146.

Acts of the Commonwealth Parliament up to 1973 had been

put on the computer data base. This would be expanded

to include the Annotated Constitution, other Commonwealth

legislation, case law.and State Statutes (with the agreement

of the States).

Mr Ellicott said that the new system would enable

the Department's lawyers to obtain relevant information

from the computer by feeding in appropriate key words and

phrases. .

The information would be viewed on a video screen

and relevant references selected and printed immediately.

"The introduction of this new system will proÂ­

vide a valuable tool for legal research and will be a

great aid for the legal draftsman", he said.

The Attorney-General said that the system would

be based on the STATUS programs developed by the United

Kingdom Atomic Research Establishment at Harwell.

As the system was developed, access would be

given to States and interested bodies, subject to

appropriate security and financial arrangements..

Mr Ellicott said that the States and the Law

Council of Australia had been looking to the Commonwealth

for initiative in the computerization of the Law and conÂ­

sultation with them would continue through an existing

Advisory Committee.

Canberra  27 June 1977  36/77

COMMERCIAL LAW ASSOCIATION SEMINAR ON TRADE  ______________ PRACTICES__________ ; __________

Address by the Attorney-General,  Mr R.J. Ellicott, Q.C.

Mr Chairman,  Mr Bannerman, Ladi.es and Gentlemen:

I was very pleased to receive through Mr Peter

Trumble the invitation by the Commercial Law Association

asking me to open this Seminar.

It is very important that the professions and

business community generally should examine in detail the

legal and technical implications of the amendments to the

Act which have recently been passed by the Parliament.

147.

It is a matter of commendation that the Commercial Law

Association has organised this Seminar on the very relÂ­

evant topics which appear on the agenda so soon after the

enactment of the amendments.

Regulation of business by legislation requires

the closest consultation between Government and business.

This the Government has tried to achieve. I would like to

thank the Commercial Law Association on behalf of the GovÂ­

ernment for the assistance it has given in connection with

its legislative proposals in the commercial field. In the

case of the work of my own Department, members of the

Association have been more than helpful in providing useÂ­

ful and practical comment. During the period that the

amendments to the Trade Practices Act were under considerÂ­

ation members of the Association were equally helpful in

contributing their views. I know that my colleague., the

Minister for Business and Consumer Affairs is extremely

grateful.

I would first like to say a word about the

background to the amendments.

In their pre-election policy statement the

Coalition parties made clear that they were committed to

effective trade practices legislation. Concern was felt

that the operation of the Act was in some respects inÂ­

effective - that it may have involved excessive regulation

and interference with business. Accordingly, this policy

statement indicated that, if returned, the Government would

carry out a review of the legislation.

The Trade Practices Review Committee (the Swanson

Committee) was established on 1 April 1976. Its purpose

is usefully indicated by the first term of reference. The

Committee was asked to- consider:Â­

. whether the Act has achieved its intended

purpose of the development and maintenance .

of the free and fair market and whether .

Australian consumers are benefiting from

the Act;

. whether the Act is causing unintended

difficulty or unnecessary costs to the

148.

Australian public including Australian

.  business; .

. whether in the current economic circumÂ­

stances in Australia the operation of

the Act inhibits or is likely to inhibit

economic recovery contrary to the objectÂ­

ives of the Act.

The Committee completed its report on 20 August,

last year. It had sat for a period of four months and

received submissions from over 230 companies and individuals.

Following the tabling of the report in Parliament on 30

August a large volume of additional submissions were .

received on the recommendations contained in the Committee's,

report. The Government gave close consideration to these

submissions. It then introduced a Bill into the Parliament

on 8 December. That Bill was introduced in order to obtain

public comment. It was not expected that the provisions,

of that Bill would be passed into law without further amendÂ­

ment. The extended period from December to March enabled

the professions and the business community to assess the

value of the changes proposed in the Bill. A large numÂ­

ber of further submissions and comments were received.

These were also given close consideration. A further

Bill was introduced in March of this year. Further

submissions and comments were received and more changes

were made to that Bill, before its final enactment a

few weeks ago. There has thus been prolonged consulÂ­

tation in regard to the measure.

