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Thursday, 15 August 1974
Page: 1005


Senator MURPHY (New South WalesAttorneyGeneral) -This is a new-found wisdom or philosophy on Senator Greenwood's part. I suppose the reason why there are these provisions is that this kind of legislation has to be worked out sensibly. One does not want wildcat prosecutions. It has been pointed out that there may be teething difficulties for a start, and one does not want trade and commerce interfered with in some capricious kind of way. There are prosecutions, and public officials and Ministers are vested with responsibility in this area. These people may change from time to dme, but they have a responsibility for seeing that the law is administered in a sensible fashion, and they are answerable. This is especially important in this area of the law touching trade and commerce and one would not want there to be capricious proceedings. It was for this reason that the former Government took the attitude and put into the law in this very area a provision which I will read to honourable senators. I think Senator Greenwood introduced, presented to this chamber, gained acceptance of and argued for this provision which is now in the existing law. I refer to section 164, and I notice that Senator Greenwood nods his head. But the honourable senator did not make any reference to the fact that what has been done here is following up -


Senator James McClelland (NEW SOUTH WALES) -Will the

Attorney-General read the section?


Senator MURPHY -Section 164 (5) states:

Proceedings before the Court in accordance with this section-

(a)   may be instituted by summons upon information: and

(   b ) shall not be instituted except with the consent in writing of the Attorney-General or of a person authorised by the Attorney-General, by writing under his hand, to give such consent.


Senator James McClelland (NEW SOUTH WALES) - This provision was passed when Senator Greenwood was the Attorney-General?


Senator MURPHY -Yes.- The section was agreed to on the basis that it was considered necessary to have such a provision in this area. It has been applied in certain other areas. It seemed to us to be a wise provision. It is the state of the law. Now that this legislation is being considered again Senator Greenwood says how terrible it is that we propose to follow and virtually to re-enact what is the existing law of the land and to continue with the same principle.

With respect, we think that Senator Greenwood has not shown a case. He said before that he was wrong on something. Is he saying that not only was he wrong on this matter but also that he sat silently and wrongly all through this time? Even after he ceased to be Attorney-General, he did not turn around and race in with an amendment and say: 'Let us change that law; I forgot to do it while I was in office'. He did not say that he would bring in a private member's Bill to alter this dreadful aspect of the law. No such thing was done by him. I think it would be wise, certainly during the period when this legislation is being ushered in- and I think that Senator Greenwood would accept this proposition- to provide that the proceedings ought to be with consent, otherwise there is a danger of some kind of capriciousness and so on. I think it is proper to have provisions such as this rather than endeavour to use what Senator Greenwood has referred to as an alternative. If this section were taken out of the Act I believe that somehow you would have to have a messy kind of intervention and taking over of proceedings by an AttorneyGeneral. Senator Greenwood thought that this was a better way to do it. But the present provision is not an unusual provision. Again we think it is a proper one.







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