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Thursday, 13 April 1972
Page: 1100

Senator MURPHY (New South WalesLeader of the Opposition) - The Opposition supports this proposal for an inquiry in broad terms. Senator Turnbull has said that this is only a simple takeover and is no different from any other takeover of a company. We think differently. We think that this is a takeover which involves an important part of the Australian economy, lt involves a company which is in a special position under the laws of this country, lt is affected by the Airlines Agreements Act 1952, as amended. Its finances are affected by legislation of this Parliament which, in effect, guarantees loans for purchases of aircraft. In many ways, the operations of this company are inextricably mixed with national concerns. Its operations are a public affair, not merely a private affair. That is what distinguishes this takeover from some other takeover. It cannot be regarded as being one which has been selected for no particular reason out of the generality of takeovers which are occurring day by day.

I have circulated a proposed amendment to the motion moved by Senator Gair. Perhaps it might be convenient if I dealt with that immediately before developing the general matters so that honourable senators concerned may have an opportunity to consider its contents. It would not depart a great deal from what is contained in Senator Gair's proposal because, if carried, it would follow the main matter, that is, that there should be referred to the Standing Committee on Primary and Secondary Industry and Trade for inquiry and report:

(1)   The proposed takeover of Ansett Transport Industries Ltd by Thomas Nationwide Transport Ltd and, in particular-

That is the main matter and that would continue. The foreshadowed amendment deals with some of the paragraphs under that. The departure is not so very great but it seems to us to be important that there be some variation. Paragraph (a) in Senator Gair's motion suggests that one of the matters to be inquired into is:

(a)   the ascertainment of the degree of nonAustralian ownership, whether direct or indirect, of the issued, share capital of Thomas Nationwide Transport and the financial participation of nonAustralian financial interests in the attempted takeover operation.

We think that if the question of the degree of foreign ownership or control that should be permitted in the company is to be raised, which is so much a matter of public concern, the inquiry should not be limited to the share capital of Thomas Nationwide Transport Ltd; it should extend to Ansett Transport Industries Ltd. It is evident that insofar as Thomas Nationwide Transport Ltd has foreign ownership, already to some extent Ansett Transport Industries Ltd has foreign ownership because it has that proportion of the foreign ownership, which is included in Thomas Nationwide Transport Ltd, included proportionately in its ownership. There may be other foreign ownership; there may not be. But if foreign ownership is to be considered, we think that it ought to be considered totally. As Senator Gair pointed out, other interests may be involved. They may be involved in the operations which are going on now not only In relation to Ansett Transport Industries; there may be dealings in the shares of Thomas Nationwide Transport which ought to be looked at by the Committee. We think it is reasonable that this should be extended beyond what would appear to be the intention in the particular paragraph.

The next paragraph of Senator Gair's motion refers to:

(b)   whether the exercise, if successful, might be prejudicial to the Australian aviation industry and in the event what if anything, might be done to minimise the prejudicial effects.

We think that if one is not to prejudge the question the paragraph ought to refer to the advantages or disadvantages and what might be done to maximise advantages or to minimise disadvantages. That is the purpose of paragraph (b). Otherwise, it follows substantially what appears in Senator Gair's motion. Paragraph (c) contained in our amendment is virtually the same as paragraph (c) in Senator Gair's motion except that it adds the words, 'If so, to what extent'; that is, if there is a degree of. passage of control to non-Australian interests what is the extent of that. The next matter which appears in Senator Gair's motion is (d), which states: to advise the Minister, in the public interest, how he should exercise his discretion to grant or refuse approval to the transaction involving as it does shares in Ansett Transport Industries Limited. . . .

The discretion referred to is that which is vested in the Minister by section 92 of the Broadcasting and Television Act. It seems to me that a committee of the Senate, and indeed the Senate itself, should certainly be entitled to inquire into the effect on the licences under the Broadcasting and Television Act, but I do not think it is right at any time for the Senate to require a committee of the Senate to put itself, or indeed for the Senate to put itself in the position of advising a Minister what he should do. We are not an advisory body to any Minister. As a matter of principle I do not think we should enter into a sphere which is properly a sphere of executive government.

Senator Gair - Do we not do that when we amend a Bill?

