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Thursday, 15 August 1974
Page: 981

Senator MURPHY (New South WalesAttorneyGeneral) - I will not respond to the provocation of Senator Wright. I would rather proceed with the Bill than divert to the path that he would like us to follow. I think it sufficient to say that the proper approach to be pursued in relation to clause 109 was indicated by Chief Justice Dixon in the case of the Australian Coastal Shipping Commission v O'Reilly, which is reported in 107 Commonwealth Law Reports at pages 56 and 57. It is evident from that case that one looks to the way in which Parliament has expressed the intention. In this Bill the intention has been expressed in clause 75. The Parliamentary Counsel have spelled it out in the drafting of the provision, and there is no doubt that what was intended was to see to it that, except in regard to the conditions of warranties to which I have referred, there was no overriding, to use the loose expression, of State law. The claims which the Opposition is making fall to the ground. The small claims tribunals would continue to exist. The cases which could be brought before those tribunals would be brought.

Senator Greenwood - Not under Commonwealth law.

Senator MURPHY -Senator Greenwood is asking whether cases can be brought before the small claims tribunals under the provisions we are considering. The answer is no. For these reasons I think Senator Greenwood was himself saying that these tribunals are not courts at all. They are small claims tribunals. They are certainly not Federal courts; they are not State courts. Indeed, a lot of the answer to what Senator Wright was putting is that a number of tribunals- I do not say all- do not apply law at all. They are told not to apply the law. They decide the cases according to equity and good conscience. Senator Wright would be familiar with cases decided in this way. The Privy Council in some famous case dealt with this matter, saying that the tribunals were not courts of law at all but decided cases on what they thought was, in effect, equity, good conscience, fairness, justice, and so forth. So Senator Wright's attack upon the legislation is really not merited.

Insofar as the law applies to claims by a buyer against an individual vendor, it is true that it will not be touched. What does Senator Wright have to complain about in that? Really his complaint seems to be that it is a pity that the legislation cannot go further. We have gone as far as we can. If he wants the legislation to go further and to cover the whole field there is no way the Commonwealth can do that. The only way is the way Senator Everett suggested. Let the States refer a power to the Commonwealth so that the Commonwealth can cover the whole field. But because under the Constitution the Commonwealth cannot act without such referral of power, we have done what is right and proper in regard to corporations. As I have indicated, in the field of conditions of warranties we have overridden or to some extent extended State law. This ought to have been done long ago by the Commonwealth to prevent contracting out. This measure is desirable. Nobody says that there is anything wrong in it. That is not the complaint.

Honourable senators opposite are saying that because there are some areas we cannot touch therefore they will vote against the legislation. That is a completely negative approach to legislation. We are coming towards the end of this debate and not one honourable senator opposite has said that there is anything wrong with any single provision in the Bill. The provisions have been carefully drafted and an enormous amount of work has gone into them. It is remarkable that in a legislative body we could have a whole set of provisions dealing with matters of false and misleading conduct, false representation, bait advertising, pyramid selling and a whole gamut of commercial conduct which, apparently, is clearly acceptable to the manufacturing community and nobody is prepared to say there is anything wrong with any of the provisions.

All honourable senators opposite can complain about is that because of the Constitution we cannot cover the whole field and as to relations between individuals, we cannot cover and change the law respecting those persons. What we have done is not to interfere with the rights of those persons as between themselves. Where corporations are concerned, we have given new rights and new and effective remedies backed up with the Trade Practices Commission. In this Bill public officials are able to go in and seek injunctions and there are legal aid provisions to assist persons. All of this is in accordance with rights which are accepted on all hands as being well drafted and sensible. For some continuance of negativism honourable senators opposite want to knock out such legislation. I think it is a pity that we should see this attitude even raised in the Senate, let alone persisted with to the point of opposition.

Clauses agreed to.

Clause 76.

76.   A person who- ( 0 conspires with others to contravene such a provision, is, if the Court so orders, liable to pay to Australia such pecuniary penalty (not exceeding $50,000 in the case of a person not being a body corporate, or $250,000 in the case of a body corporate, in respect of each act or omission by the person to which this section applies) as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Superior Court of Australia or the Australian Industrial Court in proceedings under this Pan to have engaged in any similar conduct.

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