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Tuesday, 7 December 1965

Mr CLEAVER (Swan) (12:25 PM) .It is not my intention to keep the Committee for very long, but from this section of the chamber there has been a strident voice from my colleague. By way of a change, I thought I would seek a little information from the Attorney-General (Mr. (Snedden) to make clearer my understanding of clause 85. Naturally enough, the Committee does not need a reminder that collusive tendering should be outlawed. Earlier this year the Parliamentary Public Accounts

Committee in public hearing had its attention drawn to a number of cases and these we have registered as being far from the public interest. In certain areas of our own Commonwealth Government purchasing, collusive tendering of a vicious kind has been encountered. The provision in the Bill appeals to me as being quite firm in its contention, but there does seem to me to be some loopholes. My questions, therefore, will relate to the points I have noted.

It has been suggested by some people who have studied the Bill in far more detail than I have that a standing agreement to engage in collusive tendering which is subsequently found to be in the public interest may be approved under sub-clause (4.). I would ask the Minister whether he can indicate to the Committee the full impact of registration of such an agreement. I see that the wording is that "the agreement concerned was not made for the purposes of a particular invitation to tender.". I interpret this to be a standing agreement, not just for the specific tender in question. A further paragraph of this sub-clause states -

(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.

I ask the Minister to indicate to the Committee the full impact of registration and the full meaning of exemption if it be a standing agreement. Under sub-clause (5.), the exemption to me seems to be quite specific. If the services or the goods are being exported from Australia, there is an exemption as far as collusive tendering is concerned. As the Minister will recall, I am particularly interested to know whether this covers the timber industry when timber is being sold outside Australia. I assume the timber people are completely in the clear and exempt if there is a combination of tendering or tendering for overseas delivery of timber at the same figure. I am a little mystified about the exemption being given under sub-clause (5.). Why not use the exemption clause 87? Why is sub-clause (5.) required at all? Where do we stand regarding the activities of exporters under acts of Parliament, such as the Australian Apple and Pear Board legislation? Are these completely exempt? Am I correct in believing that such an exemption is provided under clause 87 (2.)?

It is my understanding that the AttorneyGeneral in correspondence answering the queries of certain people in industry has referred to sub-clause (6.), which provides that clause 85 does not apply to making or joining in the making of a joint tender at the request of or with the prior consent of the person inviting tenders. To satisfy my curiosity, I ask the Minister whether he can provide me with an illustration of circumstances that are adequately covered by sub-clause (6.). The intention of competitive tendering would surely rule out the possibility of anyone desiring competitive tendering readily approving in writing the submission of a joint or combined tender. My question is: Does not the calling of tenders connote a desire for competition? How can the Attorney-General justify a suggestion that the person inviting tenders might approve of joint tendering?

Finally, some of us have noted that the Chambers of Commerce have raised the problem of joint tenders, their attitude being that the narrowing of the prohibition of collusive tenders to those which have the purpose or effect of preventing or restricting competition might be highly desirable. [Quorum formed.] The point I make is that some exemption might be possible for joint tenders in the context that they do not prevent or restrict competition in certain circumstances. I am referring particularly to the submissions made by Chambers of Commerce. I ask the Attorney-General whether careful thought has been given to the possibility of defining, in an adequate manner, an exemption for such tenders. I am reasonably well impressed with the fact that in certain circumstances one corporation may find that it does not desire to tender or bid except jointly with another corporation which might not be related to it. The reason for this might be that one corporation alone is not sufficiently financial to tender. The same thing can apply to two or more builders who individually are not sufficiently financial to tender for construction work but who could combine in a joint venture, and thus provide a tender which otherwise might not be forthcoming. I think that there are some genuine representatives of industry who would like to have some clarification of this matter and that is why I ask the Attorney-General for an assurance that it has been most carefully looked at.

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