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Tuesday, 30 November 1965

Mr KILLEN (Moreton) .- Before I turn to the Bill I want to make some preliminary comments. First, all of my observations on this Bill this afternoon are based upon the assumption that the Bill, as an Act, will be found to be within power. That is an assumption that I make with some trepidation, because I believe there is a powerful and very respectable argument to be made out that this Bill, as an Act, will be found to be quite beyond power - in other words, not to be within the constitutional limits of the Commonwealth of Australia. Secondly, I wish to inform the House that last week it was my intention to move an amendment at the second reading stage of this Bill, but procedurally that is not a practical course for the simple reason that my amendment would have to be contingent upon the amendment moved by the Deputy Leader of the Opposition (Mr. Whitlam) being accepted, and that does not seem to offer much in the way of realism. So, instead, I will later circulate 38 amendments to the Bill.

Having said that, I now enter a protest against the method by which the Government has handled the timetable of this Bill. I speak as of now. It is my understanding as of now, subject to correction - objective correction, I hope, and not what some person may or may not have in his mind - that it is the intention of the Government to proceed after the second reading stage right through and to finish debate on the Bill as far as this House is concerned. Only on Wednesday of last week this House and the people of the country were told of the amendments which the Government proposed to the Bill. I remind the AttorneyGeneral (Mr. Snedden) that on 4th November I wrote to him, giving him a list of suggested amendments, couched very much in broad form. I have not as yet received an acknowledgment of my letter. I take a very poor view of the Attorney-General of this country treating a private member of Parliament in such an off-handed way. This is a very complex measure. It is one of tremendous philosophical and economic importance. Even though there may be some people disposed to shun philosophical inquiry and to dismiss it as being of no consequence, I yet hope to show before the debate is concluded that there still exists something of a passion to have regard for the philosophical bases on which political parties rest.

The third preliminary comment I make is this: All of us in this place have something of a trepidation that we will be misunderstood or misrepresented. I want to make it perfectly clear that for my part I believe that social, political and economic excesses should be fettered with all the rigor of the law. I believe that no person should be at liberty to put others in danger or in jeopardy. Having said that, I believe that it is no answer to economic or social excesses to resort to other economic and social excesses in order to curb them. I would have hoped that the Government would have found favour with the idea of stiffening the Australian Industries Preservation Act. That Act has been shown by recent decisions to have an efficacy that was hitherto not suspected. I believe that Act would be quite sufficient to meet most of the problems that this measure seeks to meet. So I hope that nobody, political foe or political friend, will level against me the charge that I am in any way seeking to speak for vested interests or business interests of any description. I have no wealth. I do not know whether I am particularly interested in acquiring it. But I am vitally concerned with preserving intact as near as possible the philosophy that gave rise to the creation of the party to which I belong.

I attack the Bill on five grounds. They are: First, the manifest discretions given to the tribunal and to the Commissioner; secondly, the requirement of registration of agreements; thirdly, the uncertainty and width of definition reposing in clause 37, which is the clause dealing with monopolisation; fourthly, the uncertainty and absence of explicit meaning of public interest as found in clause 50; and fifthly, the absence of a proper system of appeal.

I turn to the first ground upon which I attack this Bill. It would be impossible to describe adequately and accurately the proposed tribunal. It is not enough to describe it as an administrative tribunal. It would be manifestly wrong to describe it as a judicial tribunal. In many respects it has a legislative character, as one realises if one pauses to reflect upon what the meaning of " public interest " has to be under clause 50 of the Bill. I acknowledge at once the tremendous difficulties that any Commonwealth Government or Commonwealth Parliament must find in legislating in this field because of the necessity to divorce completely administrative from judicial functions, but I invite honorable members of this House and also those outside the House to consider earnestly the tremendous powers that are given to this tribunal. Clause 52 (7.) says -

Orders of the Tribunal have the force of law.

Admittedly the actual enforcement process cannot be carried out by the tribunal, but nevertheless there are enough aspects of the character of the tribunal to make out at least a prime facie case that it is quasijudicial in nature. That is a rather inelegant phrase and possibly inapt, but it meets some of the perceptions I have of the tribunal.

