishy debate it was. Not having spoken in the main debate I will proceed to state my point of view.


Senator Greenwood - I rise to order. Why should not Senator Wright be allowed to speak in this chamber without the constant cacophony of noise and the barrage of interjections designed to prevent him from being heard? I submit that the Standing Orders should be observed.


The PRESIDENT - Order ! I was perfectly aware that Senator Wright was in control of the situation and the debate.


Senator WRIGHT - I shall state my point of view in answer to this distorted, deceptive and dishonest presentation of the Attorney-General. He thinks he has only to come in here with a Bill, trundle it onto the table and we will sit down like school children to be berated. As I said this afternoon he will soon get to the stage where, having brought in a Bill, he will have gendarmes at the doors to prevent any of us going out until we have been locked in and have considered the Bill. The fact is that the United States of America pioneered this legislation back in 1894. The United States then adopted the punitive legislation whereby the criminal court or the penal sanction was made the agency of enforcement of the legislation. The people who came within the ambit of that legislation for the first 20 years of the American experience chiefly were the trade union combines. Due to an accident of history an exemption was given to that legislation and it was turned wholly against capital in 1913.

In this country in 1914 the American legislation was copied. After one test of it in the High Court of Australia it was found to be so unmanageable that not a single case was brought before the courts or any tribunal after the Vend case in 1915. Mr Justice Isaacs gave a judgment of 315 pages in that case and it took him 3 days to deliver it. That brought in a practice which I hope will soon be copied in the Senate, Mr President. I hope that instead of hearing speeches a second time, honourable senators will do as the High Court Judges do and say: 'I am for the plaintiff and I hand down my reasons. ' So the Vend case put into the burial ground the Australian Industries Preservation Act, copied on the American legislation, because it proved to be completely unmanageable. No attempt was made by the Labor government in the 1930s either to amend it or to revive it.

Refuting the imputations- the dishonourable and despicable imputations- of the AttorneyGeneral that there are people on this side of the House who vote not according to their conscience but according to directives from outside, let it be remembered that during the long exile of the Australian Labor Party in opposition it was the Liberal-Country Party Government, through the mouth of Sir Garfield Barwick, and having been urged on by Senator Hannan and others in the Party, which brought in legislation to regulate trade practices. What sort of an answer is that, Mr President, to the jibe that we are not fair dinkum about this sort of legislation? Sir Garfield Barwick conferred with leading figures in the field in England, where the government of the day, for the first time, in the 1 950s- a Conservative government, not a Labour governmenthad brought in similar legislation. Our purpose being to make the legislation effective, it was then put before the Parliament and ample time was given to consider it and debate it. We wisely chose not the punitive form, not the form of enforcement that depends upon the criminal courts as the agency of enforcement, but the much more effective form of investigation and enforcement through the administrative agency of a Trade Practices Commissioner whose decision was subject to review by a semi-judicial tribunal.

That brings me face to face with the mendacious assertion of the Attorney-General. He said that there are 10,000 to 12,000 agreements on the register. The legislation that I referred to compelled everybody to register any agreement that might possibly be considered objectionable and there they were in the register for the scrutiny of the Commissioner and his staff at his will. If Senator Murphy had adhered to the truth in even one small department he would have told you, Mr President, that there were not 10,000 to 12,000 agreements requiring objection but that the number that really deserved examination, according to the evidence of his own officer at an Estimates Committee hearing last week, was about 2,500. It depends upon the vigour of that office and the determination of the Commissioner as to how soon he looks at those 2,500 agreements. The effective way of saying whether there was anything objectionable in those agreements would be by the use of his staff. I should think that in the time in which we wish to consider this Bill- 4 months- he could make a very ample stride forward in assessing those agreements and seeing whether any of them warranted institution of proceedings. So you see, Mr President, that if the Attorney-General were dinkum about the real ascertainment of objectionable agreements- if his motives were not political but really in the interests of the consumer community- he would say: 'I have an officer and a staff there before whom these 2,500 agreements are laid bare and awaiting examination. '

Mr President,the remarkable thing is that if this legislation were to go on to the statute book the Attorney-General would have to start getting evidence of any objectionable practice outside through other agencies de novo because I think that even the sense of honour of the AttorneyGeneral would preclude him from using agreements that were compelled to be registered, under the statutory authority of secrecy, for the purpose of enforcing penalties up to $250,000. So we find him exposed, like the canine with raw meat wanting to get into the scrub, with his penal legislation when all the time he has on the table of his office all these agreements yet not getting on with them. Out of the 2,500 perhaps 500 would deserve examination.

