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Thursday, 2 December 1965


Mr CONNOR (Cunningham) .- The remedial procedures available to a person who has been seriously affected by an unlawful practice are extremely limited. In that regard it is worth contrasting the Barwick proposals with those contained in the present legislation. In the Barwick proposals registration of the agreement or practice, when reduced to writing, would in itself allow the affected party to continue the practice. If the party failed to stop the practice in question there would be two distinct offences with which he could be charged. One would be that of carrying on the practice and the other of failing to register the practice. In this legislation precisely the opposite state of affairs prevails. There is one offence only, namely the offence of failing to register an agreement or failing to reveal the facts of an examinable practice.

In ordinary law, if a person is being injuriously affected by the act of a neighbour he can apply to the Equity Court for an interim injunction to get urgent relief, because if the ordinary processes of the law were followed a considerable time could elapse before the case was heard. This Bill is undoubtedly deficient in that regard. There is a provision in clause 54 for an interim restraining order to be made, but that order cannot apply until proceedings have been instituted by the Commissioner under clause 47. Here we have a Government which not only omits two of the offences which were suggested by the former Attorney-General but is also prepared to allow those offences to continue, and the people who are being adversely affected by those offences to be literally eliminated from business or put in a position where they can never completely recover from the adverse effect of the practice concerned - because under clause 54, I repeat, it is not until proceedings are instituted by the

Commissioner that an interim restraining order can. be applied for.

Let us take the procedure that applies under the Act. In a normal case an agreement has to be registered and 30 days are allowed in which to do that. It will be one of hundreds, perhaps thousands, of such agreements. According to the words of the Attroney-General yesterday, there will not be such a lot of work to be done by the Tribunal in the early stages. There will be a lot of preliminary work to be done by the Commissioner of Trade Practices. He has complete discretion as to what he considers is an examinable practice. He can inform himself on that matter in any way he chooses. He can institute inquiries. In the exercise of his unfettered discretion, he has all the time in the world in which to decide whether or not he will act. Even if he does decide to act finally he still cannot do so under the terms of the Bill until there has been a conference with the wrongdoers at which he might be able to persuade them to alter the practice and see the error of their ways. I think the counterpart of that provision in the United States legislation is called a stipulation conference.

The point I want to make is that not only is the Government abandoning certain obvious offences outlined by the former Attorney-General but it is also denying the injured person the right even to get relief under an interim order until an absolutely unreasonable time has elapsed - it could be months or it could be years - in a particular case.







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