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Thursday, 15 August 1974
Page: 999


Senator GREENWOOD (Victoria) - I wonder if the Attorney-General would inform me of the precise provision of the Act of 197 1 to which he earlier referred.


Senator Murphy - I referred to sub-section (3) of section 34.


Senator GREENWOOD -With all due respect to the Attorney-General, I think that to equate that provision with the provision with which we are now concerned is to compare matters which are completely unlike. The obligation under section 34 was to preserve the secrecy of the material which was placed with the registrar. As Senator Missen has pointed out, the only occasion when it could be divulged was for the purposes of a prosecution arising out of the Act. The prosecutions arising out of that Act were few and far between and were for breach of statutory provisions contained in the Act. That is totally different from the purposes for which these documents could be used under this legislation. We seek to remove the words:

Except when it is necessary to do so for the purposes of or of a proceeding under or. arising out of this Act.

Can honourable senators imagine the types of proceedings? We have removed from the Act the provision in clause 76 relating to pecuniary penalties, but I imagine that, in the consultations which must flow following that decision, some provision will take the place of clause 76 when the Attorney-General has an opportunity to consider it. I submit to the Senate that in that area it is far better to ensure that the confidentiality is preserved than to open wide the gates to the misuse of information.

If we examine the type of proceedings what do we see? We see proceedings by the AttorneyGeneral, by the Commission or by a private person. The Attorney-General could ask for this material to be produced and there would be absolutely no restriction upon its use once it became public material in the court. The member of the Commission who was called upon to produce it would have absolutely no defence. A private individual suing a company which he alleges has engaged in the practice of monopolisation, price discrimination or exclusive dealing or which has entered into a contract in restraint of trade under which that individual has suffered loss, could subpoena a member of the Commission to produce all documents relating to the hearing which was then in question. That subpoena would require the member of the Commission to attend before the court. If there was any material relevant to that particular action there would be no answer which the member of the Commission could raise, or that the person whose confidential documents were being exposed could raise, to prevent the court from ensuring that in the proceedings before him the ordinary rules were observed.

The magnitude of what is involved here is absolutely immense. It is totally different from the situation which arose under the earlier Act. Indeed, if the earlier Act was capable of a wider application this would appear reasonable- and that wider interpretation only now appears to be the situation, that would be a good reason for saying that that earlier provision ought to have been amended. As I said, they are totally unlike. I repeat the position I stated before: To allow confidential material which was secured on the promise of secrecy to be used- I would say misused'- by allowing it to be brought into court proceedings is totally wrong. I can only suggest to the Attorney-General that it is tantamount to this Government repudiating the basis upon which the previous Government brought its legislation into operation.

Question put:

That the words proposed to be left out (Senator Greenwood's amendment) be left out.







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