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Wednesday, 1 December 1965

Mr WHITLAM (Werriwa) .- 1 must say with respect that I do not think the answer of the Attorney-General (Mr. Snedden) to the honorable member for Moreton (Mr. Killen) is satisfactory. It was said from the earliest days when the Government was proposing this legislation that complementary legislation by the States would be necessary to make it effective. The previous Attorney-General - the present Chief Justice - was certainly of that opinion. After the legislation was forecast in the Governor-General's Speech opening Parliament in March 1960 there were two occasions on which the question of restrictive practices was debated on an urgency motion raised by a member of the Australian Labour Party - on 24th March 1960 about wool pies and on 27th October 1960 concerning tyres, batteries and accessories. On each occasion Sir Garfield Barwick stressed either that the practice was one entirely within the power of the States, since it was intrastate, or that it was not a. power that the Commonwealth could exercise single handed; it needed complementary State legislation. It was on this basis that later, in March 1961, the

Administrator in opening Parliament stated -

The Attorney-General has so far progressed in his investigation of this matter, and the Government has developed its thinking to the stage that consultation with the States win now be advantageous.

In his policy speech in November 1961 the Prime Minister (Sir Robert Menzies) said -

We desire, in co-operation with Stale Governments, to protect and strengthen free productive and business enterprise against monopoly or restrictive practices.

In opening the new Parliament in February 1962 the Governor-General stated -

Discussions between Commonwealth and State Attorneys-General . . . .are continuing.

In December 1962 the then Minister for the Interior (Mr. Freeth), in reading a statement on behalf of Sir Garfield Barwick said - and the pronoun in the first person refers to Sir Garfield -

May I say that, as a result of these discussions-

With the State Attorneys-General -

I have reason to believe that at least a clear majority of the State Attorneys would recommend to their governments the introduction of complementary State legislation to implement the scheme of legislation I describe.

At the Legal Convention in Hobart in January 1963, both in his paper and in his speech, Sir Garfield Barwick emphasised that complementary State legislation was desirable, probably necessary and, in fact, expected. How effective will this legislation be without such complementary State legislation?

Sir GarfieldBarwick's theme was the natural one that in an equivalent land mass the United States has 48 contiguous mainland States and Australia 5. Accordingly it was overwhelmingly more likely that transactions would be interstate in the United States than in Australia. One could not therefore expect Federal legislation to have the same effect in Australia if based purely on Federal powers as it would have in the United States. I am not overlooking the fact that the United States Federal Congress has intrinsically greater powers in its Constitution on trade and commerce than Our Constitution has; nevertheless Sir Garfield Barwick was careful to warn against any easy expectation that a Federal act in the United States would be equally effective if transferred to this country.

His whole view in 1960, 1961, 1962 and 1963 was that complementary State legislation was, as I have said, probably necessary, certainly desirable and probably to be expected. In my second reading speech on this Bill I quoted a statement by Mr. Hamer, the Liberal Minister for Local Government, in introducing the Collusive Practices Bill in the Victorian Legislative Council, as follows -

It might have been expected that the Federal Government would have sought in advance the co-operation of the States on its legislation . . . I am quite sure that it was the intention of Sir Garfield Barwick, when he was Attorney-General, to seek the co-operation of the States. I was present at a meeting of Attorneys-General late in 1962 when Sir Garfield Barwick said he proposed that when the Federal Bill had been drafted he would show it to the State Attorneys-General so that action could be co-ordinated. Unfortunately, that has not happened as yet.' The States did not see the Federal Bill before it was introduced into the Federal Parliament in May. In July, at a meeting of Attorneys-General, a request was made that the States either pass complementary legislation or refer their powers to the Commonwealth under the Constitution.

The Victorian Minister has made, in effect, a charge that the Australian AttorneyGeneral has not carried out the programme or the promise that the Chief Justice made when he was Attorney-General. I believe that we are entitled to have a statement from the Attorney-General as to what in fact did happen between Sir Garfield Barwick's translation and the present time.

On 14th September I put a question on the notice paper for the Attorney-General in these words -

On what dates, by what means and with what results has the Government consulted with State Governments concerning (a) the Bill and (b) restrictive practices in general?

Last Thursday evening the Attorney-General supplied this written reply -

My predecessor and I have consulted with the Attorneys-General of the States from time to time since 1961. The purpose of these consultations has been to induce the State Attorneys-General to propose to their governments legislation to complement the Commonwealth legislation. The consultations have all been on the confidential basis, and the particulars sought in regard to them cannot therefore be supplied.

I believe we are entitled to have the information. Sir Garfield Barwick stated that negotiations were taking place. The

Victorian Minister has stated that since Sir Garfield Barwick was translated no negotiations have taken place except by way of a suggestion made at the Standing Committee of Attorneys-General last July. If complementary State legislation is required we are entitled to know what is happening. Sir Garfield Barwick said that State laws or State jurisdiction by far occupied this field. He might have been saying this for the purpose of his argument on the wool pies and on the tyres debates but he said it. There is no question that there will be great gaps without complementary State legislation and we are entitled to know what has happened since his days. Is this still the view? If it is the view, how much has been done to effectuate the original intentions? It is a matter of notoriety that the Victorian Liberal Government, both in Parliament and outside, has let it be known that it objects to this form of legislation. I have stated on previous occasions that the principle held out to employers and investors in Victoria is that there will be " more booty under Bolte " - if they invest in Victoria their industrial standards will be lower or investment practices and commercial practices will be more relaxed, accordingly they should invest or employ in Victoria. This is scarcely the standard that we can follow here. It is not the standard that Sir Garfield Barwick proposed. It is not the standard that the Administrator, the Governor-General and the Prime Minister held out to the Parliament and to the public when this legislation was in its early years.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 9 (Constitution of Tribunal).

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