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Tuesday, 7 December 1965


Mr KILLEN (Moreton) .- I will notlong delay the Committee. I ignore the persiflage that came from the lips of the honorable member for Grayndler (Mr. Daly). I ignore also the extraordinarily silly political remarks of the honorable member for Cunningham (Mr. Connor). He completely distorted my argument.


Mr Bryant - But--


Mr KILLEN - As for the honorable member for Wills, if brains were water he would represent Ayers Rock. The honorable member for Cunningham completely distorted my argument. My argument dealt with a simple point. Even the AttorneyGeneral himself has not comprehended my argument. The point is this: Clauses 35, 36 and 91 prescribe what shall constitute an agreement. I have submitted that there is a grave area of doubt as to whether an examinable practice could in fact constitute a registrable agreement. That is my point and nothing else. It does not demolish the Bill. Whether we make the penalty £1,000 or £10,000 is irrelevant. All I am concerned about is that no person should be immediately condemned because he has made an honest and genuine mistake. The Attorney-General claimed that I had argued that if a person seeks legal advice, ergo that should be a defence. I argued nothing of the sort. I pointed to the absurdity that, if a person obtained advice to the effect that it was an examinable practice and not a registrable agreement, that would not avail him. I have not clamoured for that to be made a defence. I have merely pointed to the fact that it does not constitute a defence. Clause 35 bespeaks of two people being in a competitive position. Nowhere in the Bill is competition defined. What is a competitive position? This is left by and large to the discretion of the Tribunal and this is the dominant complaint that I have against the legislation. It reeks of discretion. Some people may be prepared to endorse a system of an administrative, sub-legislative tribunal that has all these discretions but is not readily susceptible to proper control by the courts or answerable to the Parliament. If that is their political philosophy, they can have it; it is not mine. I come back to the argument of the Attorney-General that we can embrace either a system of registration or an investigatory process. He turned to clause 103 and said: " This is, of course, limited ". With the greatest of good will to my honorable and learned friend, it is not limited if the Commissioner has reason to believe - this is his discretion and it is not immediately open to control - that a person can give him a document. He can summon the person for that document to be presented and, if the person does not present it, he exposes himself to a fine of £500 or three months in goal. It is limited as to penalty, but it is not limited in terms of propounding a principle.

My point is a short one and I am very sorry that some members of the Committee have misunderstood it. It is simply that there can be a grave area of doubt as to whether something is an examinable practice or a registrable agreement. All I am asking is that, where that doubt arises, the person should be able to say: " I believed on reasonable grounds that it was not a registrable agreement". Then he would have to lead evidence to show that he did in fact have reasonable grounds - reasonable grounds that would be acceptable to a court of law, not merely an opinion tendered to him by a practising member of the legal profession.

The last thing I say - I say it only by way of pinpointing its irrelevance - is that under the United Kingdom position a person cannot avail himself of any gateway if he fails to register. Here it is an offence if he does not register and he faces a fine of £1,000. If an individual is put in that position through inadvertence, through honest mistake or through a belief, well founded but, in the viewof the Tribunal, erroneously founded, that he did not have to register an agreement, the Government says to him: "We will fine you £1,000, but, cheer up, you can still go along and argue before the Tribunal that this is not a registrable agreement". That is poor consolation. For the reasons I have given, I propose to divide the Committee on this amendment.

Question put -

The amendment (Mr. Kitten's) be agreed to.







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