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Wednesday, 14 August 1974
Page: 928


Senator WRIGHT (Tasmania) - If the Attorney-General (Senator Murphy) is taking into consideration some amendment alternative to that which has been suggested, I suggest that he considers adding after sub-clauses ( 1 ) ( a), ( 1 ) (b) and ( 1) (c) some words to make 'intent' or purpose' expressly a part of this provision. I rose at this stage to answer 2 elementary matters that fell from Senator Everett. Surely it must have been through inadvertence that he referred to proof beyond reasonable doubt for an offence under clause 46.


Senator Everett -I was referring to subsequent provisions which embrace contraventions of Part IV in which clause 46 falls.


Senator WRIGHT -I would have thought that clause 78 (a) answered that argument completely. The honourable senator referred to the acts of agents of a company. I would have thought that clause 84 (2) answered that argument completely because that clause states quite clearly:

(   2 ) Any conduct engaged in on behalf of a body corporate by a director, agent or servant of the body corporate or by any other person at the direction or with the consent . . . of a director, agent or servant of the body corporate shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

That is on the threshhold of what I wish to submit in answer to the argument. I later wish to direct some argument for the benefit of Senator Murphy.

Sitting suspended from 6 till 8 p.m.


Senator WRIGHT - Before the suspension of the sitting I was addressing a few observations in reply to an argument advanced by Senator Everett and suggesting, firstly, that there was no doubt at all that this clause did not create a criminal offence and, secondly, that there was no doubt at all that a corporation could be liable for any activity or criminal offence that involved a specific intention, purpose, malice or any other state of mind, and that that depended upon the activities of those who acted for the corporation. I drew attention to clause 84 of the Bill subclause ( 1 ) of which is related to consumer protection in Part V. Sub-clause ( 1 ) reads:

Where, in a proceeding under this Pan in respect of any conduct engaged in by a body corporate, being conduct in relation to which a provision of Pan V applies, it is necessary to establish the intention of the body corporate, it is sufficient to show that a servant or agent of the body corporate by whom the conduct was engaged in had that intention.

Sub-clause (2) states:

Any conduct engaged in on behalf of a body corporate by a director, agent or servant of the body corporate or by any other person at the direction or with the consent or agreement (whether express or implied) of the director, agent or servant of the body corporate shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

Clause 84, as it relates to Part V in sub-clause ( 1 ) , and in its general application in sub-clause (2) , states what would otherwise be the law, as I read it, but indicates that it is quite trite experience to attribute to a body corporate any intention, purpose or state of mind that may be prescribed as relevant. Addressing myself to the contribution which Senator Murphy made just prior to the suspension of the sitting for dinner, I remind honourable senators that sub-clause ( 1 ) of clause 46 that we are discussing simply says:

A corporation that is in a position substantially to control a market for 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.

I need not read the other 2 paragraphs of that sub-clause. In the debate it was shown that some members of the Committee had not read those words 'to eliminate or substantially to damage a competitor in that market or in another market' as involving a definite assertion of purpose in that respect. Senator Murphy replied to an illustration that I gave. I referred to a man who in the natural course of business has built up a market which gives him a natural predominance in a market so that he has an advantage over a new competitor or an old competitor. Senator Murphy said that if that advantage were exercised simply in the course of his business, even though it had the effect of damaging the competitor, that was not a case that was involved here.

Senator Everetttold us that on his reading of the clause the provision that a corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power to eliminate or substantially damage a competitor was to be taken to mean that it shall not take advantage of the power for the purpose of eliminating a competitor. The 2 views of Senator Murphy and Senator Everett combine to indicate that they both intend this clause to be read only to prohibit the case where a person is in a position to control the market and he takes advantage of that position for the purpose of eliminating or substantially damaging a competitor. If the word 'wilfully'- which has been suggested by Senator Greenwood's amendment to see that that is the essential basis of what is being prohibited under the clause- is not acceptable, the arguments of both Senator Murphy and Senator Everett show quite clearly that some words are needed to be incorporated in the new paragraphs to show that it is only when the direct, specific or dominant purpose, intention or conscious wilfulness of a person is the use of power to damage a competitor that that is the offence. Surely the Committee can be offered language, if 'wilfully' is not accepted, to make it clear that it is only in the case where a person in the market who is in the position substantially to control the market uses his position for the purpose of eliminating or substantially damaging a competitor. Surely we can be offered words that will clearly express the matter and eliminate the need for additional argument.







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