But it is merely an administrative tribunal? It gathers to itself tremendous powers. This is a tribunal the like of which no statute of this Parliament has hitherto sought to create in terms of power and in terms of strength. The Tariff Board by contrast with it is as nothing. At least the reports of the Tariff Board are considered by the Government and can be ultimately rejected by this Parliament. But let no person be under any misapprehension about this tribunal. No determination that is made by it can be interfered with in any way by the Government or the Parliament. Clause 37 provides that the tribunal shall determine what shall be a part of Australia, " if it is satisfied that it is appropriate to do so " - and this brings me to the singular objection I have to this entire measure. I had taken the view until now that it was a well regarded principle of our constitutional history that the law should be explicit and that no person should be in any doubt as to its meaning. But I invite my friends to go through this Bill and look at the tremendous discretions that are given. We find such phrases as " if it is satisfied " and " as it considers appropriate ", and this means that the proposed body is given power that is not trammelled by law, and power that is not trammelled by law makes law irrelevant. If there are those who are eager to hand over to a tribunal not responsible to this Parliament power to order the affairs and lives of people throughout the community, I do not share their enthusiasm, and I can assure them that I will offer all resistance against it.

Clause 37 sets out the form of the inquiry and the form of the determination to be made by the tribunal. The tribunal shall determine its own jurisdiction - " if it is satisfied ", " as it considers appropriate ". When it comes to the issuing of orders, under clause 52 the tribunal shall issue such orders as it thinks appropriate. When it comes to a question of referral of a point of law to a court the tribunal may do so, or it may do so, if it thinks fit, on behalf of another party - a form of legislative insolence without parallel in the Commonwealth of Australia. We will find people throughout this country saying, in the language of " Measure for Measure " - . . is it a lawful trade?

The answer given is -

If the law would allow it, Sir. . . . But the law will not allow it.

One finds that Shakespeare gave an almost phophetic and certainly an unerringly accurate account of this Bill and of the tribunal in particular when he wrote -

Bidding the law make curt'sy to their will.

That describes precisely the character of this tribunal. It makes the law and it makes the Jaw according to its own will, not according to objective criteria but to subjective criteria - " as it thinks fit ", " as it is satisfied ", " as it considers appropriate ".

Some may say: " This is a system of convenience; let it be so regarded ". But if we are to allow convenience to become the basis on which we order our society, let there by no complaint when liberty completely dries up. Convenience has always been the battle cry of governments, and now we are combined to amend that battlecry so that it shall be " convenience with discretion " - and these discretions that are given to the tribunal are discretions very difficult to be convovled. We have never bad, and our people have never had, any system of administrative courts. The droit administratif has been rejected by our people. The courts of law have always sought to control administrative tribunals, but the insertion of such phrases throughout the Bill as "if it is satisfied", "as it considers appropriate ", " m its opinion " means in effect that when prerogative writs, clumsy as they may be, are resorted to for controlling the tribunal the possibility of a successful prosecution is reduced. Looking at the clause which makes provision for the retention of the prerogative writs of certiorari, prohibition and mandamus, I find rather an ugly piece of cynicism. It means that unless there is a manifest error in jurisdiction or law the courts cannot control it. The courts cannot replace the discretion of the tribunal with their own discretion. If an individual finds himself in the position in which he challenges a determination made by the tribunal and seeks to challenge that by way of proceedings by prerogative writ, his prospects are dim.

At least I think we should be grateful for the opportunity of being here to say hail and farewell to a sizeable portion of the legislative power and authority of this Parliament, of seeing that power and authority handed over to an administrative, quasi-judicial, in some respects legislative body not responsible to the Parliament.

I turn to the second ground on which I attack the Bill. I refer to the requirement that agreements should be registered. I submit that this is completely unnecessary. I submit that experience elsewhere in the world has shown that there are no gains, spectacular or otherwise, to be won by governments or administrations requiring agreements to be registered. I submit that the requirement of registration will mean the creation of a tremendous bureaucracy to administer it. Beyond that, however, I point to what I regard as a fundamental weakness in the requirement of registration, and that is the complete absence of certainty as to what should be required. I invite the House to look carefully at subclause (2.) of clause 91 which deals with the definition of " agreement ". It says -

An arrangement or understanding, whether formal or informal and whether express or implied, shall be deemed to be an agreement.

