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Thursday, 15 August 1974
Page: 994


Senator GREENWOOD (Victoria) - I appreciate what the Attorney-General (Senator Murphy) has said and understand how he has reached the position that he has reached. I move:

Leave out all the words in sub-clause (5) from and including the words 'results, or is likely to result, in a specific and substantial benefit' to the end of the sub-clause, substitute does not result, or is not likely to result, in a detriment to the public and that, in all the circumstances, the fact that such a detriment does not, or is not likely to, result justifies the granting of the authorisation '.

We on this side of the chamber accept the broad proposition that there should be a fundamental freedom of contract. If the freedom of contract results in a detriment to the public there should be some restriction on the parties' freedom. This is a fairly general and traditional Liberal principle which acknowledges the right of the public interest to intervene when a detriment to the public is shown. That ought to be the emphasis of this provision. Instead of leaving the parties to show that there was some specific or substantial benefit- as it was originally and which is a difficult enough concept to establish- we would suggest that it should be sufficient to show that there had been a detriment to the public as the criteria upon which the decision should be made as to whether an authorisation was to be granted. But as the Attorney-General has indicated his view I do not persist further with the amendment.

Amendment negatived.

Clause, as amended, agreed to.

Clause 91 agreed to.

Clause 92.

(2)   Where a corporation so gives notice to the Commission, the Commission may at any time give notice in writing to the corporation stating that the Commission considers that any restraint of trade or commerce that results from the contract, arrangement or understanding or would result from the proposed contract, arrangement or understanding, has or would have such a slight effect on competition as to be insignificant, and, if the Commission gives such a notice, the contract, arrangement or understanding shall be deemed not to be in restraint of trade or commerce for the purposes of this Act.

(3)   If, at any time after the Commission has given notice under sub-section (2) to a corporation in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the Commission is satisfied that the notice was given on the basis of information that was false or misleading in a material particular or that there had been a material change of circumstances since the notice was given, the Commission may revoke the notice and, in that case, sub-section (2) ceases to operate, after the expiration of 30 days (or such longer period as the Commission by writing permits) after notice in writing of the revocation has been served on the corporation, to deem the contract, arrangement or understanding not to be in restraint of trade or commerce for the purposes of this Act.







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