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Tuesday, 7 December 1965


Mr BUCHANAN (McMillan) .- Mr. Chairman,I do not propose again to go over the objections to the clause as a whole. They have been very well outlined by several of my colleagues. One of the features of this Bill that I find completely unacceptable is the lack of provision for appeal. There is no provision to enable a person who feels aggrieved to obtain redress at law. The proposed amendment will give some little hope to the unfortunate person who finds that he has inadvertently transgressed and who in the circumstances has no defence whatsoever. Since the proposed amendment will offer such a person some hope, I shall support it.

Mr. WENTWORTH(Mackellar) [4.411. - Mr. Chairman, I want to advert only to one or two matters. I was unable to follow the remarks made by my friend, the honorable member for Parkes (Mr. Hughes). Certainly there is some uncertainty about this measure in the minds of businessmen. Lawyers may be clearer about it, but I doubt that. The agreements that will be required to be registered under the terms of this measure include implied agreements relating even to quite small matters. I do not accept the view that what is intended in this clause is always clear. But, even if the honorable member for Parkes holds the view that the provision is always clear, he should still support the proposed amendment, because it will do no harm. Surely it is & good principle to allow the innocent to escape punishment. This should be a good principle for all lawyers particularly. Even if the harm done by this clause will not be as great as is thought by those of us who oppose it, the honorable member for Parkes, as a lawyer, should support the principle on which the proposed amendment is based - namely, that the innocent should have a reasonable chance of escaping infliction of a heavy penalty, without any loophole in the law, when they have been simply the victims of their own reasonable misapprehension about the meaning of provisions in the Bill or about their obligations under its terms.

This is not an easy measure for the little man to understand. I know that my friend from Parkes is a Queen's Counsel of considerable eminence. The business people who consult him are big people who do not mind paying high fees. But what about the small man? The honorable member perhaps does not understand that a complicated measure of this character will send shivers down the spine of a great many small businessmen. These will not be businessmen of the kind with whom he deals. They will be small men directly engaged in the day to day conduct of their own small businesses.

I should like to deal particularly with what the honorable member for Cunningham (Mr. Connor) said, Mr. Chairman. I consider that he ought to apologise to the Committee for misleading it either by design or, I prefer to think, inadvertently. He quoted a provision of the United Kingdom Restrictive Trade Practices Act 1956 and said that this was a provision introduced by the Tory Government in that country. He did not quote the relevant provision of the Act. One of my colleagues has just remarked that this was shameful. I do not go so far as that, because the honorable member for Cunningham may merely have been ignorant. He may not have misled the Committee deliberately and I do not accuse him of having done so. However, what he said was in fact wrong. He quoted the provision in the United Kingdom Act that provided a penalty for making a false declaration. That penalty is prescribed in sub-section (2.) of section 16 of the United Kingdom Act, which I have in my hand now. The honorable member did not read sub-section (1.), which is the relevant provision. Let me read it to the Committee. It states -

If any person fails without reasonable excuse to comply with a notice given to him under section fourteen of this Act, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding One hundred pounds.

That was the provision which the honorable member should have quoted and which is relevant to the clause now before the Committee. The provision in the English Act contains the vital words " without reasonable excuse". This is all that we want to put into the Australian Act. We do not want to put in anything more than is in the English Act which the honorable member for Cunningham, in his ignorance, was parading before us, namely, " without reasonable excuse ".


Mr Whitlam - Mr. Chairman, 1 ask that you control the honorable member for Mackellar. I submit that it is not permissible to refer to an honorable gentleman's ignorance in this matter. The honorable member for Cunningham was referring to the severity of penalties under this clause and in the British legislation on this subject. He followed speakers who had referred to the ruinous severity of the penalties and he was entitled to quote from the Act. I suggest it is not permissible to bring in what a member says on one subject under another head and then accuse him of ignorance of the subject. I suggest, Sir, that you control the honorable member for Mackellar in his method of debating this subject.


The CHAIRMAN - Order! The point made by the honorable member for Mackellar was one of debate. To a degree his remarks may have been undesirable, but they were not unparliamentary. The honorable member may use the expression as he desires.


Mr WENTWORTH - May I point out to the Deputy Leader of the Opposition (Mr. Whitlam) that I was being kind, not unkind, to the honorable member for Cunningham. The honorable member said something which was in point of fact untrue. He said that the English Act provided a heavier penalty for this kind of thing. He might have said this with the deliberate intention of deceiving the Committee or he might have said it in ignorance. I took the kinder alternative. What he said was untrue, but in what he said I do not think he was trying to mislead the Committee.


The CHAIRMAN - Order! I suggest that the honorable member for Mackellar has made his point.


Mr WENTWORTH - Thank you, Sir. If I may turn again to my friend from Cunningham, honorable members will recall that he said - the " Hansard " report will check my memory on this - that the English Act is this respect was more savage even than the Australian provision. I pointed out that the section which he read from the English Act refers to the making of a false statement and not to failure to register. It is a penalty for a different type of offence, one which is reprehensible and which, of course, requires a heavy penalty. But the kind of thing which is before the Committee in clause 43 is referred to in the English Act in much milder terms because the English Act leaves the gateway " without reasonable excuse ". I remind my friend from Cunningham that this expression appears in the English Act. Perhaps he has overlooked it. Because he is trying to bring our legislation into line with the English Act, I take it that perhaps he might even find himself called upon to vote for this amendment. We are asking only that a man who innocently commits a technical error should be able to plead his own goodwill in the matter. The innocent man should be able to escape the automatic penalty. But the bureaucrat, the advocate of the police state - I do not put the Attorney-General in that class because he has not even considered it-


The CHAIRMAN - Order! I have previously made suggestions to the honorable member for Mackellar about these comment's. I remind him of my remarks.


Mr WENTWORTH - I shall follow your suggestion, Sir, and sit down.







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