Page 3391 - Week 13 - Tuesday, 24 November 1992
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FAIR TRADING BILL 1992
Detail Stage
Debate resumed from 22 October 1992.
Clauses 42 and 43, by leave, taken together, and agreed to.
Clause 44
MR STEVENSON (10.04), by leave: I move:
Page 29, line 32, subclause 44(5), after "conduct" insert the words" or requiring said person to do an act or thing".
Page 30, line 4, omit subclause (6).
Subclause (5) says that the court may issue an injunction - in other words, prohibit a person from doing something - even though the person has not done such an action previously and appears unlikely to do such an action in the future. This subclause simply duplicates subclause (6), except for the brief situation set out in my first amendment. If we adopt my amendment, subclause (6) becomes unnecessary. These are two of a number of amendments I have moved to try to do away with unnecessary words in the Bill.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.07): The Government will be opposing this. I think we have been through this debate on a number of occasions, but I will briefly restate it in respect of this clause. I and the Government have some sympathy with Mr Stevenson's proposition that legislation should be in as plain an English form as is possible, and we endeavour to do that. We indicated when this Bill was introduced that the explanatory memorandum in particular is something of a model of plain drafting and does set out in quite simple terms what the law is.
This Bill does refer in some areas to quite complex matters of commercial law. It is modelled on Commonwealth Trade Practices Act sections; clause 44, to which Mr Stevenson has moved his amendments, reflects in identical wording section 80 of the Commonwealth Trade Practices Act. The equivalence between this Bill and the Trade Practices Act is set out in the explanatory memorandum. That section of the Trade Practices Act, like many other sections of that Act, has been extensively litigated in the courts of Australia. A book I have referred to in the past by Russell Miller, who happens to be president of the Law Society of this Territory but is regarded as one of the pre-eminent trade practices lawyers in the country, sets out over extensive pages the decided cases on this clause.
There is a difference between the two subclauses. One refers to an injunction to prohibit a person from acting; the other refers to an injunction to require action. There is a difference in the wording. I accept Mr Stevenson's criticism that they are perhaps just lawyers' terms. They are quibbling, but they do make a difference. The courts have decided what those subclauses mean.
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