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Friday, 3 December 1965


Mr WHITLAM (Werriwa) .- I wish to speak not to the amendment but to the clause itself. I believe that the honorable member for Grayndler (Mr. Daly) is entitled to have an answer to the case that he put. Clause 38 sets out the type of provisions which can be disregarded in determining whether an agreement must be registered and can be examined. Among others, agreements pursuant to the Trade Marks Act are exempt. The honorable member for Grayndler has shown that the Trade Marks Act has been abused to drive competitors out of business and to maintain resale prices. If the Trade Marks Act, which in some cases entitles a person to an exemption from examination of his agreements, can have the result, under the law as it stands, which the honorable member has cited, then this Bill should be amended to preclude the abuse of the Trade Marks Act in that way and to modify the exemptions under this Bill.

There is another exemption which I wish to mention. The whole of clause 38 is presumably meant to spell out the exceptions in the scheme put to the House on behalf of Sir Garfield Barwick by the Minister for Shipping and Transport (Mr. Freeth) on 6th December 1962. There were to be three exceptions to the list of practices required to be registered under Sir Garfield Barwick's scheme. In one respect, however, clause 38 goes very much further than Sir Garfield Barwick had proposed. Among the exceptions, to quote Sir Garfield Barwick's words, were " practices already regulated by law; for example, industrial agreements, contracts of employment and transactions pursuant to statutory primary produce marketing schemes ". The practices already regulated by law in the form of industrial agreements and contracts of employment are dealt with in paragraph (c) of clause 38. The exempt practices represented by transactions pursuant to statutory primary produce marketing schemes are stated by paragraph (b) of clause 38 to be -

.   . any provision of the agreement that is. or is of a kind, specifically authorised or approved by, or by regulations under, a State Act or an Ordinance of a Territory, except to the extent that the provision gives rise to a restriction to be observed in another State or Territory.

It will be noticed that the exemption is not confined to marketing schemes. It extends to any agreement authorised or approved by any State Act and/or any regulations under a State Act. Such acts and regulations can cover - they do already cover - a much greater variety of agreements than primary produce marketing schemes. To illustrate the scope of statutory exemptions I direct attention to the proposed amendment which the Attorney-General has himself now circulated to a subsequent clause of the Bill which he introduced more than six months ago. That amendment in effect exempts all practices relating to tied hotels, tied garages and chemists shops; many other businesses can be cited. Exemption is now to be granted in respect of any agreements which require lessees to purchase from their lessors all or any of the goods or services required in connection with the conduct of a business on the land leased. Similarly, exemption is to be granted in respect of any agreements which require businessmen to purchase such goods or services from persons who have lent them money or granted them credit. This is an exemption that was sever forecast, but it does show that our Parliament can make exemptions over a very wide field in respect of agreements and quite obviously any State Parliament can similarly exempt a wide range of practices. It has been made very plain by statements by the Premier of Victoria and the Deputy Premier and Chief Secretary of Victoria, outside the Parliament and to a certain extent inside the Parliament, although I have not checked " Hansard ", and again it has been made plain by statements in the Legislative Council of Victoria by the Minister for Local Government when introducing the Collusive Practices Bill that the Liberal Government of Victoria is strongly opposed to nearly every feature of this Bill. Accordingly, that Government is quite able and is probably minded to exempt many of the practices meant to be examined and registered under the Bill from any operation in Victoria. The attitude of the Liberal Party in Victoria has also been made manifest in this place in very many speeches made by the honorable members for Isaacs (Mr. Haworth), McMillan (Mr. Buchanan) and Balaclava (Mr. Whittorn).


Mr Buchanan - Quite independently, though.


Mr WHITLAM - This may be spontaneous resistance. However, it is resistance extending over a large and identifiable part of Australia. It does not need any regulation in the " Gazette " to identify Victoria as the part of Australia where this resistance is most marked and where it can be most readily implemented. Paragraph (b) of clause 38 enables any State Government to exempt any practices or agreements it likes from the operation of the Commonwealth Bill. This was not forecast by Sir Garfield Barwick. It was not in the Bill introduced last May. I have limited most of my participation in the debate in Committee to the departures from Sir Garfield Barwick's proposals of three years ago. This, however, is a most marked departure, and I suggest that the Attorney-General should explain why Sir Garfield Barwick's proposals, which were limited to marketing schemes, have been extended over such a wide, limitless field as this paragraph covers. Any State Government could set this Bill at naught by legitimating and thereby exempting a practice that the Commonwealth did not like.







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