Senator MURPHY - No, we do not do (hat when we amend a Bill; as I conceive it, we exercise part of our legislative func- lion. I think effect can be given to what Senator Gair is seeking if we express that part of his motion in a slightly different form which would not offend against the principle that we stick to our business and the Executive sticks to its business, thus maintaining a certain amount of separation between our relative functions. It occurred to me that everything that the proposer of the motion is properly seeking could be achieved if that part of the motion were phrased somewhat differently. In my proposed amendment paragraph 3 states:

The Committee is also requested to make such observations as to the proper application of the provisions of the Broadcasting and Television Act 1942-1971 in relation to the proposed takeover (involving as it does a company holding licences under that Act) as the Committee may think appropriate.

There would be no difficulty about that. The Committee would be invited and expected to express its views on these matters without turning itself into an advisory body to the Minister. Its function is to report to the Senate - I turn to the body of my proposal - on the matter of the proposed takeover. It may well be that this should be specified with some particularity because of the suggestions of enormous transactions taking place, not merely in regard to Ansett Transport Industries but also in regard to Thomas Nationwide Transport. Perhaps this is a matter that could be looked at in relation to the takeover.

Senator Rae - Would the honourable senator spell that out a little further?

Senator MURPHY - The Committee is asked to express in particular its views on how this proposed takeover is being conducted. It must be a matter of great concern to the Senate and to the people of Australia to know how the ownership and control of a company, which is so important to the public and so wrapped up in the legislation of this country, is changing and how that change in ownership is taking place. I should think, without prejudging what the Committee might do, that it would be an important matter for the Committee to consider.

Senator Rae - Do you mean the mechanics?

Senator MURPHY - No. Suppose vast changes were going on right now in the ownership of Thomas Nationwide Transport; suppose that the takeover was proceeding on a basis that notwithstanding what might happen now, there might in future be several changes which might affect the consideration of the Senate, then the Committee could well look at that.

Senator Rae - Would the honourable senator consider whether 'manner' is the appropriate word to achieve the objective that he is mentioning?

Senator MURPHY - I think it is. The next matter in the amendment is (e), 'and matters incidental thereto.' Paragraph 2 of my proposal is a direct invitation to the Committee to recommend. If I may mention why that wording should be included, it is because the purpose of Senator Gair's proposal, as I understand it and with which we agree, is to suggest that something be done about this by the Commonwealth. The purpose of a Senate inquiry normally is to recommend whether there should be legislative measures or administrative measures concerning an attempted takeover or its implementation. That is why paragraph 2 is inserted to state in direct terms:

The Committee is requested to recommend whether the Commonwealth should intervene by legislative or administrative measures to prevent the attempted takeover or its implementation.

Senator Gair - Is that not a natural corollary of the deliberations of a committee - to make recommendations?

Senator MURPHY - I think the question should be asked to ensure that the Committee has the constitutional authority, or to strengthen the constitutional basis of the Committee, and it would be advisable for the Committee to be asked to make such recommendations. Proposed amendments 4, 5 and 6 are contained in Senator Gair's motion, and then paragraph 7 provides:

The foregoing provisions of this resolution shall have effect notwithstanding anything to the contrary contained in the Standing 'Orders or in any previous resolution of the Senate.

I remind the Senate that when setting up the Standing Committee to which it is proposed that this matter be referred, one of the provisions of the charter of the Committee was paragraph 11 in the resolution of 1 1th June 1970 which stated:

The Standing Committee shall take care not to inquire into any matters which are being examined by a Select Committee especially appointed to inquire into such matters and any question arising in connection therewith may be referred to the Senate for determination.

The Senate has already, on a proposal by Senator Byrne, established a committee on foreign ownership and control. That is a special select committee such as is envisaged in paragraph 11 of the resolution of 11th June, and it is directed to inquire into the matters of foreign ownership and control in industry and commerce. It would seem on the face of it that this proposal would, to some extent, cut across that. I should think it would be proper and advisable to have a paragraph in the terms which I have suggested, namely:

The foregoing provisions of this resolution shall have effect notwithstanding anything to the contrary contained in the Standing Orders or in any previous resolution of the Senate.

Those proposals, although containing some modifications of the motion, are: in line with the broad terms of what has been put by Senator Gair. I think they are helpful. I think they take away any suggestion that there is some prejudgment of the issue by the Senate in this reference to the Committee. I suggest that honourable senators might give some regard to a modification of the motion. I do not wish to put any amendment at this stage. I invite Senator Gair to consider my proposals during the discussion of the matter. If he were to accept them perhaps I would invite the Senate to give me leave to move an amendment, if that became necessary at a later stage.

