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Wednesday, 14 August 1974
Page: 925


Senator EVERETT (Tasmania) - I listened to Senator Wright and the example that he cited in support of the proposition that in his view some such word as 'wilfully' had to be inserted in sub-clause ( 1 ) of clause 46. It seemed to me that he was completely distorting the proper construction of the sub-clause. I go so far as to say that if the word 'wilfully', or any word like it, were inserted in this clause the whole clause might just as well be struck out of the Bill because it would be completely purposeless, useless and ineffective. In the first place it must be appreciated that, so far as offence provisions are concerned, the element of wilfulness, if it were inserted in this clause, would have to be proved beyond all reasonable doubt.

Let us take the case of a corporate decision, which is the area with which we are dealing. How on earth could it be proved, having regard to the 2 elements which it would be necessary to consider for the purpose of determining whether there had been an offence under this proposed section, that the corporate decision was a wilful one? The 2 elements in this clause which would have to be proved in any prosecution- I take it to the stage of prosecution because it is easier to discuss on that basis- are, firstly, the taking advantage by a corporation of its market power and, secondly, that there was a purpose behind the taking of that advantage; for example, to eliminate a competitor.


Senator Greenwood - Where do you get that connection in the words, may I ask?


Senator EVERETT -Simply by reading them in a common sense way. I shall read with emphasis the words contained in clause 46. Sub-clause ( 1 ) states:

A corporation -

I shall leave out the next few words which are descriptive-

.   . shall not take advantage of the power in relation to that market that it has by virtue of being in that position - for the purpose of eliminating -


Senator Greenwood - But you have added the words ' for the purpose of.


Senator EVERETT -No, I am construing the word 'to'.


Senator Greenwood - That is the difficulty.


Senator EVERETT - I am construing the word 'to'. That is obviously what it is designed for. I take Senator Wright's point on this. How is it to be proved that there was a corporate wilfulness in relation to such a matter?


Senator Wright - What about conspiracies that are prosecuted day in and day out. What about the directors who enter into them?


Senator EVERETT -We all know about conspiracies and we all know about tapes. But I am dealing with a corporate decision which is made, firstly, to take advantage of market power and, secondly, to produce a certain result.


Senator Sheil - Like the Commonwealth Government.


Senator EVERETT - I do not understand the relevance of that interjection.


Senator Murphy - It has none.


Senator Sheil - It is going to take over these corporations.


Senator EVERETT - I am still none the wiser as to the relevance of the interjection and I therefore agree with the Attorney-General that it has none. The simple position Ls that you could never prove wilfulness in relation to a corporation in this matter. If you cannot prove it, what is the use of having the word 'wilful' in the legislation? I simply ask the Opposition whether it is endeavouring to emasculate this provision of the Trade Practices Bill. If it says no, we will accept the answer and say that it just does not understand.







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