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Tuesday, 7 December 1965


Mr WHITLAM (Werriwa) .- The Committee has made it quite clear that it wants agreements registered, and that it wants particulars of those agreements to be supplied when required. The Committee has also made it clear that it wishes failure to supply particulars to be an offence. Some honorable members opposite have asserted that all those features are what one would expect in a police state. I am not going to be deterred by that allegation, because if one accepts it, then the overwhelming majority of the Committee - all the members of the Labour Party, all the members of the Country Party and a considerable majority of members of the Liberal Party - are supporting a police state. I propose to move an amendment, which has been circulated in my name, to make the provisions of the Bill complete. I move -

That the following new clause be inserted in the Bill- "43a. - (I.) Where any particulars have not been furnished as required by this Act, every person Who 1 is guilty of an offence by reason of the non-furnishing of the particulars is subject to a continuing obligation to furnish those particulars, which obligation continues until he or some other such person has furnished the particulars. " (2.) A person who makes default in compliance with his obligation under the last preceding subsection is guilty of an offence punishable by a penalty not exceeding Two thousand dollars for each week during which the default continues.".

The Committee has provided that it shall be an offence to fail to supply particulars of a registrable agreement. A penalty of up to 2,000 dollars can be imposed for such a failure. If, however, a conviction is imposed for that offence and a penalty of any amount up to 2,000 dollars is imposed then there is no continuing offence at all. It is perfectly permissible to decline to give the particulars once one has been fined for failing to provide them. Accordingly, I propose that there shall be a continuing offence for failure to provide particulars.

The amendment which has been circulated in my name has been drafted, like the other amendments, by the Parliamentary Draftsman whose services were made generously and willingly available to me and my colleagues in this House and in the other place by the Attorney-General.It would be appropriate for me, and I am anxious to acknowledge the AttorneyGeneral's co-operation in providing this expert assistance and the co-operation of the Parliamentary Draftsmen in drafting the amendment. The House and the country is fortunate in having men of the capacity of our draftsmen. I have not but I could have made this acknowledgment in all my comments in the Committee stages of this Bill.

The former Attorney-General, Sir Garfield Barwick, intended that it should be a continuing offence to refuse to register or to refuse to supply particulars. He also intended that it should be illegal to carry on a practice which was not registered even if that practice was not in fact to the detriment of the public. I quote from the elements of his scheme incorporated in the speech made on his behalf three years and one day ago by the then Minister for the Interior, the present Minister for Shipping and Transport (Mr. Freeth). Under the heading "Effect of Registration or NonRegistration " the Minister for Shipping and Transport stated -

It is to be unlawful and an offence to engage in any of the abovementioned practices, or to agree to engage in any of them, unless there is a registered document which fully describes the practice to be engaged in.

Again, in this speech, it was stated on behalf of Sir Garfield Barwick, that it will be an offence - to carry on a practice within list A unless a document covering that practice is, and remains, registered. In addition, failure to register such a document would be an offence.

Later on, again on behalf of Sir Garfield Barwick, the Minister said -

But if a practice falling within list A is carried on without a covering document being registered, the persons involved will be immediately liable to criminal prosecution and, on proof by the Crown in the ordinary way, of their having carried on the practices, will have no defence of absence of public detriment available. To be able to justify one of the practices in list A there must be a covering document registered.

In the document which the Attorney-General made available to honorable members comparing this Bill of last May with the proposals of Sir Garfield Barwick of 6th December 1962, the difference in the two sets of proposals concerning failure to register is set out. Under this Bill failure to register is stated in this document as being -

An offence - but agreement remains lawful until found contrary to public interest.

Under Sir Garfield Barwick's proposals of three years ago, this document states that failure to register was -

An offence to carry on an unregistered registrable practice - and in addition the practice to be illegal.

This is a significant departure in this Bill from the original proposals made by Sir Garfield Barwick. It is a very empty threat to say to a large company that it will be subject to a penalty of 2,000 dollars if it fails to supply particulars of a registrable agreement. Honorable gentlemen on the Government side - the vocal eight who voted against the principal clause itself - have constantly referred to small businesses and the burden to small businessmen in having to seek the advice of senior counsel and to prepare a host of documents. The only cliche which they forewent was sympathy for the widows who would be harried in this way and the orphans who would be driven out of business. The big businesses, of course, will not be menaced by a penalty of 2,000 dollars for failure to supply particulars. Once they have been fined, even if the fine is 2,000 dollars, they will be able to carry on the practice without any risk unless or until the trade practices Tribunal issues an order to cease and desist.

Until that time - and the proceedings may take months or years - they will commit no offence in failing to supply the particulars.

There is no other restrictive practices legislation in the world, I believe - whether in Canada, where such legislation has been in force for 76 years, the United States of America, where it has been in force for 75 years, or, since the last war, in Great Britain and New Zealand, France, West Germany and the European Economic Community, all trading and industrial countries with which we compare ourselves - where there is not provision for a continuing penalty when people fail to provide information in accordance with the law. This Bill requires people to register agreements and to provide particulars where required. Once they have failed to do so then they are subject to one single prosecution, one single penalty or fine. Clearly Sir Garfield Barwick's proposals should have been implemented on this point, as on so many others. The amendment which I have moved will effectuate the principle which he proposed three years and one day ago.







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