Page 3394 - Week 13 - Tuesday, 24 November 1992
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Subclause (2) states:
Without limiting the generality of section 44, the Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of Part II or on the application of the Director in accordance with subsection (3) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (7)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.
I ask the Attorney-General to explain the two subclauses.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (10.14): Madam Speaker, they are hardly a model of plain English drafting. Indeed, they are clauses that even the highly respected Russell Miller, to whom I previously referred, takes about six pages in extraordinarily small type to explain in his annotation to the Act. Simply stated, subclause 50(2) of our Bill replicates paragraph 87(1)(a) of the Commonwealth Act. The original subsection 87(1) was intended to be a broad power for alternative remedies. There were some problems in the way that was being interpreted by the courts. In 1977, the Commonwealth Government - I note for members opposite that it happened to be a Liberal government at the time - in response to some restrictive interpretations, put in the second subsection to again direct the courts that the power to provide additional remedies was intended to be expansive. Mr Miller provides about 14 or 15 cases in his explanation as to how that has been interpreted.
Again, if we were starting from scratch, doing legislation purely for this Territory, I am sure that we could do it in a more simple manner; but we are picking up the policy intention of the Commonwealth Act as it has been replicated in the States. The intention is to be as broad as possible in alternative remedies. It does make more sense to pick up the identical language, because courts unfortunately have a tendency, if you differ in the specifics of the language, to assume that you are differing in your policy intent. That would be unwise in this area of complex commercial law.
MR CORNWELL (10.16): Madam Speaker, I ask the Attorney: If we have borrowed from the Commonwealth, is it the intention of the Commonwealth to make this clearer at some point in the future, as far as you are aware, and place it into plain English? It seems to me totally absurd that we have a Fair Trading Bill which we trust people will abide by but which you cannot understand. This is an absurdity. You cannot expect ordinary people out there to understand the law or, may I say even more strongly, to have any respect for law they cannot understand.
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