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Thursday, 15 August 1974
Page: 1006

Senator MURPHY (New South WalesAttorneyGeneral) - As has already been indicated, the Opposition amendment to this clause gave cause for concern inasmuch as it appeared to reduce the effective operation of sub-clauses (3) and (4). On examination of the drafting of the amendment it has appeared that the cause for this concern is the use of the words in relation to'. Those are rather loose words and they have caused some apprehension that the amendment might operate so as to provide an intended exemption for a body corporate dealing with an unrelated person and requiring that person to restrict other dealings that he has to a subsidiary of the body corporate. In the form in which it has been proposed the amendment would probably do this because it exempts conduct of the body corporate 'to or in relation to '. It is subsidiary. Presumably the intention behind the amendment was to exempt an exclusive dealing restriction that a corporation imposed on its own subsidiary.

An amendment that did no more than that would be unobjectionable but the Government could not agree to an amendment that permitted a corporation to impose an exclusive dealing restriction on a third party, requiring that party to deal with a corporation subsidiary. Yesterday I gave an example of that. Parliamentary Counsel has now redrafted the proposed amendment to ensure that the exemption is kept within the acceptable limits I have mentioned. Last night when the Opposition amendment was being discussed by the Committee, Senator Greenwood referred to the fact that a similar provision already existed in relation to clause 45. He asked what different considerations existed in relation to clause 47. The answer is that the provision in clause 45 (6) is expressly confined to contracts, etc., the only parties to which are related bodies. If some other person is a party to the contract the exemption is inapplicable. That is the sort of position which should exist under any clause inserted in relation to clause 47. That would obtain under the provision which I would be prepared to move and which has been circulated. I move:

At the end of the clause add the following sub-clause:

(6)   This section does not apply with respect to any conduct engaged in by a body corporate by way of restricting dealings by another body corporate if those bodies corporate arc related to each other'.

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