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Thursday, 15 August 1974
Page: 990

Senator GREENWOOD (Victoria) - Clause 85 provides a broadly stated defence. The clause gives to a court in any prosecution an opportunity to exculpate any defendant if the defendant establishes that the contravention was due to certain circumstances such as mistake or reliance upon information supplied by another person or the act of default by another person or that he took all reasonable precautions and exercised all due diligence to avoid the contravention. We suggest that the amendment should be phrased in language which is covered by the provisions already to be found in Companies Acts throughout the country. We believe it is a better provision to use words which have been construed and which adequately provide whether or not a person should be excused from conduct of which he is otherwise guilty, if he has acted honestly and reasonably. We take the view that this amendment is appropriate in the context of trade practices legislation where people may be involved in an action honestly and reasonably and in circumstances where they ought to be excused and the court should have a discretion in relation to it to exonerate them. I think the amendment clearly expresses what we intend. I move:

Leave out the clause, substitute the following clause:

85.   Where in any proceedings against a person under this Part it appears to the Court that the person has or may have done an act in contravention of a provision of Part IV or an act referred to in paragraph 76 (b), (c), (d) or (e) but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit'

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