On the substance of the matter, the proposal is an extremely important one. I believe that the intervention of the Senate in Ais matter is warranted. A proposal for a judicial inquiry has not been acceptable to the. Government. The issues which are raised are of more importance than merely their importance to the shareholders of Ansett Transport Industries or of .the other company. Some of these issues are obvious to everyone. The operations of the "companies involved are of such magnitude that they affect the lives of every ' Australian. One of the matters which the Committee no doubt will consider if the Senate agrees to this reference is the. effect of the proposed takeover on the operation of the Airlines Agreements Act. I draw attention to one of the provisions of one of the schedules to that agreement. I refer to the Second Schedule which, in part, provides:

AND WHEREAS one of the objects of the parties to this agreement is to secure and maintain a position in which there are two, and not more than two, operators of trunk route airline services, one being the Commission, each capable of effective competition with the other and the parties intend that this agreement shall be construed having regard to that object:

What will be the effect of such a takeover, if successful, on Trans-Australia Airlines? It may well be that, if all that is said on behalf of the Thomas Nationwide Transport interests is correct, such a takeover will have a tremendously adverse effect upon Trans-Australia Airlines in that TAA will be subjected to competition by an organisation which has the advantages of integrated road and air transport although TAA is deprived of the advantages which might flow from such an integration. We are well aware of the limitations and difficulties under which TAA is operating because of the provisions of the Airlines Agreements Act and because of governmental decisions.

There are other parts of the same agreement to which the. Committee no doubt will need to turn its mind. Clause 16 of the Second Schedule contains matters which are important for the consideration of the Committee. It provides:

For so long as a loan or any interest on a loan the repayment of which has been guaranteed by the Commonwealth under clause 3 of the Civil Aviation Agreement 19S2 or clause 4 of this agreement remains unpaid, officers employed in the Commonwealth Service shall have full access at all reasonable times to the financial accounts of the Company when authorised in writing by the Minister for that purpose and the Company will do everything within its power to ensure that the officers so authorised have similar access to the financial accounts of any company or firm in which the Company, whether directly or indirectly, now has or hereafter may have a controlling interest.

I hope that out of any consideration by this Committee of the important problems that have been adverted to will come some additional benefits. Frankly, I hope that what is revealed by such an inquiry will flow to the benefit of TAA, considered as a public corporation, and to the interests of the Australian people.

That affairs have been conducted in the way that they have been is quite unsatisfactory. It is quite unsatisfactory that takeovers of corporations which have a tremendous effect on the trade and commerce of this community should be allowed to go on in the way that is happening now. We know that Sir Garfield Barwick proposed that there should be a regular way of supervising and investigating proposed takeovers of this magnitude. We know that the Government so far has avoided, neglected and refused to introduce legislation to give effect to that proposal. The pressure of events has meant that the Government will be forced, even in its few remaining weeks, to do something about the public interest which is involved in such takeovers.

I will say no more than that I think that the Committee will have an extremely important task to perform. It is not for us to go in depth into the matters which might be revealed by the investigations of the Committee. But I do suggest that the amendments that I have proposed might improve the motion. I would like to ascertain whether it would be. convenient for me to take the course which I have suggested, that is, not to move the amendments immediately in case they might be acceptable to the Australian Democratic Labor Party.

Senator Little - Senator Gair is busy at the moment. The answer is no.

Senator MURPHY - Does that mean that the DLP would prefer me to move them? I will formally move, the amendments on the understanding that, if they are acceptable to Senator Gair, I will be prepared-

Senator Gair - There are a few alterations that we are prepared to accept and to incorporate in our motion. When Senator Murphy has completed his remarks, SenatorByrne will indicate in what respects we are prepared to accept Senator Murphy's proposals.

Senator MURPHY - If. I formally move my amendment, we might be able to sort the matter out. .Therefore, I will formally move my amendment and I will hear what is said by the representative of the DLP-

Senator Gair - If we indicate what we are prepared to incorporate in our motion, we may eliminate the necessity for Senator Murphy to move his amendment.

Senator MURPHY - Very well. I will accede to that course being followed. I will not move my amendment now. If it becomes necessary, I will ask for leave at a later stage to move any amendment that I wish to propose.

The PRESIDENT - I want to be clear on this. Senator Murphy, are you not moving your amendment at the moment?

Senator MURPHY - No.

The PRESIDENT - There is a bit of confusion reigning not only in the presidential chair but also around the Senate.

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