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Wednesday, 14 August 1974
Page: 924


Senator WRIGHT (Tasmania) -I do not think there is any need for us to speak impulsively with regard to this matter. On the last amendment I think it was shown that a little thoughtful analysis of a matter is much more conducive to a beneficial result. Regarding the argument that to attribute wilfulness to a corporation is some obstacle to the courts, I suggest that this is not so. On the contrary, regarding corporations there is every probability that one would be in a position to show wilfulness more cogently than in relation to an individual. Most of the activities of a corporation are minuted from day to day; there is not only correspondence but minutes growing, showing the development and therefore the purpose of any activity of a corporation. The next thing I suggest to see whether the Opposition amendment has merit, is to see who is the monopolist. I could, I am sure, attract great support in this audience and outside if I started to inveigh against the evils of monopoly. Then some protagonists of government would say that government monopolies are very blessed. Others would say there are big and little monopolists. The trouble with this clause is that it does not indicate clearly that to be a monopolist within this clause one must have in a degree a comprehensive or substantial strength- because it all depends on what one means by a 'market'. The only definition the Government gives to monopoly' is in clause 46 ( 1 ), namely:

A corporation that is in a position substantially to control a market lor goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position -

(   a ) To eliminate or substantially to damage a competitor in that market or in another market;

(b)   to prevent the entry of a person into that market or into another market; or

(c)   to deter or prevent a person from engaging in competitive behaviour in that market or in another market.

(   2 ) For the purposes of this section, a corporation shall be deemed to be in a position substantially to control a market for goods or services if that corporation and any related corporation or related corporations are together in a position substantially to control that market.

So we have the situation that if a corporation is in a position substantially to control a market, then, as I read the clause, it prohibits that corporation from taking advantage of that power in relation to that market for 3 purposes. Let us say for brevity, to damage a competitor. Suppose that my business is simply to make buttons. Suppose that my business is simply to make trouser buttons. Suppose that my market is to sell buttons, or in the other case, trouser buttons. There is no question at all of area in this Bill. I therefore must be driven to the idea that it applies not merely to a store such as Coles which will be marketing a thousand different items but applies to those which are set up to market one or two specified items. Of course, we know that in regard to those items some people develop, by reason of their skill, a very great degree of prosperity.

I ask those who think that it is being fastidious to consider the textile manufacturer who produces only boys' wear and not women's wear or men's wear. That is the market. Let me go on from there to the case of an enterprising manufacturer in the hardware field- I have nobody in mind; I take this case simply as an example, but I know of other fields in which this has occurredwho has built up a trade in heating equipment and who has, say, 80 per cent of the market for the 3 leading towns on the north-west coast of Tasmania. In that respect I suppose it could be said that that person is substantially in a position to control the market. Let us assume that his business has grown to such an extent since he started in Ulverstone IS years ago with a turnover of $50,000 that his turnover in the 3 towns today is $200,000, that he has no competitor who sells more than $20,000 in equipment and that as he grows he gets more up-to-date equipment with which he can produce more economically and undercut any other contractor who puts in a tender. Here we would have the situation whereby if I were to go along there and set up a similar business the original manufacturer, who would be in a position substantially to control that market in heating equipment, shall not take advantage of that market to deter or prevent me from engaging in competitive behaviour in that market.

Does an illustration of that sort not conclusively prove the necessity of having in this proposed section a word such as 'wilfully' to make the position quite clear? Consider the situation of the manufacturer who had built up his business to that degree, who by reason of his use of up-to-date equipment was able to produce more economically so that he could put in a tender for heating equipment that was at all times 80 per cent of what I in my smaller enterprise, using less efficient methods, could compete with.

We would be the most foolish House of Legislature in Australia if we were to enact legislation in such a form that it was an offence or contrary to the law for that efficient, growing manufacturer to take advantage of the position that he had built up by his efficiency and economy over the years to deter me or prevent me from entering into the market. Obviously what is needed in this proposed section to make it in any degree acceptable to a just mind is the proposition that the manufacturer shall not wilfully take advantage of his situation for the main or dominant purpose of deterring me, a smaller entrepreneur, from entering into the field just by repetitively putting in better tenders than I, an inexperienced entrepreneur, could submit. Surely we would be fostering the very abuses that the legislation seeks to suppress if we were not to so provide. Therefore I warmly support Senator Greenwood's amendment. Some such word as that has to be introduced into this section to make it any degree reasonably acceptable. 1 submit that the whole of what 1 have said illustrates that this proposed section has a variable content. The variable content may be by relation to area or it may be by relation to goods or a particular species of goods; but what is a market depends upon a purely commercial notion. I suggest that the Attorney-General give real consideration to the matters that I have put before him and make the legislation just, or more just, because unless it is made just there will be the inevitable reaction from the courts of a reluctance to enforce an unjust or unreasonable law. Therefore, in the interests of efficiency, I ask the Attorney-General to make the legislation just to the extent of inserting the word 'wilfully' as Senator Greenwood advocates.







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