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Thursday, 15 August 1974
Page: 979

Senator WRIGHT (Tasmania) - After that long and rambling explanation I feel justified in taking just a little time to state my position with regard to this legislation because I submit that the proposition that Senator Murphy has put before us is completely fallacious and false. The Constitution provides that where there is an inconsistency between State and Federal law the Federal law prevails and that means that the State law is nullified. It is the Constitution which says that and nothing in an Act of Parliament which enacts an inconsistent law can continue the life of State law against that constitutional invalidity provision. There has been ever so much exposition in this field with regard to the way in which Acts should be interpreted. It is permissible to say that an Act shall not be interpreted so as to conflict with the Federal law if that is consistent with its language and its general content. But here we are not interested in what the commercial community says as to the acceptability of this.

I can imagine G. J. Coles and Co. Ltd and any other interstate company with professional counsel and a long pocket being quite content to have a Commonwealth-wide law, and any question of a State's inconsistency will not trouble them. If it did, they would be able to go ad lib to the High Court and other Federal courts at great expense.

But my colleagues and I are concerned with the little man out in the suburbs who has a debt of $200 to a plumber who has not done his work properly or who has a shoddy car that was sold to him for $500 and who wants to get a quick decision.

Senator Murphy - How is that affected by this legislation?

Senator WRIGHT -I am about to point that out. I invite the Attorney-General to look at clauses 69, 70 and 71.1 will take clause 71 as an illustration. That is a case of implied undertakings as to quality or fitness. It provides:

(   I ) Where a corporation supplies (otherwise than by way or sale by auction or sale by competitive tender) goods to a consumer in the course of a business, there is an implied condition that the goods supplied . . . are of merchantable quality . . .

That is not language that is used in practically every State Sale of Goods Act. Since 1890 or thereabouts in every State Sale of Goods Act there has been a provision that where goods are sold by description there is an implied condition that the goods shall comply with the description. Another provision says that where a seller has sold goods, which it is in the course of his business to sell, in such a way as to show that the purchaser relies upon the vendor's skill and judgment to supply goods that are suitable for the purpose- that of course would be the case of all sales in a chemist's shop- there is an implied condition that the goods shall be fit for the purpose for which they are supplied. I do not pretend to state the provision completely, but that is accurate enough.

There are inconsistencies as to clause 7 1 because it attempts to exempt sales by auction and sales by competitive tender. This applies to contracts for the supply of goods and not merely for the sale of goods. Then it purports to exclude the protection as regards defects specifically drawn to the consumer's attention before the contract is made. That is an instance in which any lawyer taking it up will see four or five inconsistencies between that proposed section and the relevant section of the Sale of Goods Act in every State. The little man from the suburbs who is complaining about a plumber's bill or about a car that he bought for $500 wants to get his remedy in a State court according to a State law. But what will happen immediately he goes into a small claims court? This is where the deceptive nature of the Attorney-General's argument comes in. He would certainly come within the prohibition under clause 52 of this Bill, which provides that a corporation shall not in trade or commerce engage in conduct that is misleading.

Nor should an honourable senator, submitting argument in this place, submit argument that is misleading. I am saying that it is no answer to the concern that I have for the small consumer, and that I have no doubt Senator Townley has for the small consumer, to say that the small claims courts in the States will still exist. Of course they will still exist. But with the administration of which law will they be confronted? Immediately this comes up against a Sale of Goods Act a constitutional question arises and for as long as the long pocket of Coles will last in the taking of appeals to the High Court it will be able to litigate such a fellow out of any access to justice. That is the concern that I have in this regard.

The next point is that the Commonwealth's power, if any, in this field is limited to corporations. But in the small claims field the selling of goods is done not only by corporations but also, to a large extent, by firms and private traders. There has been no suggestion from or even implication by the Attorney-General that this law will affect the State law where Smith, a vendor, sells a motor car to a small purchaser from the suburbs. There we have, in relation to the sale of goods, a gulf between the law applicable to a company and the law applicable to a private vendor. So we have endless confusion. If the Commonwealth had the power to legislate with regard to the terms and conditions upon which goods and services should be sold or supplied, and therefore was able to bring into effect an effective and operative law which was simple, clear and easily accessible, we would not be protesting against provisions such as this one. But the thing is that it will inveigle every small consumer into this web of confusion and of costly and constitutionally vexatious law. It is not an answer for the Attorney-General to say that the small claims courts will continue to exist. They will continue to exist in a befogged state of the law in which the commercial community will have an immense advantage by its being able to litigate those intricate issues that are costly and thereby prevent the small man ever going to law. One of the things that is bedevilling the legal system at the present time is the cost of it.

Senator Greenwood - It is the real meat of consumer protection today.

Senator WRIGHT - Exactly. We have our consumer protection courts, our small claims courts, our inexpensive courts of request and so forth. I have risen only to state quite clearly that I repudiate the submissions of the AttorneyGeneral as being even an elementary exposition of the state of the law that will result from this attempt to plaster a whole federal fabric over what is now the pattern in each State according to legislation that has been in existence for varying periods of time. It is the legal confusion and the constant costliness which gives an advantage to the commercial community as against the consumer. That is my reason for objecting to the whole of this Part.

Sitting suspended from 1 to 2.15 p.m.

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