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Wednesday, 14 August 1974
Page: 931


Senator GREENWOOD (Victoria) - I move:

After sub-clause (2), insert the following new sub-clause: (2a) For the purposes of this section, a reference to a corporation being in a position substantially to control a market for goods or services includes a reference to a corporation which, by reason of its share of the market, or of its share of the market combined with availability of technical knowledge, raw materials or capital, has the power to determine the prices, or control the production or distribution, of a substantial part of the goods or services in that market. '.

The Opposition has drawn attention to the problem which the clause creates because the concept of monopolisation is not clearly defined. What is a monopoly? When does monopolisation occur? The clause is uncertain in its ambit. The language is not as clear as I am sure people who want to obey the law would like to see it because it is not easy for the law abiding company or the law abiding citizen to know precisely what it is he is prohibited from doing and, therefore, what it is that he is permitted to do. Maybe this problem is absolutely incapable of determination because of the way in which the Government wants to approach this question of trade practices. We certainly see the difficulties but feel that as far as we are able to do so we should endeavour to clarify and give some guidelines to those people who want to know what it is that this particular provision states. I indicated earlier that the prohibitions in the clause are prohibitions which apply to a corporation- I quote what is in the Bill- that is 'in a position substantially to control a market for goods or services '. What is a corporation that is in a position substantially to control a market for goods or services? It may be, as the existing legislation to which we were committed says, a company which holds one-third of the market. Maybe in our day that was much too rigid a test.


Senator Murphy - Senator, wouldyou allow me to interrupt for a moment to assist? I would like to indicate that the Government sees no difficulty in this. It is not an exclusive test. The amendment seeks to include some matters. We considered such a provision but thought that it was not necessary. But if the Opposition thinks that the amendment will help it may shorten the argument to indicate the Government's view.


Senator GREENWOOD - We are indebted to the Attorney-General (Senator Murphy). He has cut me short and I will take only another minute whereas previously I would have taken another six. I am grateful for what the Attorney-General has said. We welcome the Attorney-General's statement, but it evidences what I said at the outset. We in the Opposition are concerned to improve this Bill as much as we can and when we have the Attorney-General saying that the Government is prepared to accept our amendment, I am happy to acknowledge it. But I state simply that the short point the Opposition is trying to establish is that the definition of a corporation which is in a position substantially to control a market is vague. Such a corporation is not easy to define. The Opposition's amendment states: (2a) For the purposes of this section, a reference to a corporation being in a position substantially to control a market for goods or services includes a reference to a corporation which, by reason of its share of the market, or of its share of the market combined with availability of technical knowledge, raw materials or capital, has the power to determine the prices, or control the production or distribution, of a substantial part ofthe goods or services in that market. '.

It is not perfect by any means but it helps and that is our purpose.


Senator Cavanagh - Is not the question of ability to control a question of fact?


Senator GREENWOOD - It is a question of fact.


Senator Cavanagh - Well, why do you want all the verbiage in?


Senator GREENWOOD -Because the person who first of all has to determine what you call the question of fact is the corporation which wants to obey the law. It has to make that decision and it will make it flanked by lawyers who will charge enormous fees which will be added to costs and be ultimately reflected in prices. But the company makes that decision of fact. However it may be the wrong decision because ultimately the Commission or the Attorney-General or some other citizen may take a different view and haul this corporation before one of the courts and ultimately it becomes matter for the judges. The legal profession, I know, has a warm spot for Senator Murphy because when conveyancing and other matters are diminishing in the amount of remuneration they provide for the profession, Senator Murphy is filling the gap. He is giving them Commonwealth legislation replete with legal problems and questions. I know that they are looking to that as the new arena. I acknowledge what Senator Murphy has said, that he will accept this amendment. I have explained why we have moved it and we thank Senator Murphy for his acceptance of it.

Amendment agreed to.







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