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Thursday, 15 August 1974
Page: 997


Senator GREENWOOD (Victoria) - I move:

In sub-clause (2) leave out the words: 'Except when it is necessary to do so for the purposes of or of a proceeding under or, arising out of this Act,

Clause 149 is linked with clause 148 to which the Committee has just agreed. Clause 148 enables the Trade Practices Commission to obtain and retain custody of any document which had been given to or was held by the Commissioner of Trade Practices under the existing legislation. I want to emphasise that not all but most of this documentation was obtained by the giving of an assurance by the previous Government that it would be kept confidential. The purpose of our amendment is to ensure that that confidentiality is preserved. I ask honourable senators to look at what is contained in clause 149. The clause states:

A member of the Commission or a member of the staff assisting the Commission shall not, either directly or indirectly, except in the performance of a duty under or in connection with this Act-

(a)   make a record of, or divulge or communicate to any person, any information concerning the affairs of any person acquired from-

(i)   a document, copy or extract referred to in section 148: or

(ii)   a document acquired by any person by reason of any office or employment under or for the purposes of the Trade Practices Act 1965, or that Act as amended, or the Restrictive Trade Practices Act 1 97 1 , or that Act as amended; or

(b)   produce to any person such a document, copy or extract.

The clause goes on to state:

(2)   A member of the Commission or a member of the staff assisting the Commission shall not be required to produce in a court a document, copy or extract referred to in sub-section ( 1 ), or to divulge or communicate to any court any information concerning the affairs of any other person acquired by him from such a document, copy or extract -

These are the crucial words-

.   . except when it is necessary to do so for the purposes of, or of a proceeding under or arising out of, this Act.

What we have is a scheme under which the Trade Practices Commission can virtually hold and use the material which is held at the present time by the Commissioner of Trade Practices. We do not take any exception to that. It is a sensible and useful course. It is quite clear from what is outlined in clause 149 that that material is to be kept confidential. It is material which can be used for the purposes of the Trade Practices Commission, but members of the Commission or members of the staff of the Commission are not to be able to divulge it to any unauthorised person. Furthermore, if in an ordinary civil action or an ordinary criminal action in the courts this material was sought from a member of the Commission, he could say that he was not allowed to divulge this material in court because clause 149 (2) precludes him from producing it in court. So the secrecy and the confidentiality are clearly to be preserved until we come to any proceedings which may arise out of this Act. What I think is the vice of these words and why we want to have them removed from the legislation is that people who are called upon to give confidential information to the Commissioner of Trade Practices under the existing legislation can find that very information used in court proceedings against them. Naturally we are concerned to ensure that that situation does not exist.

When we were in Government we believed that we managed to give some teeth to that earlier legislation by inviting people to give their agreements and other documentation to the Commissioner of Trade Practices. Such people were told that the material which was received would be kept confidential and that when the Commissioner of Trade Practices had to consider whether such an agreement was or was not contrary to the public interest there would be consultations. If, after those consultations, the parties to the agreement decided to discontinue their agreement that was the end of the matter and the agreement was never revealed. But if the parties decided to contest the Commissioner's opinion and the matter went before the Trade Practices Tribunal, those parties went before the Tribunal with the knowledge that what they had given to the Commissioner could be used against them. But they had the choice. They knew that if they wanted to defend their agreement the whole documentation would become public. If they wanted to desist from the practice and behave consistently with the public interest their particulars were not made public. That was the system which operated. It seems to me that whether or not the parties to the agreement like it and irrespective of their wishes or inclinations, this material can be used in proceedings under this legislation, and I think it is quite wrong. I ask the Attorney-General to reflect upon the enormity of this Government's taking action which repudiates a promise of confidentiality given by a previous Government.







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