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Friday, 3 December 1965


Mr SNEDDEN (Bruce) (AttorneyGeneral) . - The suggestion of the honorable member for Maribyrnong (Mr. Stokes) strikes dear to me. I agree with him emphatically, but unfortunately this does not fall within my realm or his. It falls within the realm of the honorable and distinguished Clerk of the House, who will have the Bill put into a form in which it can go to the Senate. I think he will be the one to decide whether this paragraph will be numbered (i) or (j). I assure the honorable member for Maribyrnong that I will talk to the Draftsman and the Clerk to see whether the point he made can be adopted.

I come to the matter raised by the Deputy Leader of the Opposition (Mr. Whitlam). It is true that my distinguished predecessor, Sir Garfield Barwick, as Attorney-General, had published, through a speech made by my colleague, the Minister for Shipping and Transport (Mr. Freeth), a statement which included the elements of a bill that was proposed to deal with trade practices. The Deputy Leader has the document in front of him. It covers two pages that are about the size of a "Hansard" sheet. The Bill under consideration, as honorable gentlemen know, contains 105 clauses and covers 48 pages. One could not expect the two page document to contain all the details of the Bill. When Sir Garfield Barwick said there would be certain exemptions, he named three of them in the broad. But in drafting the Bill, this aspect could not possibly be left as it was expressed in the broad. People would ask: " What does it mean?" Therefore, precise expression had to be given to it

The proposal for the exemption of primary produce marketing schemes will in fact be achieved more directly than was formerly intended. The Deputy Leader and other honorable members will have seen an amendment that I circulated yesterday. It includes in clause 105 a regulation making power to exempt specifically primary produce marketing schemes and to do it directly by regulation under this legislation. What is referred to here in paragraphs (a) and (b) of clause 38 is the power of the Parliament in (a) the Commonwealth and in (b) the State Parliament to exempt some particular agreement or practice. Let me make this clear to honorable members; I am sure it is in all their minds. This Parliament is the best place in which to determine public interest. But it is not possible, of course, for the Parliament to give its attention to the whole range of matters where public interest has to be determined. The consequence is that the Parliament says: " For the majority of them we must erect some machinery - in this case a trade practices tribunal - to consider the public interest." But some matters are so important that the Parliament itself ought to determine the public interest. So it is with some of the marketing schemes. The Parliament itself decides that it will determine them.

The Deputy Leader of the Opposition made the point that a State government could, by exemptions, put this legislation at naught. I take the point that he makes, but I think he may also agree with me that, if a government decides to exempt some particular activity, it must stand up in the Parliament, justify its action and be subject to criticism. If it decides to exempt an activity, it must accept the job of justifying its actions. This is properly so. The other point is that if anyone envisages a State Government putting the Act to naught by a wide-ranging series of exemptions, I think this is unlikely to happen because it is only when the State Government is coming in on a co-operative basis that we will have a State Government able to exempt. So one would not expect a State Government to pass legislation which the GovernorGeneral can decide is complementary and then proceed by exemptions granted in the Parliament to set it at naught.

I think that the points made by the Deputy Leader of the Opposition deserve consideration - in fact they have been considered - and I am sure he will be satisfied with what I have put to him.


Mr Whitlam - Does the AttorneyGeneral suggest that a State Act referred to in paragraph (b) of clause 38 could have an effect only if the legislation of that State had been declared by the Governor-General to be complementary to this Bill?


Mr SNEDDEN - It is not intended that a State Parliament should be able to give an exemption to State activities without the need for it arising, and the need would not arise until the State Government had, by co-operation or reference of power or something of that kind, put purely intrastate matters within the reach of this legislation. If the State Parliament puts intrastate matters within the reach of this Parliament, then that State Parliament will have the power to exempt in relation to these things.


Mr Clyde Cameron - This is to make it easier to obtain agreement with the States to the exercise of Commonwealth powers over restrictive practices.


