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Thursday, 15 August 1974
Page: 977


Senator MURPHY (New South WalesAttorneyGeneral) - I am advised that although the Tasmanian Parliament had referred powers to deal with this subject matter- they were used by this Parliament- that reference has lapsed. My advice is that it is under consideration again. Senator Guilfoyle asked whether the product information standards and the product safety standards applied to retailers. The answer is yes. Of course the retailers would have a defence which is referred to in clause 85, that if the contravention was due to a mistake, to reliance on information supplied by another person or to the act or default of another person or to an accident or to some other cause beyond his control and he took all reasonable precautions and exercised all due diligence to avoid the contravention that would meet the position of the retailers. I am advised that the retailers sought such a provision as clause 85. (4). We contend that there is a real need for better consumer protection laws and that the Australian Parliament is in the best position to deal with the matters dealt with in Part V. The provisions in that Part not only have the support of consumer bodies throughout Australia but also bodies on the other side of the fence like the Associated Chamber of Manufactures of Australia and the Australian Industries Development Association have indicated that they are not opposed to the provisions.

The questions asked by Senator Townley are important. I would answer them in this way: By and large the State laws are left to operate. This Bill does not override the State laws except in a very important part of the provisions contained in clause 68, which deals with contracting out provisions. In Division 2 of Part V conditions and warranties in consumer transactions are set out. Broadly, they incorporate the same kind of provisions as are in the State Acts dealing with conditions and warranties. The provisions in the Bill go somewhat further and combine and incorporate improvements that have been made in the United Kingdom legislation. As I understand it, there is no criticism of the provisions that we have made. But one important thing we have done in the Bill is to prohibit contracting out. The conditions and warranties which are in effect incorporated in the contracts are not to be avoided by the simple device of contracting out. You may be protected by the law in such cases as where you put your goods into the custody of some person and then receive the little ticket which takes away all your rights. That kind of thing is prohibited in this provision but it is not under State law. In that area one might say that this is overriding State law; I suppose that one could say in substance that it is. It is doing something which ought to have been done long ago.

Apart from that we cannot really say that State law is being overridden in any other respect.

I invite Senator Guilfoyle to turn to clause 75, which states that except as provided by subsection (2) this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. Sub-section (2) simply states that if a person does something which is an offence under State law and Federal law he is not liable to be convicted except under one of them, and not both. It is a common provision in other areas where there might be some concurrent operation.


Senator Guilfoyle - How would that be affected by section 109 of the Constitution?


Senator MURPHY - We have taken steps to see that section 109 does not strike down. Section 109 states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The purpose of clause 75 is to avoid the simple operation of section 109, so what Senator Guilfoyle and Senator Townley have raised has been given attention. In other words, the explanation we give is that we have avoided- except in the area which I mentioned about the contracting out provisions- the striking down of State laws by the operation of section 109 of the Constitution. So careful attention has been paid to that matter; it has been clearly covered. I can say with confidence to Senator Townley that that is the explanation, and it should be satisfactory. Mention was made of small claims courts. The small claims can still be dealt with. There is no knocking out of the small claims courts of the States. The claims which can be brought under State law can still be brought there.


Senator Greenwood - Do you say that under Commonwealth law they could be brought there?


Senator MURPHY - No, we are saying that the claims that already exist under State law can still be brought there. In no way will the consumer, who has a right, or claims a right today, be stopped from bringing his claim after the proclamation of this legislation. Whatever right he has under the State laws would continue; he can still make his claim. The operation of any small claims courts is not interfered with. The tragedy of it all is that the consumer does not have many rights; mostly, he is operating under deficient laws and there are no satisfactory remedies for him.

This legislation provides effective rights and effective remedies for the consumer. He has the ability of the Commission and public officials under the Attorney-General to assist him. This legislation also has a legal aid provision directed towards assisting consumers so that for the first time they will have effective rights against the corporations, and that is the area with which we are mostly concerned. After we have some ex- perience of this legislation and after some cases ave been dealt with by the courts, there is nothing to stop us from extending the scope of the enforcement provisions to include other courtssmaller courts and so on. That would be the obvious course. But somehow there is a misconception on the part of the Opposition that Part V will strike out all the State consumer protection laws. A further misconception is that somehow this legislation will stop the operation of the small claims courts which are already operating. That is simply not so.

I am not sure whether Senator Townley asked any other question, but it is clear that it is to the benefit of industry and commerce if they have nationwide provisions. I suppose it must be extremely remarkable that the only objection really being raised to these clauses is the kind of issue that has been raised as to what would happen to small claims courts and to State laws. I think it is a tribute to those who have worked so hard in the preparation of this legislation- my own officers and others- that they have developed an extremely good set of laws directed towards assistance to the consumers- effective remedies and the creation of most important rights, acceptable in general to the organised representatives of industry and commerce.

I suggest that it would be quite wrong in those circumstances to contemplate the rejection of this important development in the law because of some concern which is not properly based that somehow the small claims courts are being stopped or that State laws are being overriden. It is simply not so. The only argument one would have against this legislation would be to say: 'We would prefer not to have some national law; we do not want these rights to be created; we do not want these remedies to be there; we prefer to carry on as we are'. That is manifestly not satisfactory. The consumer organisations are not satisfied with it, there are conflicts from State to State and there is a lack of effective remedies. Even industry and commerce are coming round to the viewpoint that they would rather have a set of clear laws which would operate all over the Commonwealth.


Senator Townley asked about co-operation with the States and with the various bureaus in administration. There would be powers vested in this Trade Practices Commission to conduct research in relation to matters affecting the interests of consumers, to make available to the public general information in relation to matters affecting the interests of consumers, to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions and the exercise of the powers of the Commission and in short to do all things necessary to assist. I think it is a matter of common sense that there ought to be the utmost co-operation with those agencies of the States which are concerned with consumer protection. I am sure that that would take place and I would do my best to insist that it take place. A good deal of expertise has been built up among people who have long experience in consumer affairs in the various agencies of the States and it would be not only not good administration but also certainly against the public interest and the welfare of the nation if there were a failure to co-operate with the States and their agencies in this area. I think those were all the matters which were raised by Senator Townley and Senator Guilfoyle on which they sought an answer. I ask that the amendment moved on behalf of the Opposition be not accepted.







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