I also wish to make some brief comments upon the

Government's commitment to effective Trade Practices

Legislation. It flows from this Government's belief in

a free enterprise economy. It is clear enough that a

number of. factors in the real world disturb the ideal of

freely competing producers engaged in satisfying an

informed demand based upon free choice. Apart from agreeÂ­

ments by producers not to compete, producers may direct

their endeavour not to improved business efficiency, but

to impeding or destroying their competitors'  ability to

compete - as for example, by boycott. I need not elaborate.

149.

What we are endeavouring to do and what we mean by effectÂ­

ive Trade Practices Legislation is the creation of a frame-.

work which will minimise these disturbances to true

competition. Â·

.  What degree of regulation is necessary will depend

from time to time upon the extent to which business engages

in restrictive practices. If the rules of the game - or

more precisely the rules of competition are flouted - The

Government will intervene. That carries with it the obÂ­

vious danger that enterprise will be destroyed or seriously

impaired by excessive regulation. And so it is a delicate

balance. Effective trade practices legislation is legisÂ­

lation which best achieves that balance. .

It is against that background that I turn to cer- .

tain features of the amendments.

The changes which are embodied in the legisÂ­

lation constitute very major changes to the operation of

the legislation. The procedure of clearance is abolished,

very significant changes are made to section 47, major

changes are made to the scope and operation of the merger

provisions of the Act, public hearings are abolished -

this is to name but a few of the very significant changes

which have been embodied in the amendment Bill.

The Government has also decided that, with one '

exception which is not material, its commercial operations

should be subject to the same restraints imposed by the

Act as apply to the like operations of private enterprise.

Clearly, if the object is to provide a regulative frameÂ­

work in which competitors are to have equal opportunities

it is contradictory that any should have a preferential

advantage. Accordingly, the Act embodies this concept

which is surely sound in principle. In addition the

Government has adopted the practice that all its advertÂ­

ising should conform to the standards of the Trade Practices

Act. It is hoped that in these respects State Governments

will be encouraged to take a similar course.

Section 45D represents a new feature of the

legislation. It has attracted much comment and criticism.

It will be noted that there has been a change in approach

150.

from the provision in the December Bill. Section 45D is

not now confined, to the action of employees but covers

the conduct of any person. Primary boycotts by employees

are not dealt with by the Act. But the Government believes

quite strongly that the coercive effects of secondary

boycotts should be dealt with so that, as far as possible,

provisions of the Act should apply to both business and

employees alike. So far as employee secondary boycotts

are concerned, when employees are taking action for a

dominant purpose substantially related to the remuneration,

conditions of employment, termination of employment, hours

of work or working conditions of those employees, or fellow

employees of the same employer, the secondary boycott is not

prohibited.

Obviously the Government will also be watching

very closely the operation of section 45D. The section

has inherent complexities and the Government has an open

mind as to changes that may be necessary in the future in

order to give more precision to its operation. .

Another difference between the December Bill and

the Act is that Section 49, which prohibits price discrimÂ­

ination, has been retained.

As you are aware, section 49 has been a controÂ­

versial provision. As with the Robinson-Patman Act - upon

which it is based, despite some significant differences -

it has been contended that its effects are in fact antiÂ­

competitive. The Trade Practices Review Committee recommended

its repeal upon the basis that it had produced "such price

inflexibility that the detriment to the economy as a whole

from the operation of the section outweighs the assistance

which small business may have derived from it". I think

that we are all aware of the difficulties attaching to the

provision and no doubt they will be considered in detail

at this Seminar. Nevertheless, the essential thrust of

the provision is the need to guarantee the opportunity -

and I stress opportunity - of small business to compete

in the face of discriminatory pricing designed to deny

it that opportunity. In the light of the very strong

representations by small business,the provision has been

151.

retained. Nevertheless the Minister for Business and

Consumer Affairs has indicated that the operation of the

Section will be carefully monitored.

Mr Chairman, I mentioned at the outset the importÂ­

ance of this Seminar enabling these amendments to be more

clearly understood. In conclusion, I would wish to emphasize

that the Government will be very interested in the views

expressed. The endeavour to maintain a framework of comÂ­

petition is a complex and delicate matter. The difficulties

of Section 49 perhaps exemplify this. Revision of Trade

Practices Legislation will necessarily be a continuing

matter. .  Â·

The Government will therefore be greatly

interested in the comments made at this Seminar. I now

have much pleasure in declaring it open.

Melbourne  16 June 1977 36a/77 *

