Tuesday, 29 April 1986 The PRESIDENT (Senator the Hon. Douglas McClelland) took the chair at 2 p.m., and read prayers. The Clerk —Petitions have been lodged for presentation as follows: To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia showeth that whereas: 1. They are completely satisfied with the design of the existing Australian National flag. 2. They are aware it properly reflects the immutable characteristics of Australia, namely: (a) The Union Jack-itself the creation of 3 Christian crosses-represents the nation's historical origin, and the source of its language and law. (b) The Southern Cross on an azure blue background signifying its geographical location in this planet earth. (c) The large star depicting the advent of Federation in 1901. 3. They know the flag has been a source of inspiration to generations of Australians in peace and war. 4. They recall that millions of native-born Australians and newcomers to these shores from other parts of the world have become united under its proud symbolism. 5. They are certain that any change to the flag will produce division in the Australian community. Your petitioners therefore pray that your Honourable House will propose and pass a motion that ``the existing Australian national flag be changed only with the approval of the Nation as expressed in a Referendum''. And your petitioners as in duty bound will ever pray. by Senator Durack (from 688 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The Petition of the undersigned shows: That we urge you to oppose the Australian Bill of Rights Bill because: We get no legally enforceable rights under the Bill. The Bill does not guarantee vital rights such as the right not to belong to a trade union, the right to own private property and not be deprived of it without just compensation and the right of choice between Government and non-Government schools. The Bill gives Canberra extra powers to change our Federal system by the back door without a constitutional referendum. The Bill gives dangerous new powers to a Federal Government Commission. Your petitioners ask that the Senate, in Parliament assembled, should vote against the Bill of Rights, support Opposition amendments and seek a genuine public debate and a referendum on the Bill. And your petitioners as in duty bound will ever pray. by Senator Durack (from 41 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia, respectfully showeth: That the proposed Australian Bill of Rights Bill 1985 will endanger the Federal system in Australia, the State and Federal criminal justice systems, the State and Federal Police Force, the State and Federal education systems, the independence of the churches and religious associations, marriage and the family, children, the unborn, the handicapped, the aged and the infirm, employer and employee relationships and Australian society generally. Your petitioners therefore humbly pray: That your Honourable House defer debate on the Bill for twelve months and circulate the Bill for twelve months for the widest possible debate, scrutiny and discussion. And your petitioners as in duty bound will ever pray. by Senator Peter Baume (from 41 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned shows: That the Hawke Government should; pass on the full benefit of lower international oil prices on 1 March 1986; not increase or extend fuel taxes; and maintain its tax cut commitments. Your petitioners humbly pray that the Hawke Government honour its commitment to the Import Parity Pricing policy. And your petitioners as in duty bound will ever pray. by Senator Durack (from 1,520 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned shows: That the Bill of Rights and the Human Rights and Equal Opportunity Bill 1. Offer nothing more than is already available under law. 2. deny some Human Rights and do not include others. 3. give dangerously wide powers to an unelected body, and 4. Could cause far more damage than they could possibly cure. Your petitioners request that the Senate should completely reject the Bill of Rights and the Human Rights and Equal Opportunities Bill. And your petitioners as in duty bound will ever pray. by Senator Peter Baume (from 108 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth: That the Australian Bill of Rights will do nothing to advance the rights of Australians, because it is dangerously ambiguous and will cause confusion within the legal system: it endangers our Federal system; and, it is to be administered in an authoritarian manner inconsistent with the present legal rights of all Australians. Your petitioners therefore pray: That the Senate rejects the Australian Bill of Rights Bill and all cognate Bills. And your petitioners as in duty bound will ever pray. by Senator Jessop (from 77 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned citizens of Australia respectfully showeth: That we oppose utterly the proposed Bill of Rights because this Bill will Restrict our rights to those listed in the Bill Transfer to government powers not given nor intended to be given by the Constitution Threaten our rights by making them subject to the will of this or any future Government Turn the Human Rights Commission into a political Star Chamber with unjustifiable power Abrogate Common Law and common liberty Set the State above the individual We the undersigned believe in democracy and freedom and earnestly entreat you to recognise that this Bill will undermine the fundamental basis of these. Your petitioners therefore humbly pray that the Senate in Parliament assembled should reject the Bill of Rights. And your petitioners as in duty bound will ever pray. by Senator Sheil (from 325 