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Friday, 15 June 1984
Page: 3211

Senator CRICHTON-BROWNE(9.58) —The matter raised by Senator MacGibbon and Senator Chaney has exercised my mind also. The best legal advice I have got is that it would depend very much on the High Court of Australia as to how long denial of access to one's own land would prevail before the High Court made a determination as to whether it was an acquisition in the real sense. The best legal advice I have got so far is that two years may not be adequate to fall within the scope of the land in fact having been acquired. This Bill may well provide that land can be taken from its rightful owners without compensation for loss of production or loss of the land in terms of its intrinsic value for a period of two years. To me that seems to be a major defect .

I now refer to clause 25 (1) in relation to body corporate responsibilities for acts of servants and agents. While I understand the master-servant relationship is an inherent part of commercial law, I do not know that it is thoroughly appropriate for this Bill. By way of example I instance a mining company based in Perth-for the benefit of Senator Grimes let us say that it is the Poseidon company-with an exploration activity in the far flung parts of Western Australia . That company might have a bulldozer driver who, contrary to specific instructions from the company, breached a provision of a declaration. That company would then be automatically held responsible. Of course, the penalties are enormous. For a person the penalties are $10,000 or five years gaol and for a body corporate there is a fine of $50,000.

I find clause 25 (2) even more difficult because it embraces a much wider scope . That clause states:

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

I make the point that it says--

Senator Georges —We have heard it all before.

Senator Macklin —Several times.

Senator CRICHTON-BROWNE —I know Senator Macklin has a temptation to see himself as a pseudo Minister but for the time being I ask him to let Senator Grimes answer the questions.

Senator Georges —I have listened to this several times. I know what the answers are, which you do not.

Senator CRICHTON-BROWNE —I do not understand why Senator Georges is not sitting in Senator Grimes's place and Senator Grimes is not sitting in Senator Georges's place. That is the fate of politics; we all know that.

Senator Georges —He gave the answer. I am satisfied. Why aren't you satisfied?

Senator CRICHTON-BROWNE —We have a democratic process in our Party and we are allowed to question certain things. We do not have this doctrinaire socialism which locks us all into a way of life which does not allow us freedom of thought .

Senator Georges —You asked the question three times. He gave the answers. I understand them. You don't. There is something wrong. Obviously you are at fault .

Senator CRICHTON-BROWNE —I would have thought that in those circumstances it really is extending the normal commercial master-servant relationship because it uses the words 'or by any other person'. In other words, a company could engage a bulldozer-driver in the far flung places that I referred to earlier in the north-west of Western Australia. He could subcontract the work or engage someone independently, with no master-servant relationship with the company and that person could breach a provision of the declaration. The company would find itself personally liable. In other words, we are divorcing this legislation from the master-servant relationship. We are going a step further. Somebody else, quite separate, quite independent and quite unrelated to the company, could commit an offence in the presence of an employee of the company, without that employee's consent-his consent could be implied because he did not do anything about it-and the company would suffer the consequences of and be held liable to pay the penalty. That really is extending the normal provisions of law and I would be glad if the Minister could give me an explanation.