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Thursday, 15 August 1974
Page: 1001

Senator GREENWOOD (Victoria) - I move:

In sub-clause (7), leave out all the words from and including 'against the person' to the end of the section and substitute 'in any proceedings other than proceedings under this Section.'

I will explain what that means. Clause 155 relates to the compulsory powers of the Commission to obtain information, documents and evidence. It is one of those provisions about which there can be strongly held differing views. It is a power of enormous import. The Commission may require a person to attend before a member of the Commission, require questions to be answered and material to be produced. If that person does not comply he is liable to a penalty. It is the sort of power which even the police forces of this land do not have when they are investigating serious crime. I think that is the proper standard to be used. Even in the case of murder or other heinous crime in the community the police must respect the right of an individual to remain silent. In the area dealt with in this Bill that right is not respected; it is substantially qualified. The vexing problem in this whole area is this: What are the appropriate circumstances when a person may not be entitled to remain silent? I know that views are held strongly as to the propriety of compelling a person to give any information under any circumstances. In the Commonwealth arena, under the Income Tax Act a person can be compelled to appear before the Commissioner of Taxation, or one of his agents, and answer whatever questions are put to him and provide whatever material is requested. I recall that there are similar provisions under the National Health Act. An area where this matter has been of concern over the years is in respect of inspectors under the Companies Act. In even more recent times the same type of power exercised by Senate committees has aroused controversy amongst interested people in the country. Now we have a provision in the trade practices legislation which gives this power to the Commission to require the production of documents.

My recollection is that a power of this general character was in the earlier legislation out, of course, the earlier legislation was a different sort of legislation. The earlier legislation was concerned with the obtaining of information with a view to having it examined by an administrative officer and then, if a person was to be proceeded against, he was brought before a tribunal and a decision was made as to whether his conduct was against the public interest. Thereafter, if he misbehaved, there could be an injunction. That is one distinction between the provision as it existed under the prior legislation and as it is contained in this Bill.

The attitude of the Opposition is not to challenge the broad provisions of this clause. We accept, albeit reluctantly, the power of the Commission to obtain information in this way. But we want to limit that provision which is usually contained in these clauses so that information obtained in this way shall not be used in court proceedings against a person except in proceedings under this very clause. In short, if a person does not attend when he is called upon to do so or he does not produce documents when he is asked to do so he can be proceeded against for an offence under the clause and any material which is obtained is able to be used in those proceedings. But the material which is obtained is not able to be used in any other proceedings. The provision contained in sub-clause (7) states:

A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorised officer for inspection, is not admissible in evidence against the person- (a) in the case of a person not being a body corporate- in any criminal proceedings other than proceedings under this section; or (b) in the case of a body corporatein any criminal proceedings other than proceedings under this Act.

So one can find under this Bill, as it is cast, that the material could be used for the purposes of any of the proceedings under the legislation. That is a provision of enormous import. It is not limited to an offence against the clause as it is in the case of an individual; in the case of a company it shall not be admissible in any criminal proceedings other than proceedings under this legislation. So under Part V the Commission could compulsorily require information in the manner that is permitted by this clause and then use the information in criminal proceedings against that person.

Senator Murphy - Is that bad?

Senator GREENWOOD - Yes, it is bad.

Senator Murphy - Then why did you have it in the Restrictive Trade Practices Act?

Senator GREENWOOD -Because it is a different type of provision entirely- because the substance of the provisions contained in Part V of the legislation are vastly different from provisions contained in the earlier Restrictive Trade Practices Act regarding the filing of certain documents. We, for our part, believe that the appropriate amendment is to ensure that the information cannot be used in proceedings against a person except in proceedings under the clause. We think that otherwise it is opening these provisions far too widely. This approach is consistent, in a sense, with the decision of the Senate on the last amendment.

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