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Tuesday, 7 December 1965


Mr WHITLAM (Werriwa) .- I move -

At the end of the clause add the following sub-clause: - " (3.) The Tribunal may make an interim order of the kind referred to in sub-section (1.) of this section in relation to an alleged examinable agreement or practice on the application of a person who satisfies the Tribunal that, unless such an order is made, that person is likely to suffer grave hardship or irremediable injury, and such an order remains in force, unless sooner revoked, for such period as the Tribunal determines.".

Honorable members will recollect that under clause 47 the Commissioner of Trade Practices may institute proceedings in the Tribunal where he has reason to believe that an examinable agreement exists and that any relevant restriction accepted under the agreement is contrary to the public interest. Under clause 54 as it stands, where the Commissioner has instituted such proceedings and the Tribunal is satisfied that there may be grave hardship to any person or irremediable injury to the public interest, the Tribunal may make interim orders banning the practice. My amendment would give to individual persons who, in the eyes of the Tribunal, were likely to suffer grave hardship or irremediable injury the right to seek such interim orders.

This is another attempt on our part to restore the essentials of the scheme that Sir Garfield Barwick outlined three years ago yesterday. Honorable members will remember that he proposed that the Tribunal would be open to proceedings at the instigation not only of the Commissioner or the Crown but also of private citizens. Earlier in the Committee stage, my colleagues and I pointed out that rights which private citizens and companies had under the Australian Industries Preservation Act were being taken away because, quite contrary to any proposal by Sir Garfield Barwick, that Act, in all material features, was being repealed. Later in the Committee stage, we will be pointing out that very much more limited remedies will be available to individuals and companies by way of damages than have been available to them under the Australian Industries Preservation Act. We shall be taking steps to have those rights restored to them.

Under the relevant American legislation rights have always been available to individuals and companies. Sir Garfield Barwick proposed that they similarly should have rights under the Australian legislation. The only rights that individuals will have under this Bill will be after the Tribunal has found a practice to be against the public interest and has ordered people to cease it and to desist from it. Until then they will have no rights to damages. Damages can be secured only for any injury subsequent to such an order by the Tribunal. Proceedings before the Tribunal may take many months - in fact, years. During that time an individual or a company may fear grave hardship or irremediable injury. There will be nothing that the individual or the company can do about it. He or it may be driven out of business and be left so bereft of assets as to find it impossible to undertake any other business. Nevertheless, unless the Commissioner chooses to ask the Tribunal to make an interim order nothing can be done to suspend the practice which the Tribunal is investigating. The Tribunal cannot suspend the practice of its own motion. The individuals affected cannot ask the Tribunal to suspend it. The Commissioner is a law unto himself in this matter.

As on some earlier occasions I have some trepidation about trying to restore the essentials of the Barwick proposals. Earlier this evening the honorable member for Moreton (Mr. Killen) had the grace to refer to the fact that even the former Attorney-General was not unaware of the vagueness of clause 50. I never expected to. hear such impertinence in this place. The former Attorney-General submitted quite full proposals to us in this chamber three years ago and the large majority of honorable members expected that they would be embodied in the Bill. The former Attorney-General had had three years- 1960, 1961 and 1962 - to formulate these proposals with the concurrence of his Cabinet colleagues. In the campaigns for the House of Representatives election at the end of 1963 and the Senate election at the end of 1964 no suggestion was made that Sir Garfield Barwick's proposals would be diluted in any way. It was not until the Bill was introduced just over six months ago that we found that in essential features those proposals were to be diluted. I have already mentioned at the Committee stage the fact that the Australian Industries Preservation Act is being repealed. There was no suggestion by Sir Garfield Barwick that this would happen. There is no complementary legislation by the States. Sir Garfield Barwick said that this was probably necessary and certainly desirable. Again, such practices as monopolisation and predatory pricing are being dealt with much less firmly than was proposed by Sir Garfield Barwick.


Mr Snedden - The honorable member has said all this three or four times.


Mr WHITLAM - There are many other features of this Bill which depart from the proposals made by Sir Garfield Barwick. The matter with which we are now dealing involves one of them. Why is it that individuals and companies are to have so many fewer rights under the terms of this Bill than they were to have under the Barwick proposals of three years ago and so many fewer rights than they have under the Australian Industries Preservation Act 1906 as amended on four occasions? Why is it that they are to have so many fewer rights than they have under comparable legislation in the United States of America and Canada - two other countries which have federal systems - and Britain and New Zealand? None of Sir Garfield Barwick's Cabinet colleagues spoke at the second reading stage or has so far spoken at the Committee stage. Nobody has explained, and still less has anybody justified, the departure from the Barwick proposals.

The Attorney-General, by way of interjection a few moments ago, said that I have said these things before. Probably I have repeated myself less in the debate ou this Bill at the Committee stage than has anybody else in the chamber. However, even if I have said these things before, the Minister has not answered them even once. He has not tried to answer them. We are entitled to know why the essentials of the scheme deliberately put to us three years ago after three years of investigation by Six Garfield Barwick and of cogitation in tce Cabinet have not been put before us now. We are entitled to know why it is that after two elections when nothing was said about these divergences from the Barwick scheme the full scheme was not put before us.

I suggest that the Committee should adopt this proposal. It will be of great benefit to individuals and companies. Some of the dissident members of the Liberal Party on the other side of the chamber this afternoon were making great play of hardship to little businesses. Here we have a clear case in which little businesses could be given an advantage which they would not otherwise have under the terms of the Bill. We need not fear that any large business will not be able to survive the duration of any proceedings before the Tribunal. We have good reason to fear that many small businesses will not have the resources to survive the duration of such proceedings. If honorable members opposite really have any solicitude for small businesses they will support the proposed amendment. It is not one of the Government's proposals which can be dismissed as something that will usher in a police state. This is in fact a proposal which is in accord with restrictive practices legislation in all other countries and with Sir Garfield Barwick's proposals submitted to us three years ago.







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