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Tuesday, 7 December 1965


Mr KILLEN (Moreton) .- I move -

At the end of the clause add the following sub-clause: - " (3.) No order under this section shall be made unless the Commissioner shall undertake to pay to any party restrained damages arising from an order restraining the party where it is subsequently determined by the Tribunal that the agreement or practice was not contrary to public interest.".

If I may give some sharp intelligibility to this, I say with great respect that in my opinion what was palpably wrong with the previous amendment which failed - I use this merely by way of illustration - was that there was no undertaking on the person who sought an interim order or who was granted it to meet any damages that may arise. I submit that if it had been done on that basis it would have met with a great deal of sympathy. I, for one, would have supported it. But it was not put on that basis. I suggest to the Opposition and also to the Attorney-General that under clause 54 the Tribunal could make a delaying order which could run on for X-months.

I pick up the argument of the Deputy Leader of the Opposition (Mr. Whitiam) and I hope that I can at least wring out of him some measure of consistency on this occasion. If his argument with respect to timetables was valid before, it is valid with respect to this case also. If the Tribunal takes two years to make up its mind and the Commissioner comes in and seeks an order to hold a person at bay, so to speak, for two years and it turns out when the Tribunal has had an opportunity to examine the alleged examinable practice that it is in fact not an examinable practice, that is it not contrary to the public interest, I think it is up to the Commissioner or the Government of the day to meet the costs. I always think it is a grave error to separate power from responsibility. Where we give to the Commissioner tremendous power, as we do under this provision, and no not fetter him with a sense of responsibility, we are laying the way for grave errors of judgment. I submit that the case does not require any greater spelling out. The case is clear and it is substantial. The effect of this amendment would be that no order shall be made under this clause unless the Commissioner shall undertake to pay to any party restrained damages arising from an order restraining the party where it is subsequently determined by the Tribunal that the agreement or practice was not contrary to the public interest. I submit that the amendment is in sharp conformity with a sense of fairness and with common sense.

Amendment negatived.

Clause agreed to.

Clause 55. (1.) Subject to this section, proceedings under section 47 of this Act in respect of an agreement shall relate to the agreement as in force immediately before the institution of the proceedings. (2.) The Commissioner may, where he considers that there are special circumstances that make it desirable to do so, institute proceedings under section 47 of this Act in respect of an agreement as it was in force before a determination or variation that took place before the commencement of the proceedings, if the agreement as then in force was an examinable agreement. (3.) If, while proceedings under section 47 of this Act in respect of an agreement are pending, it is shown to the Tribunal that the agreement has been determined since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings in respect of the determined agreement, but otherwise shall dismiss the proceedings. (4.) If, while proceedings under section 47 of this Act in respect of an agreement are pending, it is shown to the Tribunal that the agreement has been varied since the institution of the proceedings, the Tribunal shall, if the Commissioner requests it to do so, continue the proceedings -

(a)   in respect of the agreement as it existed before the variation; or

(b)   in respect of the agreement as varied, or both, but otherwise shall dismiss the proceedings.







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