The next point is that that statutory authority being on the register, that being the position that could be operated for the benefit of any consumer public that might be prejudiced by these objectionable agreements over the next 4 months, the Attorney-General came into the Senate, not this time with a bundle of Australian Security Intelligence Organisation documents under each arm but with a Bill which he says is a good Bill. I have told the Senate that the Bill is archaic and that it goes back a century for its origin. It defines modern, effective administrative machinery and it imports an entirely new concept into Federal legislation. The law of the sale of goods was codified by one of the most expert draftsmen who over directed a pen in legal draftsmanship. He has received the plaudits of every judge who has considered the Sale of Goods Act. That Act probably has been translated almost word for word into every State Act. It is the basis of a well known interpretation of commercial documents which is tremendously important for stability and reliability in commerce. In recent times the States have added to it investigatory procedures for malpractices in the consumer realm. For the first time in Federal legislation, pan of this Bill seeks to override State legislation in different language that will create the utmost complexity and confusion.


Senator Milliner - I thought you said that you did not have time to study it.


Senator WRIGHT -I have spent 50 years studying the law, and it will take me at least 5 weeks, uninterrupted, to do this Bill justice in analysis. It is my right, as a member of the Opposition, to be given that 5 weeks at different intervals to 1 February next year. It has taken Senator Murphy 10 months to produce this legislation with the aid of consultants from America, with the aid of all his expert staff and with all the aid and experience of Mr Bannerman and his office. I think that it is one of the most frustrating experiences that I have had to face- to be beset with an exposition of an argument for the second time. I know that the Germans have a practice whereby they deliver the same speech once sober for sense and then a second time, drunk, for effect. If you want my speech in the latter condition next time, let me know. I have taken the opportunity to deliver this speech in the most deliberate, uninteresting terms, making it as dull as 1 possibly can for honourable senators opposite so that they will get the full benefit of drinking the mud that we had in the first debate and the sludge that we have in the second debate. Perhaps the Senate Standing Orders might be reconsidered for the purpose of precluding repetition of the same debate for which there is no sensible basis whatsoever.

This Bill comes before us fathered on an archaism almost a century old but ignoring the modern legislation which is much more effective and which does not depend upon criminal sanctions. The Bill introduces a new facet into the legislation, overrides the Sale of Goods Act, undermines the basis upon which commercial transactions are placed, and confuses the State consumer price protection legislation. Mr President, do these things give you any satisfaction? Do they persuade you to the view that on any reasonable basis a second debate is necessary? Having resolved that this Bill will not be listed as an order of the day for the next day of sitting, we are now asked to consider whether Senator Greenwood's date shall be inserted. This afternoon I co-operated in abridging a debate to enable the Government, if it wished, to get on and consider some of the Bills that are to come before us. When I saw Senator Murphy being afforded the opportunity to repeat this offensive, tedious nonsense I took the opportunity for the first time in this debate to give a little history, I hope to produce a little elucidation, and in my studied terms to make everybody realise that repeated debates are most tedious.


The PRESIDENT - Order! I suggest to honourable senators that I should take the point made by Senator Wright, that we are getting into a state of constant repetition. We know what the matter is. I suggest that we could proceed to deal with Senator Murphy's amendment by vote, if necessary, on the voices. I would like to put the question.


Senator Little - I raise a point of order. Mr President, I draw your attention to standing order 143 under the heading 'Amendments'. I believe that we are setting a precedent if we allow this debate to go any further. It is directly contrary to the Standing Orders because all the standing orders from 137 to 147 which deal with amendments must be read in conjunction with one another and not singly. Standing order 143 is specific. It states:

When the proposed Amendment is to leave out certain words in order to insert or add other words, the President shall put a Question, 'That the words proposed to be left out be left out, ' which, if resolved in the negative, shall dispose of the Amendment; but, if in the affirmative, another Question shall be put, that the words of the Amendment be inserted or added, instead of the words which are left out.

There is no provision in that standing order for the words of the amendment itself to be amended in any way at all. The standing order is explicit. It states:

.   . another question shall be put, that the words of the Amendment be inserted . . .

I think that is specific, Mr President, and I ask for your ruling on it.


The PRESIDENT - My ruling is this: The more I look at the Senate Standing Orders the more they remind me of the rules of golf. You have to read about 6 standing orders in conjunction with one another. Standing order 143 that you have cited to me, Senator Little, is controlled by standing order 149. So I do not uphold the point of order, but I suggest that I put the question and let us get on with the business.


Senator Poyser - Mr President-


The PRESIDENT - What do you want?


Senator Poyser - I want to speak to the amendment.


The PRESIDENT - All right. I cannot deny you the right to speak to the motion.







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