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Tuesday, 7 December 1965

Mr WHITLAM (Werriwa) (12:21 PM) . - It is a very hazardous occupation to support anything in this Bill that is raised by the honorable member for Moreton (Mr. Killen). He has asked me to do so on several occasions and he has roundly abused me when I have. On this occasion he has not asked me to support him, but I want to pursue this matter a little further. I shall quote from a couple of documents. As in all these cases, I am prepared to quote chapter and verse. The honorable member for Moreton referred to decisions of the Law Council of Australia. I have the document here and it does not bear out his representation of it. Nevertheless, on this occasion the authors of the legislation did propose that costs should be within the discretion of the Tribunal. This is one matter in which the honorable member for Moreton is at one with the former Attorney-General. As he would say, even the former AttorneyGeneral agrees with it. Sir Garfield Barwicks proposals put to the Parliament on 6th December 1962 included the well remembered document "Elements of the Scheme ". Clause 18 was in these terms -

The Tribunal is to be able to award costs against any party, including the Registrar or the AttorneyGeneral.

Again in his paper to the 13th Legal Convention of the Law Council of Australia, held at Hobart in January 1963, Sir Garfield Barwick said - . . I draw attention to the fact that the proposal that the Tribunal should be empowered to award costs represents a departure from both the United Kingdom and the New Zealand schemes. Apart from providing for more complete justice as between the parties to proceedings before the Tribunal, this proposal should help to deter persons from engaging in practices which have little or no prospect of being found to be justifiable. It should also perform a useful function in helping to deter the parties to proceedings before the Tribunal from prolonging these proceedings unnecessarily.

It was typical of the whole tenor of the amendments moved by the honorable member for Moreton that he should have been motivated by concern for businesses hailed before the Tribunal. He was worried about the expenses to which such companies would be put by being hailed before the Tribunal. He was worried about the expense to which they would be put if the proceedings before the Tribunal were protracted. Sir Garfield Barwick made it plain that he regarded the provision of cost's as being a deterrent agains: those companies that were carrying out restrictive practices. The fact that such companies could be made to pay costs would deter them from carrying out the practice. It would also deter them from prolonging the proceedings unnecessarily.

I dare say that the honorable member for Moreton will lose some of his enthusiasm for the proposition when he finds that the author of the scheme had in mind a very different objective. I cannot say I would have moved this amendment myself, because I am not satisfied that the awarding of costs is a good feature of administrative proceedings or that it is one which we should promote. Nevertheless, the honorable member for Moreton has raised in his amendment - I imagine he did so inadvertently because he did not refer to this fact - one of the features that the author of the scheme put to the House three years and two days ago. I believe that in this matter the present AttorneyGeneral (Mr. Snedden) should give more considered reasons why the Government once again has departed from the Barwick proposals.

Amendment negatived.

Clause agreed to.

Clauses 79 to 84 - by leave - taken together, and agreed to.

Clause 85. (4.) It is a defence to a prosecution under sub-section (2.) of this section if the defendant satisfies the court that-

(a)   the agreement concerned was not made for the purposes' of a particular invitation to tender; and

(b)   at the time of the alleged offence -

(i)   full and accurate particulars of the agreement, and of any variation of the agreement, were contained in the Register; and

(ii)   there was not in force an order of the Tribunal that was contravened by the conduct constituting the alleged offence. (7.) The penalty for an offence against this section is -

(a)   in the case of an offence committed by a corporation - a fine not exceeding Five thousand pounds; or

(b)   in any other case - a fine not exceeding Two thousand pounds or imprisonment for a term not exceeding six months.

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