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Thursday, 2 December 1965


Mr CONNOR (Cunningham) .- There has been quite a lack of speakers from the Government side in opposition to the amendment proposed by the Deputy Leader of the Opposition (Mr. Whitlam), but quite a spate of speakers from the freedom fighters group opposite on other important clauses of the Bill. The amendment raises fundamental principles. In particular, as the Deputy Leader of the Opposition has pointed out, two offences as adumbrated by Sir Garfield Barwick have been abandoned, and there has been some intense speculation as to the reasons for this. I would suggest an alternative reason to those already advanced - a very simple and elementary one. I suggest it is for no better or no worse reason than to protect public revenues. It is obvious that two offences - collusive tendering and collusive bidding - have been retained because the Government itself would suffer financially from them. The pattern has been repeated in the sovereign State of Victoria, where the Bolte Government has taken advantage of precisely the same two offences to make them illegal, by State legislation and in relation to intra-State practices. As for the rest, of course, this Government is intending to interpose as many possible obstacles as it can between restrictive practices and the need for their suppression and control.

When we consider this measure we must consider the degree of concentration of industry and commerce in Australia. We are lagging 70 years behind the rest of the world in control legislation. That being so we have the need to catch up. Monopolisation and predatory price cutting are offences which, in themselves, come within the category of per se offences.


Mr Bowen - Does the honorable member suggest that clause 37 will not be effective?


Mr CONNOR - It creates an examinable practice and nothing more. I would refer my honorable friend to the comment of Professor Brunt - I think a very reasonable comment - that there are certain practices which in themselves are so obnoxious, so wrong and so utterly contrary to the public interest that it would be a stark waste of time to go through the brolga dancing procedures of this legislation before coming to the final decision which was obvious from the mere initial examination of them.


Mr Stokes - Does the honorable member believe in judgment without trial?


Mr CONNOR - There are certain offences - and all crimes are in this category - that are so obviously offences against the person of the State that they ought to be and, in fact, are suppressed. The same applies to both of these offences. The honorable member for Parramatta (Mr. Bowen), of all men in this chamber, from his knowledge of criminal law should be well aware of that. There is not the slightest doubt that this kind of practice ought to be made an offence and no satisfactory reason for a contrary view can be advanced apart from nambypamby and shilly-shallying suggestions that we ought to examine them in more detail. What can be more obnoxious than predatory price cutting? What is the purpose of it? Its purpose is to destroy a competitor, and destroy him in the worst possible way - to use economic strength and the mobilisation of resources at the disposal of a major concern to destroy a rival and then to take full advantage of the rival's elimination by adding his business to the business of the major concern. The process can continue indefinitely. No satisfactory reason has been advanced, and none can be advanced, and there is not the slightest doubt that there has been a process of attrition ever since the Barwick proposals were first outlined in this House. Sir Garfield Barwick is to be given credit for his sincerity, but in terms of political astuteness he made the mistake of his life because, ever since his original proposals, the best brains in Australia have been busy on this Bill cutting, hacking, pruning, adding to and subtracting from it to the point where what is left is merely a caricature of the original legislation. Throughout the world there have been two schools of thought on the way to approach restrictive practices. The approach that has been most effective is the one based on the American pattern, and that is precisely the one which this Government seeks to avoid. It seeks to avoid it for the best of reasons. Last year, for the first time, it was discovered that contrary to the prevailing views of legal interpretation, the Australian Industries Preservation Act was found to be effective - to have teeth. Immediately legislation had to be introduced to destroy that Act and to remove the offences dealt with under the Act.

Under that Act, in respect of monopolisation there were offences which could lead to a criminal charge. In its current proposals the Government refuses to admit that certain practices and agreements obviously could be the subject of a criminal prosecution. I would be the first to admit that there are certain other practices which may or may not be restrictive in themselves and which should be subject to the examination of the Tribunal. But no-one can tell me that in an economy such as we have in Australia - I am now again quoting the words of Professor Hunter of the University of New South Wales - where we have a degree of concentration of control of industry twice that of the United Kingdom and three times of the United States, we should be shying at shadows. We have in this country no fewer than 1,200 trade associations, two-thirds of which are in some form or other actively engaged in organising restrictive trade practices. In some way they are seeking to control for their own benefit and to the public detriment the principle of open competition to which this Government rigidly adheres. This is ridiculous. It is an insult to the collective intelligence of this Committee that we should be asked to forego these two offences. I should like to quote the remarks of Mr. Walker, Lecturer in Law at the University of Sydney. His remarks were published in the "Australian Law Journal" of 30th August 1965. Referring to the Trade Practices Bill and the need for more per se rules, he said -

Yet its success or failure as an instrument of economic and social policy will depend as much upon the legal methods used to regulate the practices which fall within its compass as upon the range of matters dealt with, and on the former point the caution of the Bill is striking;-

That is the keynote of the comment - from its diffident appearance one might almost think that no other country had ever enacted an antitrust law, that there was no empirical evidence which the legislator could have used in order to pick more of the serious varieties of practices for prohibition. As the Bill stands, every instance of an examinable restrictive agreement must be registered and may be tested in comprehensive proceedings before the Restrictive Practices Tribunal.

There are, of course, two exceptions. Mr. Walker continued -

Two main reasons have been put forward for choosing the registration and ad hoc investigation method, and both are convincing when applied to the more ambivalent practices such as exclusive (not exclusionary) dealing which need not be harmful in a substantial percentage of cases. But they cannot justify insisting on detailed individual inquiries into the cruder and more plainly detrimental practices of the kind mentioned above.







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