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Tuesday, 7 December 1965


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

After sub-clause (3.) insert the following subclauses: - "(3a.) Where-

(a)   the Tribunal gives a direction under subsection (2.) of this section by reason of the provisions of paragraph (a) of that sub-section; and

(b)   as a result of the direction, the Commissioner applies for leave to file a certificate under section 59 of this Act, the Commissioner shall state in his application for leave a proposed minimum period of operation of the certificate, not being less than five years, and, if leave to file a certificate is granted, the certificate filed shall specify that period as the minimum period of operation of the certificate, and an application for leave to revoke the certificate shall not be made before the period so specified has elapsed since the filing of the certificate. "(3b.) Where-

(a)   the Tribunal gives a direction under subsection (2.) of this section by reason of the provisions of paragraph (a) of that sub-section;

(b)   as a result of the direction, the Commissioner institutes proceedings in the Tribunal in respect of the restrictions or practice to which the direction relates; and

(c)   the Tribunal, in those proceedings, determines that a restriction or practice is not contrary to the public interest, the determination shall specify a period, not being less than five years, as the minimum period of operation of the determination, and an application by the Commissioner under section 58 of this Act for leave to apply for recission of the determination shall not be made before the period so specified has elapsed since the making of the determination.".

These new sub-clauses deal with proceedings before the Tribunal in relation to negative clearances. Parties can apply to the Tribunal for what one might properly describe as an accelerated hearing of a matter. Sub-clause (3.) states -

Where a direction is given under the last preceding sub-section, the Commissioner shall, as expeditiously as practicable, make any necessary inquiries and-- do either one of two things. He may either file a certificate under clause 59 - that is, a certificate in which he says it is not contrary to the public interest - or, alternatively, institute proceedings in the Tribunal under clause 47. The amendment inserts new sub-clauses (3a.) and (3b.). Sub-clause (3a.) states -

Where-

(a)   the Tribunal gives a direction under subsection (2.) of this section--

That is for an accelerated hearing where there is a new venture or substantial addition to an existing venture - by reason of the provisions of paragraph (a) of that sub-section; and -

If honorable members want to follow me they will need to look at my last amendment to this clause -

(b)   as a result of the direction, the Commissioner applies for leave to file a certificate under section 59 of this Act,--

That is, that he is of the opinion that it is not contrary to the public interest - the Commissioner shall state in his application for leave a proposed minimum period of operation of the certificate, not being less than five years, and, if leave to file a certificate is granted, the certificate filed shall specify that period as the minimum period of operation of the certificate, and an application for leave to revoke the certificate shall not be made before the period so specified has elapsed since the filing of the certificate.

The reason for this provision is that it was strongly represented over a wide range of industry that a company or a person - using " person " in the broad sense - could quite easily apply for a negative clearance and succeed. A negative clearance is capable of being reviewed, if there is a change of circumstances. What was put in representations was: " Yes, but the change of circumstances might happen very quickly. It could not be foreseen, therefore we might have a negative clearance only for six months or a year." To have true advantage from the negative clearance it is desirable to have a minimum period, so the minimum period is to be five years, although the Commissioner in his application could suggest a longer period, or the Tribunal itself could make it a longer period. I should not think that the Committee would have any difficulty in accepting this sub-clause. Sub-clause (3b.) states -

Where-

(a)   the Tribunal gives a direction under subsection (2.) of this section--

That is, there is a new venture - by reason of the provisions of paragraph (a) of that sub-section;

(b)   as a result of the direction, the Commissioner institutes proceedings--

That is under clause 47 - in the Tribunal in respect of the restrictions or practice to which the direction relates; and

(c)   the Tribunal, in those proceedings, determines that a restriction or practice is not contrary to the public interest,

Then the determination made by the Tribunal shall specify a period not being less than five years. So sub-clause (3a.) takes account of the situation where the Commissioner of his volition goes to the Tribunal and says that it is not contrary to the public interest and sub-clause (3b.) takes cognisance of the situation where the Commissioner has not been prepared to say it is not contrary to the public interest but he goes to the Tribunal which says it is not contrary to the public interest, and a period of five years is specified as the minimum period of operation of the determination. I should think the Committee would have no difficulty in accepting this amendment.







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