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Wednesday, 14 August 1974
Page: 921

Senator MURPHY (New South WalesAttorneyGeneral) - One of the complaints made by Senator Laucke, I think, is that some more precise term should be used. Really he is complaining against language itself. We use the word 'reasonable' in legislation. We use all sorts of other terms. There is no way of overcoming this problem. If one tried to formulate some kind of arithmetical test one would get into difficulty. How could one possibly do it? In relation to competition, how could one measure 5 per cent of competition? There is really no way in which one can approach these matters other than to use some such terminology and allow for its application by some person or body if a quarrel arises about it.

How would it work out in practice? The persons concerned could approach the Commission and say 'Here is the restraint that we are contemplating', and get a certificate from the Commissiona clearance that what they propose to do is in order because it does not amount to a significant effect on competition. I am again using the words broadly. If a question arose otherwise, where the Government or the Commission considered that there had been some breach of the proposed Act, that they had not got some clearance and yet went ahead, as with anything else it would ultimately have to be resolved by a tribunal invested with authority to determine such matters.

We are in an area of language where there is no way of doing what Senator Laucke suggests, where there can be no absolute certainty. No man has ever been able to solve the problem which the honourable senator puts to me. I can pick out much worse instances for him which affect industry and commerce. For instance, there is the very action of negligence that is founded on the concept that an employer or manufacturer must take reasonable care to provide proper equipment and put in a proper and safe system of work. One might say to me: 'Can you not do better than describe it as "proper"? Can you not use some other word than "reasonable ' '? ' Who knows what is reasonable?

It is simply a problem of language and one will find instances on every page of the statute book where one can ask for the precision which Senator Laucke is asking for now. It is just not possible to give it. Those who are concerned with the legislation, as those who have considered it- the representatives of those in industry- seem to be satisfied that this is a proper way to go about it and that we are using words which will have meanings for them and which are capable of application within the framework of the proposed Act. We have done the best we can, I assure Senator Laucke, and it is not possible at all to do what he is asking us to do.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 46.

(   1 ) A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position-

(a)   to eliminate or substantially to damage a competitor in that market or in another market;

(b)   to prevent the entry of a person into that market or into another market; or

(c)   to deter or prevent a person from engaging in competitive behaviour in that market or in another market.

(2)   For the purposes of this section, a corporation shall be deemed to be in a position substantially to control a market for goods or services if that corporation and any related corporation or related corporations are together in a position substantially to control that market. (3 )This section does not prevent a corporation from-

(a)   engaging, during the period of 4 months immediately following the date fixed under sub-section 2 (3), in conduct that would constitute a contravention of subsection 45 ( 1) or (2) or 47 ( 1) if that sub-section had come into operation on that date; or

(b)   engaging, after the expiration of that period, in conduct that does not constitute a contravention of any of the following sections, namely, section 45, 47 and 50, by reason that an authorisation is in force in respect of the conduct or by reason of the operation of section 92, 93 or 94.

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