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Wednesday, 14 August 1974
Page: 935

Senator GREENWOOD (Victoria) - The Opposition also seeks to move an amendment to clause 49, which introduces a concept of price discrimination. One could say that to make the concept of price discrimination unlawful in the way in which the BUI does is to bring in not only a completely new concept with which everyone engaged in commerce in this country now would have to live but also it is to introduce one of the most difficult concepts with which American trade practices law has ever had to deal. The Robinson-Patman amendments were introduced in the late 1930s in the United States of America. If any part of the American trade practices law has been the subject of court decisions in which the clarity which was expected has never been forthcoming, it has been these Robinson-Patman amendments. I do not think that the legislation which the Government has brought before us in any way eases that difficulty which the Americans have experienced. We in the Opposition have had many submissions made to us from people who are fearful of how these provisions will operate. The Opposition has 2 amendments to this clause. Both are only small amendments but we hope that they will be acceptable to the Senate because we think that they wil improve the operation of the legislation.

I deal now only with the first amendment. It relates to clause 49 ( 1 ), which states:

A corporation shall not, in trade or commerce, directly or indirectly discriminate between purchasers of goods of like grade and quality in relation to-

(   a ) the prices charged for the goods;

(   b ) any discounts, allowances, rebates or credits given in relation to the supply of the goods;

(c)   the provision of services or facilities in respect of the goods; or

(d)   the making of payments for services or facilities provided in respect of the goods, if the discrimination is of such magnitude or is of such a recurring or systematic character that it is likely to have the effect of substantially lessening competition in a market for goods, being a market in which the corporation supplies, or those persons supply, goods.

At one extreme there is an obvious case where that sort of legislation ought to apply. That is the case in which a company entices or induces a producer or manufacturer of goods to build up such a market because the orders are there and thus there is an occasion for increased production. When such an action would make that manufacturer so dependent upon the person to whom he is selling that he is completely in the grip of that purchaser obviously that is an area that needs to be remedied. I think this legislation goes a long way towards resolving that situation. I have not any doubt about that situation, but it is uncertain as to how much further it goes, because there ought to be on the part of a purchaser of goods and a supplier of goods an ability to work out what is a reasonable bargain between them. If there is a purchaser who wants to go to a supplier to bargain on the basis that he can get goods more cheaply because he wants to sell them more cheaply than other sellers, then he ought not to be prohibited from doing that just because he is in business on a big scale and so might be alleged to have control of the market or be assumed to be in control of the market and thereby be inhibited from making the sort of bargain by means of which he can give better service and cheaper service to consumers who depend on him. This is the constant problem which this sort of legislation is producing. It is the problem which we on the Opposition side have seen and which we will insist on pointing out so long as the Bill is before this chamber. It seems that if you are going to have a situation where there is doubt as to whether or not a company is offending against these provisions, at least make the provisions apply against the person only when he offends the provisions knowingly.

Senator Poyser - Ah!

Senator GREENWOOD - It is all right for Senator Poyser to interject. He would have a situation where it would be an offence if there were intent to avoid the provisions of this legislation or if there were no intent involved. What would happen if we came down with a heavy penalty of $250,000. 1 can imagine the shrieks and screams that would come from Senator Poyser if it were ever suggested that a union might be subjected to a penalty of $250,000 if it breached an award even though it did not intend to do so. I would think I might be shrieking and screaming with him. But we do not hear shrieks coming from Senator Poyser when one of the corporations in a city capital inadvertently happens to breach the provisions of the law. All I ask is that this provision be looked at on the basis that it introduces a concept which we believe is valuable. We propose that in sub-clause ( 1 ) the words 'directly or indirectly' be left out and that in their place there be substituted the word 'knowingly'.

Senator Poyser - You would water it down.

Senator GREENWOOD - I am interested in Senator Poyser 's approach. He is one of the few members of the Labor Party prepared to come into the chamber and support the AttorneyGeneral on this trade practices legislation. I just wonder whether the Attorney-General is altogether enthusiastic about the support he is getting from Senator Poyser. If it came from Senator James McClelland I am sure the Attorney-General would welcome it, but Senator James McClelland has been singularly quiet on this matter. But Senator Poyser comes in and simply says 'Ah! ' as though when you introduce a concept that a person should only be liable for offences or for conduct in which he knowingly engages that is in some way watering it down. I do not think it is. I think it is a concept which has a general and proper application in all law, that a person should only be responsible and subject to penalties for those activities which he engages in knowingly.

Senator James McClelland (NEW SOUTH WALES) - That is implicit in the Bill.

Senator GREENWOOD - No, it is not implicit in the Bill, if I may reply to Senator James McClelland, because the words 'directly or indirectly' appear in the Bill. The words 'directly or indirectly' indicate something less than knowingly is requisite.

Senator James McClelland (NEW SOUTH WALES) - That is the way the courts would interpret it.

Senator GREENWOOD - I wish I had the honourable senator's confidence that the courts would interpret it that way.

Senator James McClelland (NEW SOUTH WALES) - You know the doctrine of mens rea as well as anybody does.

Senator GREENWOOD - You cannot have the doctrine of mens rea- I say this with all respect to the honourable senator- when you have a concept of directly or indirectly as part of the ingredients of the offence. What we propose is that the words 'directly or indirectly' be left out and that the word 'knowingly' be put in their place. Then it would mean that a corporation shall not be liable unless, in any trade or commerce, it knowingly discriminates between purchasers of goods of like grade and quality. In those circumstances we think it introduces not only a safeguard which will at least protect the innocent companies but it will, at the same time, ensure that there will not be such an inhibition of company activity that persons with whom we are really concerned, the consumers and purchasers of goods, are going to find in so many ways that their supplies are not as good as they would like them to be but the prices are a little higher because people are a little cautious about what they can do and what they cannot do. We should not so inhibit business activity that the persons for whom business activity is primarily carried onthat is the persons who purchase the goods or services- are likely to be the ones to be deprived. 1 move:

In sub-clause ( I ) omit 'directly or indirectly', substitute knowingly'.

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