Mr SNEDDEN - No, I would not say it is for the purpose of making it easier - quite the contrary. It is something which needs to be there. If it were not there the State Governments would say that the Commonwealth has power to exempt certain activities which the Commonwealth Parliament says ought to be exempted and in the Commonwealth Parliament the exemption is made and that Commonwealth Parliament or the Commonwealth Government of the day has to justify it. The State Governments would equally validly say in relation to wholly intrastate matters that there ought to be a comparable power for the State Government or the State Parliament. So this provision is inserted. It is not a case of making it easier. I suppose in a manner of speaking it is making it easier, but it is not what one might call an enticement or anything like that. It is something that must be there if there is a legislative Act of the State which brings intrastate matters within the ambit of the Parliament.


Mr Whitlam - It certainly could provide for a wider exemption than one covering only marketing schemes?


Mr SNEDDEN - Indeed it could. I readily accept that. I return to my earlier point that the Parliament can decide itself to determine where public interest lies, but I would not accept the proposition that a Parliament would readily do it. It would have to be a matter of sufficient importance for the government of the day to decide that it should be handled in this way.


Mr Clyde Cameron - Is the AttorneyGeneral sure that this has not been put in to placate Mr. Bolte?


Mr SNEDDEN - Oh, no.


Mr Whitlam - Does the AttorneyGeneral intend to say something about the trade mark matter raised by the honorable member for Gellibrand (Mr. Mclvor)?


Mr SNEDDEN - Yes. I apologise for overlooking that matter. Perhaps I wander from the point a little here, Mr. Chairman, but I have had the advantage of discussions with the honorable member for Gellibrand about this matter. I went into it very closely from two angles. One was the legal angle in the ordinary statutory law sense, this being a trade mark matter, and the other was the restrictive practices angle. As to restrictive practices no issues were raised which concerned me because there was involved none of the three practices with which I was concerned. The three practices are: Firstly, by threat or promise inducing an advantage; secondly, forcing a third person's product; thirdly, inducing a refusal to deal on behalf of a trade association or pursuant to an agreement. None of those practices was involved in these circumstances, so trade marks are exempted in relation to those practices but only in relation to those three. In relation to monopolisation trade marks are not exempted, but none of these three practices was involved and as far as I could see monopolisation was not involved and it did not raise an issue in relation to the trade marks legislation.

What was involved there was a straight question of law. It was a question of one person who had a trade mark and had assigned his trade mark rights to somebody else, as he was entitled to do under the law, and of the person who was the assignee of the trade mark seeking to enforce the rights which he had bought from the trade mark owner. So there are three parties. There is the trade mark owner, and he, so to speak, has departed from the scene, if I remember the facts correctly. He assigned his rights in connection with that trade mark to somebody in Australia. So there is a person who has a trade mark in Australia and who has paid a valuable consideration for it. Then there is some other person who is using the trade mark, and the person who has bought the right to use it says that it is costing him money while a third person, who is not entitled to use the trade mark, uses it. This was a question of law. I answered the honorable gentleman by letter. I think the honorable member for Grayndler (Mr. Daly) read the letter, and it will be in "Hansard". The honorable member for Gellibrand should suggest that his constituents take the matter to their legal advisers and get legal opinion on it.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 39. (1.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act. (2.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice by reason of acts or things done or proposed to be done in a particular State or Territory, regard shall not be had to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act of that State or an Ordinance of that Territory. (3.) In determining whether a person has engaged, is engaging or proposes to engage in an examinable practice other than a practice of monopolization, regard shall not be had to a provision or condition referred to in any of paragraphs (c) to (h) (inclusive) of the last preceding section or to any act or thing done in pursuance of such a provision or condition. (4.) In determining whether a person or combination has engaged, is engaging or proposes to engage in an examinable practice of monopolization, regard shall not be had to a provision referred to in paragraph (c), (d) or (e) of the last preceding section or to any act or thing done in pursuance of such a provision.







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