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Wednesday, 24 October 1973
Page: 1416


Senator GREENWOOD (Victoria) - I move:

That the words 'next day of sitting' be left out and the words first sitting day in 1 974 ' be inserted.

I agree with Senator Murphy that this is a most important piece of legislation. I agree with Senator Murphy that there is no doubt about the necessity for legislation to deal, and to deal effectively, with restrictive trade practices. There is no doubt about the need for effective legislation to deal with the type of unfair practices which he has listed in this Bill under the heading Consumer Protection'. There is no question that restrictive trade practices legislation can contribute to lessening the inflationary pressures, but we are not persuaded at this time that this Bill serves the purposes which Senator Murphy has claimed it will serve. Because this is important legislation we want proper time to be given for consideration of its provisions. It should be appreciated that this legislation is not a 1973 version of trade practices legislation introduced in 1 965. This is a completely new piece of legislation and there would not be a company engaged in trading and finance in this country which supposes that it can proceed with its pre-existing activities without taking advice as to whether one or more of the provisions of this legislation affect it in some way. It is an enormously significant piece of legislation with ramifications and application touching, as I said, every company engaged in business in this country.

If in a country town a grocer or a butcher has formed himself into a company and is in competition with some person who trades as an ordinary trader, that company must look at this measure because there are many things such as the ordinary lowering of its prices which may be an offence under this legislation. These are the things which require scrutiny by all persons who are interested. Far more people, I believe, must be informed about what is involved in this legislation so that they can have an "opportunity of putting forward their views and so that we in the Parliament can have an opportunity of properly debating this measure. It is an important Bill but it is a Bill which the Government is trying to impose upon this community without proper debate and without giving adequate opportunity for consideration of it. It is in so many ways typical of the arrogance of the Government because Senator Murphy conveys the impression that he knows, and the Government knows- and only he and the Government know- what is best for the community in this area.

There is no question whatever that the real problem in dealing with restrictive trade practices, anti-social measures of this character, is to distinguish between those which are consonant with the public interest and those which are against the public interest. The whole impact of trade practices legislation in this country has been that you investigate the ways by which to determine what is and what is not against the public interest. That is not provided in this legislation. There are broadly stated prohibitions that you shall not enter into a contract, you shall not enter into a combination or conspiracy in restraint of trade. Who knows precisely what that means? You are not allowed to engage in price discrimination. Who can tell precisely what that means? There is a host of other provisions which, because they are couched in broad language, may operate to defeat the purposes of this legislation instead of serving those broad objectives in which, I am sure, the Attorney-General and I have a common belief.

I can only stress that in the climate of the community at this time where hostility exists between business and Government- an apprehension on the part of business as to how it will be affected by government action- it is tremendously important that the Government does not take steps which are likely to have such drastic consequences that they further weaken or destroy the confidence which is so important for the ensuring of production and the maintenance of employment in the community. I have the fear that unless the community does have an opportunity properly to consider this Bill it will have devastating effects if it is carried into law and people will have to accept legislation which is completely new to them and alien to all that they have experienced in the field of trade practices legislation.

Senator Murphyhas, I believe, in a sense prejudged all opposition to this measure. He has prejudged as stalling all submissions which organisations are seeking to put forward with regard to the measure. I have in front of me the Hansard reports which show that I asked questions of the Attorney-General as to what he proposed to do to allow debate on this legislation. Of course, he introduced the legislation in the dying hours of 27 September. We then adjourned for a week and came back on 9 October when I asked him whether he had become aware of the growing apprehension among persons affected by the Government's projected trade practices legislation as its provisions became widely known; and I asked for an indication of what he proposed to do. He said that he did not know of any apprehension. He understood that the Bill had been well received. He stated:

The feedback, as it is called, has been distinctly favourable.

I do not know whether he is still of the same mind. But if what I am receiving by way of mail and submissions is any indication there is a distinctly unfavourable reaction to the legislation. Above all there is a plea for time to enable it to be considered. The following week, on 17 October, I again asked him whether he would be prepared to stand this matter over for time to allow it to be examined by those who were affected. Senator Murphy's immediate response was:

We see the commencement of the great stall from the Deputy Leader of the Opposition.

Then he proceeded to state:

It is just nonsense to suggest that in some way there should be some great stalling by some repetition of what occurred during the 1960s . . .

He also stated:

Those in industry and commerce who would be affected have great and powerful organisations with lawyers and others who are sufficiently capable and well versed in the principles of trade practices to understand well the implications of the Bill.

