Page 2902 - Week 11 - Thursday, 22 October 1992
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a similar nature, the aggregate fine for those offences is not to exceed the maximum penalty for one such offence. I talk not about that. That is fine. But subclause (3) duplicates subclause (2), except for the situation set out in my amendment. If we adopt my amendment, subclause (3) becomes unnecessary. Why should we have subclauses duplicating other subclauses, apart from tiny matters that do nothing to make the matter more understandable but just add to the size of the Bill? This Bill is 38 pages long. If we can abbreviate it, let us abbreviate it.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (12.27): Madam Speaker, these penal provisions do mirror the Commonwealth Trade Practices Act provisions. Mr Stevenson laughs, but there are some particular reasons why subclauses (2) and (3) are there. Subclauses (2) and (3), which he wants to bring together, were inserted in section 79 of the Commonwealth Act in 1977 in order to overcome some problems that had become apparent as a result of a prosecution, Hartnell v. Sharp Corporation of Australia Ltd, 1975, 5 ALR, 493, where the court imposed multiple penalties for the same offence. It became apparent then that, as the section stood, it would be theoretically possible, in the case of an ad in a magazine, to bring an action in relation to each separate publication of a magazine where there is a misleading advertisement. That could run into hundreds of thousands of potential prosecutions. So, the separate structuring of the penal provisions in clause 41 mirrors section 79 of the Commonwealth Act.
It is not a simple provision, Mr Stevenson. I will take that point. But your attempt to simplify it, I would suggest, would leave a court somewhat confused and open the possibility of some multiple prosecutions which, as it happened, a Commonwealth Liberal government sought to prevent in its amendments in 1977. Your general point that this is not a simple provision is accepted, but it is a provision which has been the subject of extensive court attention. There are extensive references as to how this section is interpreted in standard texts, such as Miller on the Trade Practices Act, and it does not create the confusion that you suggest. On the contrary, when you go into the history of it, it was designed to avoid some confusion, although, as you say, it may appear as though it in some sense duplicates. It does refer to similar provisions, but it sets out very specific circumstances which a court needs to take into account in sentencing.
MR STEVENSON (12.29): Mr Connolly refers to mirroring other legislation. I would just like to mention what Professor R.D. Eagleson said in a paper entitled "Efficiency in Legal Drafting". In 1988, in "Essays on Legislative Drafting", he said:
As things stand, the Corporations Law is not even intelligible to the average intelligent specialised corporate lawyer.
This is really the crux of what I talk about. There are many cases where this Bill before the Assembly cannot be agreed upon by different lawyers. The point I make is that the vast majority of it cannot be understood by those people it targets - businesses. When we have a situation in Australia where laws cannot be understood by the people they affect, sooner or later we will reach the stage where somebody may say to a judge, "I did not understand", and the judge will say, "If that is the case, you are not guilty". Corporate lawyers even have trouble working out what it means as well.
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