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Tuesday, 7 December 1965


Mr SNEDDEN (Bruce) (AttorneyGeneral) . - by leave - I move -

1.   Omit sub-clauses (2.) and (3.) and insert the following sub-clauses: - " (2.) Where an agreement that was an examinable agreement has been determined, by effluxion of time or otherwise, or has been so varied that a restriction under the agreement has ceased to be in force, the Commissioner may, with the leave of the Tribunal constituted by a presidential member, institute proceedings under section 47 of this Act in respect of a restriction that was accepted under the determined agreement, or in respect of the restriction that has ceased to be in force, as the case may be. " (2a.) Leave shall not be granted under the last preceding sub-section for the institution of proceedings in respect of a restriction unless the Tribunal is satisfied that there are reasonable grounds for believing that the parties, or former parties, to the agreement or any of them have entered into, or are likely to enter into, another examinable agreement, or a further variation of the agreement, under which a restriction to the like effect is or may be accepted. " (3.) If, while proceedings under section 47 of this Act in respect of an agreement are pending, it is shown to the Tribunal that the agreement has been determined, by effluxion of time or otherwise, since the institution of the proceedings, the Tribunal may, if the Commissioner requests it to do so, continue the proceedings in respect of the determined agreement, but otherwise shall dismiss the proceedings.".

2.   In sub-clause (4.), omit " shall " first occurring, insert "may".

Honorable members will have clause 55 before them and will see that there is provision in sub-clause (2.) for the Commissioner to require the continuation of an examination by the Tribunal in circumstances where the agreement has ceased. Representations were put that if there are reasons for the Commissioner to want to go on, why cannot the legislation say what those reasons are. That is what the amendment proposes to do. The operative part is in new sub-clause (2a.). Under sub-clause (3.) the Tribunal isrequired by the mandatory word "shall", if the Commissioner asks the Tribunal to continue proceedings. That has been changed to the permissive word " may ". Then proposed sub-clause (2a.) states -

Leave shall not be granted under the last preceding sub-section for the institution of proceedings in respect of a restriction unless the Tribunal is satisfied that there are reasonable grounds for believing that the parties, or former parties, to the agreement or any of them have entered into, or are likely to enter into, another examinable agreement, or a further variation of the agreement, under which a restriction to the like effect is or may be accepted.

In other words, the situation under which the Commissioner would want to go on is when the parties had ceased technically for the purpose of avoiding the determination. If that is the reason the Commissioner is now required to establish it before the Tribunal and the Tribunal is given power to grant leave. This is done by use of the permissive word " may " in respect of the Tribunal instead of the mandatory word "shall". I feel confident that the Committee will have no difficulty in accepting these amendments.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 56.

56.   - (1.) The Commissioner shall not institute proceedings under section 47 of this Act in respect of a practice that has ceased to be engaged in before the commencement of the proceedings unless he thinks it desirable to do so by reason of special circumstances. (2.) If, while proceedings under section 47 of this Act in respect of a practice are pending, it is shown to the Tribunal that the practice has ceased to be engaged in since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings in respect of the former practice, but otherwise shall dismiss the proceedings. (3.) If, while proceedings under section 47 of this Act in respect of a practice are pending, it is shown to the Tribunal that the practice has been varied since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings -

(a)   in respect of the practice as it existed before the variation; or

(b)   in respect of the practice as varied, or both, but otherwise shall dismiss the proceedings.







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