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Thursday, 25 November 1965


Mr HUGHES (Parkes) .- I support the Bill and oppose the amendment. At the outset, I would like to say that the Deputy Leader of the Opposition (Mr. Whitlam) has been less than fair - perhaps that is not altogether unusual - in the strictures and criticisms he has addressed to the AttorneyGeneral (Mr. Snedden). I am sure my honorable and learned friend, the AttorneyGeneral, can take it, but members of the public are entitled to know that an unfair criticism has been made. I wish to make that point. The Deputy Leader of the Opposition at the beginning of his speech to the House tonight said that the Government chose to introduce this Bill because it became frightened when, within the last year or so, it was discovered that section 4 of the Australian Industries Preservation Act was within constitutional power. The impression that the Deputy Leader of the Opposition sought to convey was that this discovery was made quite recently as a result of the decision of the High Court of Australia and that it came, as it were, as a surprise to the legal profession and to the public. That is entirely false.


Mr Whitlam - I said that big business woke up to the menace of it.


Mr HUGHES - That is not what the Deputy Leader of the Opposition said, Mr. Speaker. I took a very careful note of what he said.


Mr Pollard - He would know better than the honorable member would.


Mr HUGHES - Having listened to some parts of the honorable gentleman's schoolmasterish and pedantic speech about industry, I rather doubt whether he did know what he was talking about. The point that should be made in fairness to members of the public who may be listening to this debate-


Mr Whitlam - They are no longer listening.


Mr HUGHES - I doubt whether that is right. The point that should be made in fairness to members of the public who are listening to this debate is that in the Redfern case, which is the case about which the Deputy Leader of the Opposition spoke, there was no serious question at all as to the constitutional validity of the Australian Industries Preservation Act. That point is made abundantly clear when one reads the judgment of Sir Owen Dixon who was Chief Justice of High Court of Australia at the time. In two short lines in his judgment he said that there could be no question of the validity, in the constitutional sense, of section 4. So this was not a discovery that was made late in the day nor a discovery that, as the honorable gentleman sought to insinuate, prompted the Government to bring in some other less drastic form of measure.

I come now to the next point that I want to make. The Deputy Leader of the Opposition tonight propounded an argument to the effect that the Australian Industries Preservation Act should be preserved alongside, he would imply, this measure or something like it. I would meet that argument by saying that if that were done nothing would be more calculated to cause confusion and uncertainty in the law. We must have one system or another of controlling restrictive trade practices in this country. It is of no use to try to run two systems in tandem. Not very much imagination is required to work out the effects that would result from such an endeavour. It would not be of any good to anyone, and most importantly to the consuming public, and certainly it would not be of any good to business, because business would not know where it stood. But despite what those on the other side of the House say it is very important that there be an element of certainty in the system of investigating and controlling restrictive trade practices.

It seems to me that the great argument which supports the proposal to repeal the Australian Industries Preservation Act rather than keep it on foot and which supports the proposal to substitute a new system for the control of restrictive trade practices can be stated in this way: Bearing In mind the need for reasonable certainty in commerce and trade, is it not much better to have a system of regulation and control under which the businessman knows that after he has registered a registrable agreement, and at all times thereafter until, as a result of investigation by the Trade Practices Tribunal, it is declared unenforceable, he is acting perfectly safely in pursuing the particular course of activity on which he is engaged? As I see the situation the objection to the sort of principles that we see enshrined in the Australian Industries Preservation Act is that they lead to uncertainty in matters related to the enforcement of restrictions on trade practices because commerce will not know, until the particular businesssman concerned has been either prosecuted or proceeded against in a civil action, whether what he was doing was legal or illegal. That sort of situation would be no good for the community. At whatever level of the community one lives, whether inside or outside commerce, it is in the interests of all of us that there shall be reasonable certainty in commercial activities.

The other objection to the retention of the Australian Industries Preservation Act which I have in point of principle and which I state in meeting this part of the argument put forward by the Deputy

Leader of the Opposition is that outright prohibition of a particular form of contract or arrangement without allowance for any inquiry about whether or not it serves the public interest is not well adapted to the needs of a country like ours with a relatively small scale economy. I will yield to none in asserting the importance of controlling restrictive trade practices that are contrary to the public interest. But we must bear in mind that important as it is to do that it is important also to realise that in our economy it is sometimes desirable to allow size to develop - always subject to the public interest - because thereby economies of large scale operation with consequent benefit to consumers may ensue. T think it will be found, if one looks at this matter and balances the pros and cons, that in our type of economy there is danger in preserving legislation such as the Australian Industries Preservation Act, firstly because of uncertainty and secondly because the prohibition imposed by it is too general and too widespread. This Act, of course, is modelled on the Sherman Act in the United States of America. I venture to say that the only reason why the Sherman Act has worked in the United States is that the economy of that country is so vast at to be able to stand the impact of the absolute outlawing of all types of contract's or arrangements - and, as has just been said close to me here, the cost.