I am looking forward to the Committee stages and to wringing from the AttorneyGeneral (Mr. Snedden) some examples of an informal, implied understanding - a collocation of words which seems to me at least to have a dominant quality of vagueness. It may be said that registration is a fact-finding process. That, in my submission, is of no help at all. If a man fails to register he faces a penalty. He has committed an offence. Again I say that I had believed until the advent of this Bill that when any question arose of the infliction of penalties under a statute there should at least be complete certainty as to what the statute meant. I propose to test the bona fides of the Government in the Committee stages by moving among my amendments an amendment to clause 43 of the Bill. This is the provision that requires registration and creates the offence of failure to register. I shall move an amendment to provide that it shall be a defence to a prosecution that the individual believed that on reasonable grounds there was no need for him to register. To point up the utter absurdity of this position I ask the House to look at the defences already available under clause 43. An individual may take the view that he did not know whether something was a registrable agreement or an examinable practice. He may go away and get legal advice on the matter. His legal advice might lead him to believe that it is not a registrable agreement, but that does not provide him with a defence if he is prosecuted under the Act. It puts the individual in a virtually impossible position. As I say, Sir, I will seek to modify the defences as far as clause 43 is concerned.

I turn to the third objection I have to this Bill. It relates to clause 37. With the greatest respect I submit that the Government does not quite understand all of the implications of clause 37, and I invite the AttorneyGeneral to lay on the table of this House his opinion as to its meaning, and also to lay on the table opinions prepared by counsel from the New South Wales bar, the Victorian bar and the Queensland bar as to the full implications of this clause. The honorable gentleman has never referred at any stage, and neither has any spokesman for the Government anywhere in Australia, to price control in relation to clause 37. 1 leave aside the question of monopoly. That is of the utmost significance but my time is rather short. I am concerned with the possibility of using clause 37 for price control. Before the Attorney-General gave notice of his amendments, the House will recall that the tribunal could, if it were satisfied, deal with any part of Australia in relation to any person who lay, stood or sat - whatever the appropriate word may be - in a dominant position in a line of trade. This again is determined by the tribunal if it is satisfied. The AttorneyGeneral has given notice that this part of the clause, or section as it will be, is not to be regarded otherwise than as applying to a State or a Territory inasmuch as the tribunal is satisfied or considers it appropriate. At first blush it might appear that "part of

Australia " was projected out into meaning a State. I submit that that is not so, and that the ultimate discretion for this comes back to the tribunal. I propose to give the House some illustrations.

There can be no argument that the Broken Hill Pty. Co. Ltd. is in a dominant position in a line of trade in Australia. Suppose that the Commissioner took that company before the tribunal after having had consultations with it under clause 48. The tribunal could take the view that B.H.P. in selling 16-gauge steel for £70 a ton, was taking advantage of its dominant position in a line of trade, and it could make an order - again as it thought fit - under clause 52 that the company should sell its steel for £50 a ton. Admittedly you cannot do indirectly what you cannot do directly, but if there is anything which seems to my mind to be beyond Commonwealth power it is the reference made in clause 37.

Let me take an illustration affecting a State. I refer to the Toowoomba foundry which produces agricultural and irrigation equipment. In terms of a substantial area of the market, which is the requirement of clause 37 (1a.), there can be no argument at all because the Toowoomba foundry is the largest producer of windmills in the whole world. If the tribunal adjudged the those items should be sold not for £125 but for £75, again it could make an order under clause 52. That again is an example of price control. It is of no avail for anybody to protest that that is not likely to happen. I am interested in what can happen; likelihood is another irrelevancy. One should be concerned with the possibility that this clause may be used by people who have access to this sort of machinery.

Let me give the House another illustration of a " part of Australia " in terms of this provision. It so happens that the little town of Ilfracombe, in central western Queensland, which has no more than 300 people has a wool scour. In terms of a substantial market that wool scour would handle virtually the whole of -.he wool scouring business for central western Queensland. It would be intelligible for the tribunal to come along and say in effect: " We propose to make a determination that whereas hitherto you have scoured wool for 6id. per lb., you will in future scour it for 5d. a lb.". What if the tribunal turned its attention to the advertising rates of the " Sydney Morning Herald " or the Brisbane " Courier-Mail "? It could say to one of these newspapers: "You will reduce your advertising rate from 20s., or whatever it may be, a square inch to X shillings ". That would be quite within its power. For the life of me I have not been encouraged by anything that has been said or written by the AttorneyGeneral or anybody else to persuade me to conclude that clause 37, as it is presently formed, could not be used for a form of price control. I submit that it comes within that power.

