Page 3392 - Week 13 - Tuesday, 24 November 1992
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If there were an intention to have a policy change from the Trade Practices Act, I would be happy to entertain it. Mr Humphries has made the point repeatedly that we should not regard ourselves as locked into the Commonwealth model. I accept that. We may want to differ from it, and if we wanted to differ on policy, we would accept amendments. But where our policy is the same as the Commonwealth's, it makes eminent good sense to use the same wording. A similar wording has been used in a number of State Acts. The relevant provision of the New South Wales legislation, which is section 55, operates across the border; in the Commonwealth Act it is section 80. Business people who either take an interest themselves or go to their legal advisers for advice on this clause as we have drafted it will go to books such as Mr Miller's and equivalent texts and will get advice on the meaning of the clause based on the Commonwealth model and considered by the courts. Simply to change the wording, I would suggest to the chamber, is not a positive step.
I have previously made the offer privately, but I will make it on the record to any members who have problems with the drafting of clauses: I am more than happy to provide my officers to give them briefings privately in their rooms about why we are adopting a particular drafting style. We have shown in the past that we are prepared to accept considered amendments by the Opposition or by Independents on policy issues; but, where you are simply quibbling about words, in this area of black letter law it is better to stick to a standard form which has been considered by the courts.
Amendments negatived.
Clause agreed to.
Clause 45 to 47, by leave, taken together, and agreed to.
Clause 48
MR STEVENSON (10.10): I move:
Page 31, omit subclauses (1) to (4), substitute the following subclauses:
"(1) Where, in proceedings under this part in respect of conduct engaged in by a person or a body corporate, being conduct in relation to which Part II applies, it is necessary to establish the state of mind of the person or body corporate, it is sufficient to show that a person, director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind.
"(2) Any conduct engaged in on behalf of a person or a body corporate -
(a) by a person, director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or
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