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Tuesday, 7 December 1965


Mr KILLEN (Moreton) - I move -

After paragraph (c) of sub-clause (4.) insert tha following paragraph - " (d) he believed on reasonable grounds that the agreement was not registrable,".

I indicate to the Committee that I will seek a division on this amendment. This clause provides penalties for failure to furnish particulars. If an individual fails to register an agreements commits an offence. I have argued, throughout the various phases of the Committee debate, that with respect to a registrable agreement or examinable practice there does exist a desperately grey area of doubt. I have further argued that it would be virtually impossible in some circumstances for an individual to know whether he had on his hands a registrable agreement or an examinable practice. Last week I advanced the view that if an individual was genuinely in doubt and sought legal advice it might well be that the advice tendered to him would be: " No, this is not a registrable agreement, this is an examinable practice ", and when it came to the prosecution under this legislation he could not raise, by way of defence, the fact that he had sought legal advice. Now, I think that this is completely wrong and my amendment does not in any way disturb the principles upon which the Bill rests. I submit that it is eminently reasonable.

I submit further that when we are dealing with a statute that provides a penalty for an offence, there should never be any ambiguity. I do not think it is fair for any individual who may be caught within the ambit of the legislation to be in doubt as to his obligations. I do not weary the Committee by citing authority on this point but wherever a penalty is provided in a statute, the nature of the obligation which, if breached, gives rise to the penalty should be clear and explicit in all circumstances and on all occasions. No person should be put in a position where he has to fumble with cloudy and dark words in order to ascertain his obligation. But this is the position in which an individual is placed by this clause. The penalty is not inconsiderable. It may well be that with the utmost good faith an individual held the view that he had an examinable practice and not a registrable agreement, but that would avail him naught.

Another aspect of the legislation which the Committee should consider is that nowhere is there any obligation on the Commissioner to serve notice on the individual that he has a registrable agreement. Part of my objection would be met if there were in this clause or in some other clause a provision calling upon the Commissioner to serve notice on the party who, in his judgment, has a registrable agreement. If there were such a provision, part of my fears would dry up. But we have the absurd position of an individual being faced with a fine of 2,000 dollars notwithstanding that he has acted with utmost honesty and fairness and with a scrupulous regard for the law. I do not think this is fair enough and I hope that the Attorney-General will be able to accept my amendment which provides as a defence to a prosecution under clause 43 that the individual believed on reasonable grounds that the agreement was not registrable. The onus would be on the individual to show that there were reasonable grounds. I think that is a rugged enough circumstance as it is. In no way does the amendment detract from the principles of the Bill. I hope that the AttorneyGeneral may be persuaded to accept the amendment.







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