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Thursday, 15 August 1974
Page: 1002

Senator MURPHY (New South WalesAttorneyGeneral) - It is amazing how attitudes change. But in section 166 of the Restrictive Trade Practices Act- I am talking about the existing law- are provisions for the gaining of information by the Commissioner for Trade Practices. It states:

Where the Commissioner has reason to believe that a person is capable of giving information or producing documents relating to matters that constitute, or may constitute, an examinable agreement, an examinable practice or the practice of resale price maintenance, he may, by notice in writing served on that person, require that person to furnish

.   . such information:

The section continues:

A person -

This refers to either a corporate body or a natural person- is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document might tend to incriminate him, but his answer to any question asked in the notice, or his furnishing of any other information in pursuance of the notice, is not admissible in evidence against him in any criminal proceedings other than proceedings under this Act.

Senator Greenwoodwas responsible for the introduction of that section. It referred to criminal proceedings. He followed the well-known practice that in fields such as this there must be an investigatory function or else the body will not work. That is why he included that provision. He followed the well-known practice. Even the report of the Senate Select Committee on Securities and Exchange, brought down a few weeks ago, referred to the same kind of consideration. It stated:

In considering the powers which should be vested in such a body it is useful to point to another of the lessons in this case. As our inquiry progressed it became clear to us that we could not rely upon letters, public announcements, public statements, sworn testimony, statutory declarations or affidavits to reveal the truth. We found that the reports and statements by the directors and geologists were evasive, distorted, exaggerated and simply untrue in important respects. If a regulatory authority is to have reasonable success in protecting the markets from deceptive practices such as insider trading it must have the power to inquire and obtain all relevant documents and records and it must expect to use that power.

The same kind of consideration applies in this case. The Commission needs the power to investigate and to uncover malpractices. If it is to be useful and if it is to deal with criminal proceedings under this Act, the agency which must be able to get at the truth of the matters needs to be able to pursue these matters. Where there are criminal proceedings under the Act, that information ought to be available. That is the stand which Senator Greenwood took in relation to the legislation which he introduced. We have had representations from all sectors. Our clause is gentler than his because it deals with corporations only. We are restricting it to corporations. We are excluding the natural persons such as directors or officers because we are relying upon the power relating to corporations. We are saying that the engines and the instruments ought to be able to be proceeded upon. The principle in the previous legislation was proper and necessary, and it ought to remain. However, we are omitting the natural persons and applying this clause only to corporations.

The Opposition is trying to hamstring the Commission. The information will have to be dug out. That is clear. I do not think even Senator Greenwood disputes that the Commission should have the power to require the information. He is saying that nothing can be done about it, even when it is evident that the corporation has been engaged in contravention of the enactment. We suggest, with respect, that in the light of the experience of everybody who has had anything to do with this field of affairs, the Opposition is trying to render the Commission and its powers nugatory by saying that the legislation will be there but in practice it will be unworkable. Corporations would be able to do what they like because even when the malpractices were uncovered and the injuries, not to some private person but against the whole community, were uncovered the information could not be used in proceedings even against the corporation. We are exempting the natural persons, although Senator Greenwood saw fit to expose them to the threat of prosecution and to the use of the information against them. Now Senator Greenwood says: 'Do not do what I did, do as I say'. He does not want the information to be used against corporations.

We submit, with respect, that the clause is a sensible and a fair one, except that probably individuals ought to have been included. However, we have seen fit to omit individuals and to leave only the corporations.

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