No doubt there are large organisations but the position is not as easy as Senator Murphy suggests. He took 10 months to prepare this legislation. Incidentally, he relied upon American precedents and practice with which lawyers in this country are certainly not well versed. He brought out experts from the United States to assist him. The whole pattern of trade practices legislation in this country has been based more upon the English pattern than upon the United States pattern. Of course lawyers in Australia have a passing familiarity with the English provisions. Certainly they have knowledge of how the Australian provisions have worked. Because of the difficulties experienced by Senator Murphy in getting the legislation out over a period of 10 months, he is not doing his own knowledge and appreciation of the situation any credit by simply saying that people can deal with it in a matter of 2 or 3 weeks. They cannot because the ramifications of it are so extensive. So the attitude of Senator Murphy persisted when I asked him a further question on a subsequent day. In the course of his reply he said several things which suggested that persons would not be adversely affected. For example he said that people ought to know what he had said on numerous occasions over the years as to the legislation and that it was simply a fulfilment of the policy of the Australian Labor Party.

I have looked at the various documents of the Australian Labor Party and they are singularly unrewarding in terms of the information which they give. One goes to the platform of the Australian Labor Party and all one finds is a promise to legislate against monopolies and to strengthen existing trade practices legislation. This legislation is not a strengthening of the existing legislation. lt is an abandonment of the existing legislation and the introduction of something which is completely new. If something is completely new and has such fundamental changes, then the Parliament ought to be given sufficient time to consider its provisions. That is a point of view upon which Senator Murphy is himself on the record on numerous occasions when he was in Opposition. Let us look at what the Prime Minister (Mr Whitlam) said in the course of his policy speech. He was no more informative than is the platform of the Australian Labor Party. All the Prime Minister said on this issue was:

We will strengthen the laws against restrictive trade practices.

There is no indication in that statement that there would be something new and fundamentally different as has appeared. When one goes to the Speech made by the Governor-General in this place at the commencement of this session -


Senator Murphy - I think the honourable senator is misleading the Senate on this. There was more said about it.


Senator GREENWOOD - I am reading from the actual documents. I read from the GovernorGeneral's Speech. When he announced the Government's legislative program at the beginning of this year he referred to prices justification machinery and finished by stating:

.   . and strengthen the laws against restrictive trade practices.

That, may I say, is the basic information which the community at large has- that is, those affected because they are producers and those affected because they just fall within the range of the provisions of the legislation- as to what the Government proposes to do. It was suggested also by Senator Murphy in the course of his responses that a period of some 4 months was provided in the legislation during which people could apply for authorisations. If they applied for authorisations that would give them time to adjust to the new provisions. The authorisation provisions of the Bill are simply procedures whereby one may go to the Trade Practices Tribunal and obtain what is virtually an exemption for an authorisation to engage in the type of practice which otherwise would be proscribed and the engaging in that practice would be lawful. It is an exemption, but it is a tremendously limited exemption. For example it is an exemption which does not apply to monopolisation, to resale price maintenance, to price discrimination, to this totally new area of consumer protection or to any contracts or combinations having- and these words are so tremendously significant- the purpose or the effect of fixing, controlling or maintaining prices. Therefore the suggestion that in some way this ability to apply for authorisations will obviate the harshness of some of the provisions and ease the way for other persons, lacks the credibility which is offered for it. It does not have the general application which is said to exist. There are other parts of the legislation relating to this authorisation application upon which people are seeking some clarification. The Attorney-General, in his second reading speech, said: 'Well, people may apply for authorisations and the Commission '-I think I said before that it was the Tribunal which looks at these matters. I think it is the Commission.


Senator Murphy - There is an appeal to the Tribunal.


Senator GREENWOOD - I thank the AttorneyGeneral. He said that people may apply for authorisations and the Commission may grant an interim authorisation; but the AttorneyGeneral says that it will not be granted as of course. One has to show something. When one looks at the legislation it is difficult to see the grounds upon which one will obtain an interim authorisation. It is suggested, possibly that if you apply early you will get it but if you apply late you will not. All that the legislation says is that the Commission may do it where it is appropriate. When I visualise the thousands of agreements- Senator Murphy himself used this expression- which could well come within the purview of this legislation I wonder how justice can be done to persons affected in the time which is allowed.


Senator Murphy - What about the persons who are being hurt by them?


Senator GREENWOOD - I agree that there are persons being hurt by them but the difficulty is to specify and identify the hurt. At the present time we have legislation. While it is not the sort of legislation which we in Opposition believe we would like to have- and last year we indicated our attitudes on that- still it is legislation which is capable of operating and it is not right to convey the impression that there is no legislation which is currently operating.


Senator Murphy - The honourable senator conceded that there were thousands of agreements which were probably in breach of the Act and yet they could not be got to under the provisions that were in his laws.


Senator GREENWOOD - I think that Senator Murphy paraphrases and paraphrases misleadingly what was said last year.


Senator TURNBULL (TASMANIA) - I raise a point of order. I have been waiting for Senator Webster to get up and raise a point of order but he has not so I have to do it. This is certainly debating the Bill. In the last interchange between the two honourable senators not one word was spoken about the postponement of the Bill.







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