The next matter with which I want to deal is the less than fair criticism of the Attorney-General by the Deputy Leader of the Opposition who said that the Minister had done everything in his power to discourage public interest in this legislative proposal. I read the newspapers, I suppose, with as much regularity and frequency as do most members of this place. My recollection is that almost every time I have picked up a newspaper over the last six months or so I have read of the AttorneyGeneral addressing some large gathering and explaining the legislative proposals of which he has charge. Reference to any reliable record will demonstrate beyond doubt that, contrary to what the Deputy Leader of the Opposition said here tonight, the Minister has done everything in his power to make the public aware, and fairly aware, of these proposals. He is to be commended on the great energy that he has expended and the industry with which he has pursued this aim.

I now turn to the next matter with which I want to deal. The Deputy Leader of the Opposition sought to attack the provision in this Bill for secrecy of the register of examinable agreements. It seems to me, Sir, that when one is assessing whether the Register of Trade Agreements should be secret one must make up one's mind in the first place on a vital and inter-related question. That is the question whether the system of examination of practices and agreements should be committed exclusively to the Commissioner of Trade Practices or whether, on the other hand, members of the public who claim to be injured by a particular agreement or practice should be given the right themselves to take proceedings without recourse to the Commissioner. That being the choice, I have no hesitation whatever in opting in favour of the principle that is enshrined in this Bill, namely that examination should be committed entirely to the hands of the Commissioner.

I say that because I want to see, as 1 think everyone in this House wants to see, a system of examination and restriction of restrictive trade practices which will be conducted in an orderly way and which will work. I have no hesitation in concluding that it is only by committing the task of examination of agreements and practices to the Commissioner that one will introduce any element of orderliness into this most important new field of law. I do not think the public interest will be well served if individual members of the community who claim to be injured by a particular practice are allowed to enter proceedings in their own name.


Mr Pollard - Keep them in the outer darkness. Leave them by the way.


Mr HUGHES - I ask the honorable member to stop mumbling because he is not saying much. The important thing is that the Commissioner should have a free hand to pursue the examination of the restraints on competition that are the really important restraints. If there is a fragmentation and diversification of activity, some being carried out by the Commissioner and some being carried out by individual members of the public who would have a right of access to the courts, I do not think the real purpose of this legislation will be quickly or adequately served. This task is one which is of considerable complication. It is a task to be entrusted to one man in whom the Government will have, no doubt, great confidence, and rightly so. It seems to me that if we allow individuals to bring proceedings in their own name, there will be no reasonable order of priorities in the carrying out of the work of the Tribunal. If that view is correct, it seems to me that there is no question as to what should be done about the register. We should reject out of hand any notion that the register should be open to people for the purpose of gratifying their curiosity or their desire for information. The only purpose of opening the register, it seems to me, would be-


Mr Pollard - The honorable member wants to create a gigantic secret society.


Mr HUGHES - The honorable member is becoming less intelligible as he goes muttering on.


Mr Pollard - Secrecy for the big fellow; the open court for the wage earner.


Mr SPEAKER - Order! I ask the honorable member not to interject.


Mr HUGHES - I go back for a moment to say that the only purpose of opening the register would be in aid of enabling persons to obtain information for the purpose of bringing proceedings in their own name and to act in their own right. Once one reaches the conclusion to entrust the job to the Commissioner, the need for opening the register to public inspection disappears. That is the way I would seek to answer that part of the criticism of this measure made by the Deputy Leader of the Opposition.

I come now to the next matter. The Government has been criticised by the Deputy Leader of the Opposition for not placing an absolute ban on monopolisation and for not placing an absolute ban on price cutting at a loss. The first matter to which I refer in dealing with this branch of the criticism offered by the Deputy Leader of the Opposition is this: Does he seriously think, on reflection - it should be borne in mind that reflection is a very good thing when one is embarking on a new system of legal enforcement - that the elimination of monopolisation will be promoted by imposing upon the people who seek to eliminate it in proceedings that may be taken an onus of proof such as would apply in a criminal case? It seems to me that if we were to place an absolute ban on monopolisation and make it a criminal offence, as was once proposed, we would not be serving a really useful purpose.

Once we brought that sort of activity within the field of the criminal law and subjected the prosecution to the necessity of making out the onus of proof to the standard required in a criminal matter - proof beyond reasonable doubt - we would get to a situation in which the successes of the prosecutor would be likely to be rather few and far between because an essential ingredient of monopolisation is the proof of a specific intent. That is not altogether or always easy. It seems to me, therefore, that the elimination of undesirable monopolistic activities is more likely to be achieved by the process of inquiry, investigation and examination before a tribunal, preceded as it will be, of course, by the very valuable provision for consultation before any proceedings take place. That provision is to be found in one of the clauses of the Bill. If one follows through the scheme of this Bill, one sees that the tribunal, acting in the informal way in which it is supposed to act, will have much wider scope and much freer scope for making findings adverse to monopolistic activities than a prosecutor would have if he had to take criminal proceedings against an alleged monopolist under some system of legislation which imposed an absolute prohibition on monopolisation.

