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Thursday, 2 December 1965

Mr HUGHES (Parkes) .- Mr. Chairman,I shall endeavour to answer what my honorable and learned friend, the Deputy Leader of the Opposition (Mr. Whitlam), has just put to the Committee.

This is a matter on which we joined issue in our respective speeches at the second reading stage. I think it will be apparent from what I have said earlier in the consideration of this measure that I am most anxious to see that it is passed in a form best calculated to enable the Commissioner of Trade Practices and the Trade Practices Tribunal in proper cases to stamp out what I may describe generically as malpractices - practices that on investigation are found to infringe the public interest. The issue that seems to arise between the Government and the Opposition on this point is a fairly narrow one. The issue is: In the light of the full consideration that has been given to this measure over a long period what is the best way to achieve the objective that I have stated? Would it be best achieved by providing for criminal prosecution of offences - by providing that the carrying on of certain practices shall constitute offences and by rendering those taking part in such practices liable to criminal prosecution? Would that be the best way to stamp out malpractices or would it be better on the other hand to rely on the system of investigation by the Commissioner and full inquiry before the Tribunal? For my part I have no hesitation in opting for the latter alternative.

I believe, firstly, that if we erect a system of criminal offences which are to be subject to prosecution we make the task of the prosecutor by no means easy of performance, for he will have to prove beyond reasonable doubt a case against a defendant or an accused, who may be a person or a company. Speaking from some experience in these matters, I have no hesitation in saying that it is no easy task to do this. The sheeting home of an offence by bringing proof that will satisfy the onus imposed in criminal proceedings is always or nearly always attended with considerable difficulty. This applies particularly when one has to embark on proof of matters such as object or intent. The amendment proposed by my honorable and learned friend - I am reading proposed clause 34a. - would create an offence, one of the ingredients of which would be proof of the object of the accused person. It is important to notice that it is the object. I would prefer to see clause 37 as proposed by the Attorney-General (Mr. Snedden) remain in the Bill so that this practice of price cutting with the object of driving a competitor out of business, which is part of the practice of monopolisation, can be investigated fully by the Tribunal. If this sort of thing is to be investigated by the Tribunal, I believe that one is more likely to achieve a situation through the action of the Tribunal in which these malpractices will be the more effectively stopped than if one relied on criminal sanctions.

It is solely with the view of seeing this part of the legislation - I refer to clause 37 in the amended form proposed by the Attorney-General - made as effective as possible for this entirely laudable object that I would oppose any proposal as now comes from the Opposition to make this activity of persistent price cutting with the object of driving competitors out of business a criminal offence. I do not think we will get very far if we do that, and certainly we will not get so far as we would if the matter were left to be resolved by the Commissioner, in the first place, and then by the Tribunal according to the less stringent civil onus of proof, which is the onus of proof which will apply before the Trade Practices Tribunal. For these reasons I oppose the amendment sought by the Deputy Leader of the Opposition.

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