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Wednesday, 14 August 1974
Page: 919


Senator WRIGHT (Tasmania) - I remain unenlightened and I ask the Committee to spare me the time to make one or two further remarks. I would have thought that in this realm there would be included not only master and servant relationship but also the vendor and purchaser relationship. Also involved are questions of co-operative companies. Several cases of restraint of trade in articles of association, particularly of co-operative companies, come nearer to the type of restraint that I thought we were reaching out to provide for in this legislation. It would never be argued, but for this legislation, that a provision which was simply in restraint of trade, but not unreasonably so, was void. But this legislation is so expressed that clause 45 states:

A contract in restraint of trade and commerce ... is unenforceable . . .

Later the clause contains the words: 'if the restraint has such a slight effect on competition'. That is hardly the sort of word that is appropriate to a master and servant case or a co-operative company case. It is the sort of word which has relation to the type of contract that refers directly to trading activities between traders. The Bill says that such arrangements are to be struck down but also says that they are not to be struck down if the restraint has such a slight effect on competition as to be insignificant. Does that catch the question of master and servant relationships, vendor and purchaser relationships and co-operative companies, or is it limited simply to a trade association whereby 50 members of a trade association say that they will sell their goods only in accordance with provisions (a), (b), (c) and (d)? In that case I can understand any restraint being referred to as having a slight effect upon competition; but, in the other cases, no.

I am only seeking enlightenment because I really suggest that the little that we have scraped the surface here in this discussion illustrates only the dust on the street. The mud in the road that has to be ploughed through by litigants laboriously and expensively to get to the true meaning is illustrated by what I say. What happens when the situation is reached where the old law applies to individuals and the new law applies to corporations? What happens where the agreement is between a corporation and an individual? We know of some individuals who are in substantial trade. What is the position? I understand that this legislation has nothing to say in regard to the position of a contract between a number of individuals who are not corporations.

I have not risen simply for the purpose of speaking. I have risen for the purpose of trying to indicate in a very tentative way the difficulties I feel in seeing any clear meaning in this legislation. I refer to the difficulties I see that will confront people who are anxious to comply with the legislation and yet will not know its meaning. I lay that before the Committee not because I attempt to add further clarification by way of amendment but to give opportunity to others who have assistance more readily at hand if it is appropriate to consider whether clarification is needed. I ask the Minister: Am I in error in remembering that somewhere in this legislation there is a specific provision to say that the provisions do not apply to the sale of goodwill?







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