The Deputy Leader of the Opposition then criticised this measure inasmuch as it did not deal with resale price maintenance. Of course, the Deputy Leader of the Opposition spoke only half the truth in that respect. I would like to be charitable and believe that he spoke only half the truth because he had not properly read clause 35 of the Bill. If one reads clause 35 one sees quite clearly that collective resale price maintenance is made an examinable arrangement if it is done pursuant to an agreement. It seems to me that there is both wisdom and common sense in the proposal which was adumbrated in the second reading speech of the AttorneyGeneral. He said that the legislation should first of all, in its reach, go out to the horizontal agreements - the multilateral agreements, as they are called- before embarking on the field of the vertical agreements. I venture to say that in this Bill we have a provision that collective resale price maintenance is examinable and a provision that an agreement providing for collective resale price maintenance may be declared unenforceable.

We may well get to a result - it is to be hoped that we do - in the course of a relatively short time, that it would become unnecessary to embark upon a complicated course of examining and investigating the vertical types of restrictive trade practice agreement. I see nothing of any force in the criticism that this Bill does not deal with resale price maintenance. As I say, it does do so. It deals with a most important part and it leaves the rest for future consideration, if it should be necessary. It may well be that it will not be necessary. Another interesting thing that the Deputy Leader of the Opposition did tonight - he did it in the earlier part of his speech was to serve upon the public due notice that, despite all the vicissitudes of the last generation, the Australian Labour Party still cannot learn the lesson of history. No doubt in some quarters this is thought to be a pity. I say this because the Deputy Leader of the Opposition said in unmistakable terms that it was and remains the policy of his party to extend the area of public enterprise at the expense of private enterprise.

It may be thought that the reason why this Bill is not being really opposed by the Labour Party - there is a sort of sham opposition as evidenced by the Opposition's amendment - is not quite the same reason as the reason why we on the Government side are supporting it.


Mr Whittorn - Speak for yourself.


Mr HUGHES - I speak for the great majority when I say that we on the Government side support it. I certainly do, and I am very glad to. This Bill may be thought by some - I know this is thought by many outside - to be a rather radical measure. Frankly, I am in favour of radical measures when they are necessary, and I think that if the day comes when this side of politics forgets - I do not think it ever will - that a bit of radicalism is a good thing in particular circumstances it will be a bad day. This may be in some respects a radical measure; but it is a truly liberal measure, too, because its primary objective is to preserve fair competition, reasonable competition, where this is consistent with the public interest.

I feel that on the other side of the House the attitude towards this Bill is that there is really no harm in the measure because, in the opinion of the Opposition, it will tend to weaken private enterprise. Honorable members opposite are so wrong. In truth, it will help to strengthen private enterprise - private enterprise in the best and proper sense of the term and private enterprise according to the sensible concepts of the latter part of the twentieth century. Some people outside may not agree with me, but in the course of time they will come to do so.

The thing that we as a Government party ought to bear in mind is that a fundamental part of our political philosophy is that we should act to preserve the small man from oppressive competition by cartels or large groups of people who, by acting in concert when such action is not shown to be in the public interest, deprive the small trader of the opportunity of running the competition race, or deprive the public of a wide freedom of choice in the availability of products.

Some of the criticism that has been levelled against this Bill outside this House seems to me to depend upon a fundamental fallacy. It is said that this measure is restrictive of the freedom of people to bargain; that it strikes at freedom of contract. Let it be remembered that the common law never recognised an untrammelled right in people to contract as they wish. Historically and traditionally, freedom of contract has always been limited by consideration of the public interest, and it is right that it should have been so. Such restraints as this Bill contains upon the freedom of contract are restraints imposed having regard to the wide public interest -


Mr Uren - It sounds as though you believe this.


Mr SPEAKER - Order!


Mr HUGHES - A public interest, let me tell my honorable friend who interjects, which depends upon reasonable freedom of people, big and small but particularly small, to carry on a fair trade without undue let or hindrance, without being subjected to blacklisting or to deprivation of supplies, and without being forced into circumstances in which they can get no supplies on the local market and therefore have to resort to imports. Having resorted to imports they then find that the people who have deprived them of local supplies are applying to the Tariff Board to bump up tariffs.


Mr Whitlam - And succeeding.


Mr HUGHES - Yes; succeeding in their application. That is not very good for freedom of competition which I have always understood to be one of the great planks of the platform of the Government parties.


Mr Uren - It does not exist under this Government.


Mr SPEAKER - Order! I will not warn the honorable member for Reid again.


Mr HUGHES - He is beyond redemption. This Bill is truly consistent with a great political philosophy and I think any member on the Government side of the House should be proud to support its principle.







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