I turn to the fourth ground on which I attack this Bill and that is the vagueness and uncertainty of the definition of public interest as it is found in clause 50. Honorable gentlemen will remember that clause 50 recites what could quite properly be described as a collection of political and economic slogans, and even the corporate wisdom of the Cabinet would not suffice to secure unanimity as to what the various phrases and slogans mean. If those of us in this House were to sit down and write in one paragraph what we understood as being the requirements of new business, of capital or labour, or one of the multitude of other things that are set out there, we would find no similarity whatsoever. Yet this is to be, in effect, delegation to the tribunal of what may not unreasonably be described as the legislative powers of this Parliament. We are in a very real sense putting the entire economic structure of this country into the hands of a tribunal which is not responsible to this Parliament. I leave the matter at that, but in the Committee stages I shall endeavour to excite a little more interest in clause 50 than has been shown so far.

Fifthly and finally I turn to the question of appeals. I had thought until this Bill was introduced that as far as administrative tribunals were concerned it was always right and proper that there should be an appellate system at least to another tribunal. As far as the question of law is concerned certainly there should be power to refer such questions to a court of law. These were conclusions reached as far back as 1932 by the Donoughmore Committee reporting in the United Kingdom. These conclusions were reached also by the Franks Committee reporting in 1957 on administrative decisions. There was on those Committees a galaxy of legal and administrative talent that would dwarf anything we have to offer in this country. Their reports set out in plain, simple, straightforward language the necessity to provide for an appeal to another tribunal. Certainly on a question involving a point of law provision should be made for an appeal to a court of law. What is in this Bill? We find an utter caricature of the system of appeal. If the review division wants to make any variation of a determination that has been made, it cannot do so. If it wants to reverse a determination that has been made then it cannot. It means, in effect, that an individual can go before the tribunal, win, at first instance, and the Commissioner has the right of appeal, so called. He can take the individual to the review division. If you happen to be the party concerned in the first instance then I do not think you will be very amused by the prospects of facing additional costs. Prohibition, in my opinion, would not lie. This is nothing more nor less than an advisory body. When it comes to a question of law the tribunal may have gone completely haywire, but can the party affected by that point of law have it referred to a court? No, it cannot. That party can only have it referred if the tribunal thinks fit. Why is that discretion given to the tribunal? I think that the appeal provisions within the Bill are completely unsatisfactory and at least the provisions for an appeal on a point of law to a court of law should be modified. For my part I will endeavour to see that they are modified.

Finally, may I say that there are those who take the view that this Bill is lacking in force. I do not share that view. I want to give an illustration of what can happen. The Commissioner, under clause 47, by virtue of information obtained from the register or any other source - it can come from anywhere at all and can be hearsay on hearsay - can go along to an individual and say: "You have a registrable agreement." The individual may protest and say that that is not the case and that he is engaged in an examinable practice. But he is fined. He has committed an offence under section 43.

Then the tribunal steps in and says: "We propose to make an order that you shall do so and so." Bear in mind the tremendous reservoirs of power given to the Commissioner under clauses 103 and 104 of this Bill which enable the Commissioner to go along, seize documents, impound documents, and do what he will with them. Such action is not excluded by the provisions of clause 48 relating to consultations. That is another condition I shall seek to remedy.

I regret that the Government, in trying to meet what I might describe as a political, economical and social weakness in the Australian community, has fallen on this form of legislation. I despise it heartily because it seems to me to represent the very quintessence of discretional power given to a tribunal not responsible to this Parliament. I have always taken the view that at least we should not seek to put people in peril of uncertainty of our statutes but that every individual, whether he agrees or disagrees with the law, should be put in a position to know what the law is, even though there may be some who would not agree. I think the following words of Kipling still hold good; -

Ancient right unnoticed as the breath we draw-

Leave to live by no man's leave,

Underneath the law.

If the tendency today is to take us away from that principle, then I say to the Attorney-General and to the Government that there is yet spirit abroad in the community to bring us back to it.

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