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Friday, 3 December 1965


Mr SNEDDEN (Bruce) (AttorneyGeneral) . - I move -

After sub-clause (2.), insert the following subclauses: - " (2a.) 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 done or proposed to be done in relation to the carriage of goods by sea between Australia and places outside Australia. "(2b.) In determining whether a person (other than a trade association or a person acting as a member of, or on behalf of, a trade association) has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had to -

(a)   a term or condition imposed or to be imposed by the owner of land, in connexion with the grant of a lease or licence in respect of the land, being a term or condition by which the grantee, or a person deriving rights in respect of the land through the grantee, is, or is to be required to acquire from the owner (or, if the owner is a corporation, from a related corporation) all or any of the goods or services required in connexion with the conduct of a business on the land; or

(b)   a term or condition imposed or to be imposed in connexion with the lending of money or the granting of credit to a person for the purposes of the carrying on by him of a business, being a term or condition by which the person receiving the money or credit is required, while any of the moneys lent are unrepaid or any of the credit granted is being availed of, to acquire from the person from whom he receives the money or credit (or, if that last-mentioned person is a corporation, from a related corporation) all or any of the goods or services required for the purposes of that business, unless the term or condition is imposed or to be imposed in pursuance of an agreement with a person carrying on a business other than the person on whom the term or condition is, or is to be, imposed.".

This amendment is for the purpose of inserting two new sub-clauses in clause 39. Let me first remind honorable gentlemen of the provisions of clause 39. Clause 38, which has just been agreed to, deals with exemptions with relation to examinable agreements. Clause 39 deals with exemptions in relation to examinable practices. I propose to insert sub-clauses (2a.) and (2b.). Subclause (2a.) is, like the earlier amendments, a consequential amendment in relation to ocean shipping and the Australian Industries Preservation Act. I should think that subclause (2a.) would not occasion anybody any difficulty because the matter has already been dealt with. But when one comes to sub-clause (2b.) one finds that there has been an exemption in relation to the practices of a term and condition which is required by the owner of a freehold when he licenses or leases the freehold to another occupant to carry on business on that freehold. This is a case in which a person holds a piece of freehold from which a business is conducted. He is the marketer of a particular item. He leases that freehold, on which is the business of marketing the item, and the owner of the freehold says to the lessee: " You can have the lease but a condition of the lease is that you must sell my products from it.


Mr Clyde Cameron - Would this apply to petrol stations?


Mr SNEDDEN - It would apply to a petrol reselling station. It would remove from examination by the Tribunal a term or condition of a lease or licence whereby, to use the honorable member's example, the petrol filling station was required by the owner of the freehold, being a petrol company, to resell the petrol of that company.


Mr Connor - Does it apply to tied houses?


Mr Jones - What about tyres, batteries and other things?


Mr SNEDDEN - The honorable member for Cunningham asks: " Does it apply to tied houses? " I do not see that distinction in this field - that is, if it was an hotel owned by a brewery and the brewery said: " We lease this hotel to you but you must sell our beer ". Then the honorable member for Newcastle asked: "What about tyres, batteries and accessories?". The answer - this is what I think is the meaning of the legislation; I must say that this is the way in which it was drawn - is that, if one person says to another person in relation to that freehold, " Not only must you sell my product from my freehold but you must sell this other person's product ", that would fall, as an examinable practice, within clause 36 (1.) (b). The answer is that the person who owns the freehold can require the person to whom he leases the freehold to market from that freehold goods which the owner of the freehold himself markets.


Mr Jones - What would be the position if the manufacturers or distributors of petrol and tyres formed themselves into a combine, as has been done in America, reached agreement to distribute petrol, batteries and tyres, and then had their tied service stations?


Mr SNEDDEN - I would not attempt to give an answer to a theoretical question of that kind. I know that the honorable gentleman is wanting some clarity, and I should like to satisfy him. But as I said, I cannot answer a theoretical question. Over the period that I have been concerned with developing this legislation, as a backbencher and then as Attorney-General, I have steadfastly refused to say anything about particular activities which might be thought by anybody to be prejudging them. So I shall not answer the question in the way in which it was put.

I direct the honorable gentleman's attention to the way in which the amendment is drawn - (2b.) In determining whether a person (other than a trade association or a person acting as a member of, or on behalf of, a trade association) has engaged, is engaging or proposes to engage in an examinable practice, regard shall not be had

Then, after reference to a term or condition relating to the real property these most significant words would appear - unless the term or condition is imposed or to be imposed in pursuance of an agreement with a person carrying on a business other than the person on whom the term or condition is, or is to be, imposed.

That means that regard will not be had to the term or condition imposed unless it is imposed pursuant to an agreement with a third person. The amendment has been drawn in a most significant manner. I do not say this offensively, but if the honorable member looks at these words carefully - I confess readily that they are not the easiest words to follow - and reads the words commencing with " unless the term or condition " in conjunction with the words " regard shall not be had to", the meaning will become clear.

Sitting suspended from 12.45 to 2.15 p.m.







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