Page 2885 - Week 11 - Thursday, 22 October 1992
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MR HUMPHRIES (11.23): Madam Speaker, I will ignore the irrelevant diatribe about what Federal colleagues are supposed to be saying or not saying. But I will say, Madam Speaker, that I am a little bit concerned about the Government's inability to explain something here that is really quite fundamental. The Minister says that subclause 13(3) is in the Bill because it is in the Federal Act. But he has not explained yet why it is in the Federal Act, and that is an important point I want to make.
If we were to pass legislation which was going to be a part of a uniform scheme across the whole of Australia, yes, I would accept the case for not making any changes to the legislation and leaving it intact as we inherited it from the Commonwealth. But the Minister has made it clear in his in-principle speech that that is not what he is going to do. This is going to be patriated trade practices legislation. It is going to be legislation which is peculiar to the ACT, which under this arrangement is now indigenous to the ACT, and which we will be amending. It therefore opens up, it seems to me, the whole question of whether any particular clause in the legislation is appropriate. We therefore have to ask: What is the reason? What is the purpose for each particular provision? I think we ought to know why subclause (3) is there. Why do we need to restate an item to protect a person charged under this Act when surely there would be a presumption in their favour, even without it being stated in the legislation?
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (11.24): Madam Speaker, the reasoning here, which is in a memorandum which Mr Humphries was given a copy of or was shown this morning - I think you did take a copy of that - - -
Mr Humphries: Yes, I did, thank you.
MR CONNOLLY: It does set it out.
Mr Stevenson: I raise a point of order, Madam Speaker. I believe that this is the third time that Mr Connolly has spoken. I am happy to agree with leave being given.
MR CONNOLLY: I seek leave. I am sorry, Mr Stevenson.
MADAM SPEAKER: Mr Connolly, you do not need leave. He is the Minister in charge, Mr Stevenson. Just to clear up any confusion, I point out that the Minister in charge may speak as often as he likes; other members need leave to speak more than twice. It was a fine point of order, but it is not upheld.
MR CONNOLLY: The subclause provides that persons will not be taken to have been engaged in unconscionable conduct by reason only that they have brought legal proceedings or referred a claim to arbitration. This is very much protecting business. It is saying that, merely because business is litigating, the litigation itself does not form evidence of engaging in unconscionable or anti-competitive behaviour. You could stretch a long bow and say that because trader A was suing trader B they were trying to force trader B out of the marketplace, and therefore engaging in unconscionable conduct. We are saying that the mere fact of bringing litigation does not of itself give rise to an action. You would have to go much further than that mere fact. That is the reason for the provision. It has been in the Federal Act since 1986. If the provision were removed, it could potentially disadvantage business. From here on I will give specific explanations. I think we have dealt with the general political points.
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