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Friday, 3 December 1965


Mr CONNOR (Cunningham) .- by leave - I move -

1.   At the end of clause 40 add the following sub-clauses: - " (3.) The regulations shall provide for the maintenance of a special section of the Register, and for the filing in that section of such particulars as the Commissioner may direct, being -

(a)   particulars containing information the publication of which would, in the opinion of the Commissioner, be contrary to the public interest; or

(b)   particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of any mineral or other deposits or as to any other similar matter, being information the publication of which, in the opinion of the Commissioner, would substantially damage the legitimate business interests of any person. " (4.) The Register, other than the special section, shall be open to public inspection during such hours and subject to payment of such fee as may be prescribed by the regulations. " (5.) Any person may, upon payment of such fee as may be prescribed by the regulations, require the Commissioner to supply to him a copy of, or extract from, any particulars filed in the Register, other than the special section, certified by the Commissioner to be a true copy or extract.".

2.   At the end of clause 34 add the following sub-clause: - " (6.) The references in this section to the Register shall be read as references to the special section of the Register established in accordance with section 40 of this Act, and nothing in this section applies in relation to information contained in the portion of the Register other than the special section of the Register.".

When publicity was first given in the Press to the terms of the legislation as outlined by the Attorney-General (Mr. Snedden) the immediate reaction on the part of every section of the Press of Australia, and of all academics who have any legal experience, was criticism of the secrecy of the register of examinable agreements. That criticism has continued up to the point where, in a subsequent clause of this measure, some concession is being made. As usual, we have to refer to the general retreat from the terms and the spirit of the Barwick proposals. I refer to page 5 of the speech of the Minister for Shipping and Transport (Mr. Freeth). He said -

Documents placed on the register are to be open to inspection only by the leave of the Commission.

That provision at least went part of the way but for reasons best known to itself the Government chose originally to abandon the Barwick proposals and to make the register a completely secret register. One of the main reasons advanced for the principle of registration has been that in such a vast and complex field as restrictive trade practices it would be impossible for any Government to have available to it the trained staff necessary to locate, identify and list restrictive agreements. The Government felt that by imposing an obligation to register it would in fact get a good deal of the detective work done for it. Our amendments follow the precedent established by the English Restrictive Trade Practices Act, from which this Government has notably departed. In text and in principle a considerable part of the legislation follows the English Act but in this regard there is a complete departure from the English legislation.

Our amendments are drawn from section 11 of the English Restrictive Trade Practices Act of 1956, and in particular from sub-sections (3.), (4.), (5.) and (7.). There, with the utmost clarity and in accordance with good English democratic and legal traditions, maximum publicity is given where there is any possibility of wrong being done. In the English Act proper protection also is given. In the case of the English Act there is a separate section of the register. The English Act lays down that the register as a whole should be published but it says that in certain cases a special section of the register shall be set aside and only particulars will be recorded which contain information the publication of which would be in the opinion of the Board of Trade contrary to the public interest, or particulars containing information as to any secret process of manufacture or as to the presence, absence or situation of minerals or other deposits, or as to any other similar matter, being information the publication of which in the opinion of the Board would substantially damage the legitimate business interests of any person.

What clearer and more reasonable provision can there be than that? I have yet to hear from any Government supporter a single argument in favour of secrecy. It is true that in a later amendment the Government will go part of the way, but it is not prepared even at that stage to allow access to the register. It is prepared only to allow access to documents in the hands of the Tribunal itself. Even this access is to be only by consent. An inspection can be made on payment of a fee and a certified extract obtained, which is admissible in evidence. It seems to me that the Government, in the words of some critics, is making a rather belated entry into the 20th century. The Government is acting in a timid, diffident and reluctant way. The whole spirit behind this legislation is what might be termed one of complete empiricism. The Government is not prepared to admit anything or to adopt the practices that have been proved. It is not prepared to adopt principles that have been well established in any other country.

Here we have a definite precedent on the part of the United Kingdom where, for many years, a register has been in operation and where there has been proper access to it. Those privileges of access have not been in any way abused. What better way can there be of giving proper publicity and meaning to the additional information which this Government seeks than by having proper public access to a register of this kind? If a register is available for inspection, members of the public adversely affected by an agreement in the register will be in a position to give further information. As a matter of fact, one of the fundamental defects of this legislation is the limited nature of the powers given to the Commissioner for Trade Practices to obtain information. In England, the occupant of this position relies very heavily on public information, upon publicity and upon information obtained from trade journals for the necessary data on which to act. There is not the slightest doubt that the Commissioner in Australia would be beseiged by a whole horde of indignant people who would be prepared to give additional information to him and so expedite the proceedings of the tribunal. The Commissioner is a man of extreme power. We might say that he is acting in the best Star Chamber traditions. He has absolute, unfettered discretion. He is under no control beyond a gentle stimulus from the Attorney-General, who, at the behest of some individual, may choose to go along and say: " I want you to examine a practice or an agreement ". Beyond that, the Commissioner operates in complete secrecy. This is contrary to every democratic and legal principle and it is contrary to the public interest that a register that is utterly secret should be perpetuated in this fashion.







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