Title TRADE PRACTICES BILL 1974
Database Senate Hansard
Date 15-08-1974
Source Senate
Parl No. 29
Electorate Tasmania
Page 973
Presenter
Status Final
Speaker EVERETT, Mervyn
System Id hansard80/hansards80/1974-08-15/0056


TRADE PRACTICES BILL 1974


Senator EVERETT (Tasmania) -The public must be puzzled at the attitude of the Opposition in this important sphere. The Opposition, in another place, here and publicly, has professed its support for this Bill. It has said that the provisions contained in Part V are sound. Senator Missen, when he spoke late on Tuesday night, extolled the provisions of the Bill generally. That is one attitude of the Opposition. The other attitude- it is the Opposition's practical attitude to this Bill with which we are concerned -is that it opposes every provision in Part V. As I understand the speeches that have been made, the Opposition bases its latter attitude mainly on the ground that there are State laws which deal with some of these matters. The simple fact is that the State and Territory laws are fragmented, lack uniformity and very obviously are the result of the response of State governments to ad hoc political pressures. They lack the essential thing in this area, that is, a national approach.

Reference has been made to some of the State laws. I suggest that if all the State laws, together with the laws of the Territories, were added together and examined, and if the strongest provisions in relation to every area of consumer protection were distilled out of those laws, it would be found that they would contain only a fraction of the strength of the protection that is afforded by this Bill. To illustrate that proposition one has only to look at clause 52 of the Bdi. I suggest that this is a provision which is not found in any existing State or Territory law. It is a provision which is completely general in its content, and it is a provision which would ensure in a general way protection for the consumer far beyond the protection that is afforded to him by the law of any State or Territory. It is stated in clause 52:

(   1 ) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive.

(2)   Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section ( 1 ).

In effect, that is a provision which outlaws practices which are inimical to the interests of consumers whether they are presently being practised or whenever they may be practised. No State has any such provision.

I turn to clause 55 which applies, because of the constitutional power of the Australian Parliament, to persons as well as to corporations. Clause 55 states:

A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.

I suggest that that clause transcends what is contained in any existing State or Territory legislation. I go further and say that many of the provisions contained in Part V, all of which the Opposition seeks to delete from the Bill, have no counterpart whatsoever in State or Territory legislation. Two outstanding examples of that proposition are to be found in clauses 62 and 63. Clause 62 deals with product safety standardsthis is a novel approach in Australia- and clause 63 deals with product information standards. One might have understood the Opposition's attitude if it had sought to delete some of the provisions of Part V but to retain provisions which were unique so far as Australian State and Territorial legislation were concerned. Those are 2 supreme examples. But the Opposition has not done that.

Senator Greenwoodreferred this morning to consumer protection bodies. I think that Victoria, the State which Senator Greenwood represents, was one of the first States to have a consumer protection body- its precise name escapes mewhich, I think, was established in 1964. But if honourable senators look at the reports of the various State consumer protection bodies they will see that over the years the complaint of the heads of those bodies has been the lack of effective power to take action. Essentially, they had been advisory bodies. The State Parliaments, for reasons that may have appeared good to them, have seen fit to withhold from the consumer protection bodies any grant of power that would permit them to function strongly and effectively in the interests of consumers. As I have said, basically they are advisory bodies. They appear just as children against the strong body of law that is created by Part V of this Bill which the Opposition seeks to delete.

I wish to repeat very briefly the call that I made on Tuesday for a reference of powers in this area from the States to the Australian Parliament. This call applies especially to matters which so importantly affect all Australians. It is not always the Australian Government which should take the initiative in these matters. Statesmanship equally should emanate from the State governments as well as from the Australian Government. I see tremendous advantages in a reference of powers which I believe would mean that there is no validity whatsoever in the Opposition criticism. In the first place, it would permit this legislation, by subsequent amendment, to be extended to firms and to individuals and to make it completely comprehensive, including, of course, corporations as the Australian Parliament may now legislate. Secondly, it would produce uniformity. Where is the logic for a particular act to be an offence in one State but not an offence in another. Surely manufacturers, retailers and wholesalers would be advantaged throughout Australia if their obligations were the same irrespective of the State or Territory in which they carried on business. Thirdly, the advantage of a reference of powers would be to obviate any legal constitutional difficulties which, as has been indicated, may arise.

It could be said: 'Why does the Australian Government not take the initiative?' The simple fact is that the Australian Government has taken the initiative in many areas to endeavour to get a national approach to a national problem. I have already referred to what I termed the fiasco which took place in Perth- and if I may correct the year I gave-on 2 July 1973, not 1972. That was an occasion when the present Australian Attorney-General was endeavouring to obtain the agreement of the States to a national approach to the administration of company law on a national basis. He was rebuffed. The Liberal States spent the next few months devising some way to circumvent the intention that the Australian Attorney-General then declared he had of bringing to this Parliament a national companies code.

The result of that deliberation by the Liberal States was the emergence by January of this year of a very curious body indeed. It had the high sounding title of the Interstate Corporate Affairs Commission. It was a grouping of Liberal States to endeavour, as I have said, to circumvent national legislation. A perusal of its proposed charter shows how futile it would have been. It was to be non-executive in nature. Its principal functions were to consist of establishing the principles to be followed by existing administrations and supervising the standards of administration in the participating jurisdictions in a number of matters. In other words, it was a club constituted by State Liberal governments to perpetuate, so far as company law was concerned, the administrative scandals which were so quickly subsequently revealed by the report of the Senate Select Committee on Securities and Exchange. There are other experiences which the Australian Government has had in a short time. I believe it is the obligation of State governments to offer a lead in this respect and offer the Commonwealth powers that would produce the beneficial results I have mentioned.

The most curious aspect of this amendment whereby the Opposition seeks to delete in toto the consumer protection provisions of this Bill is what is its motivation. I would like to know from the Opposition who is clamouring for the deletion of this Part because the Opposition concedes that it is good law. I spoke in the lobbies of this place yesterday afternoon with a leading representative of a quite large Australian manufacturing company which I will not name. The company, apart from being a substantial employer of labour, conducts business in all States and also overseas. The comment of that gentleman to me was: 'Why can we not have the Bill? Industry wants this Bill as it is. We want it'. There is no doubt as to what is the attitude of the consumers. I am perplexed as to the principles upon which the Opposition seeks to delete these provisions and I am also perplexed by its motivation. It appears to me that the Opposition has no base on this issue and that it is opposing Government legislation for the sake of opposing it. In doing so, the Opposition once again demonstrates its passion to obstruct and to deny the people of Australia beneficial legislation. I would finally observe that it appears to me that the Opposition has become drowned by its own hidebound conservatism.







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