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth: That we deplore the proposed Bill of Rights because it adversely affects areas of the liberty and freedom of Australians. It will operate against: The States and our Federal system of Government Criminal Justice The Police Education Families Employer/Employee relations It will remove the power of the people through Parliament, by giving power to a new more powerful Human Rights Commission which is not elected, but can act as a Star Chamber. We do most earnestly wish to keep our system of Common Law. Your petitioners therefore humbly pray that the Senate in Parliament assembled should reject this Bill. And your petitioners as in duty bound will ever pray. by Senator Sheil (from 100 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of certain citizens of South Australia respectfully showeth: That all legitimate business expenses incurred in earning or producing assessable income should be allowable deductions. That the proposed Capital Gains Tax is an unwarranted burden on the rural sector, which will severely affect its long-term viability. That the delay by the Government in introducing the legislation into Parliament is causing confusion and hindering farmers in the organisation of their affairs. Your petitioners humbly pray that the Government introduces the Capital Gains Tax legislation without delay and that the Australian Democrats join with the Opposition to defeat the proposed legislation. And your petitioners as in duty bound will ever pray. by Senators Chaney (from 24 citizens), Kilgariff (from 20 citizens) and Messner (from 61 citizens). Petitions received. Senator MICHAEL BAUME(New South Wales) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) notes that Australia's inflation rate as measured by the Consumer Price Index for the 12 months to March 1986 has risen to 9.2 per cent, of which less than 2 per cent represented the direct impact of devaluation of the Australian dollar; (b) expresses its concern that Australia's inflation is now at its worst level relative to the average of the Organisation for Economic Co-operation and Development (OECD) nations for a quarter of a century, being 2.4 times the OECD average of 3.8 per cent and that even if the direct impact of devaluation were excluded, our inflation rate would still be almost double that of the OECD; and (c) calls on the Federal Government to take urgent action to reduce Australia's excessive inflation rate relative to our trading competitors, by significantly cutting the present record level of Goverment spending in a mini-budget and thereby placing Australia's best interest ahead of its concern over internal Australian Labor Party (ALP) problems likey to emerge at the May ALP National Conference. Senator COONEY(Victoria) —I give notice that, 11 sitting days after today, I shall move: That the determination under section 58 of the Defence Act 1903, as contained in Determination No. 8 of 1986 and made under the Defence Act 1903, be disallowed. Senator VALLENTINE(Western Australia) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) notes with concern the news of a serious nuclear accident in the Ukraine on 28 April; (b) understands that it must be a serious accident because the radiation was monitored as far away as Scandinavia and the Soviet Government quickly acknowledged the accident, which is most unusual for a Government which normally never acknowledges any kind of accident; (c) recalls an earlier nuclear accident in the Soviet Union in 1958 at Kyshtym in the Urals which devastated a wide region that is still contaminated today and which has never been acknowledged by the Soviet Government; (d) notes that the Soviet accident follows other serious accidents and leakages in the nuclear power program of countries such as the United States, the United Kingdom, France and Japan; (e) believes that nuclear power programs should be phased out and replaced by serious conservation efforts and renewable energy sources along with the cleaning up of coal-fired power stations and the development of small-scale hydro-electric projects; (f) supports the call by safe energy groups in Australia to end Australia's involvement in the mining and export of uranium and to leave uranium in the ground. Senator JONES(Queensland) —I give notice that, on the next day of sitting, I shall move: That the Senate, noting that- (a) at the beginning of April 1986, 19 key economic indicators identified by leading economists from data provided by reliable sources, notably the Australian Bureau of Statistics, showed Queensland with the worst performance in 6, the second worst in 5, and below the Australian average in no less than 14 indicators; and (b) despite deliberate manipulation of figures by influential National Party members in an attempt to show otherwise, Queensland's performance in job creation in the 2 years from March 1984 was the worst in any State, condemns the National Party in Queensland for its pathetic economic mismanagement which continues to drag down the rest of Australia. Senator COONEY(Victoria) —I give notice that, 11 sitting days after today, I shall move: That the Fisheries Notice entitled `Prohibition Relating to Boats in the Northern Prawn Fishery', as contained in Fisheries Notice No. 158 and made on 13 February 1986 under the Fisheries Act 1952, be disallowed. Senator COONEY(Victoria) —I give notice that, 11 sitting days after today, I shall move: That the Fisheries Notice entitled `Prohibition Relating to the Taking of Prawns off Northern Australia', as contained in Fisheries Notice No. 160 and made on 17 February 1986 under the Fisheries Act 1952, be disallowed. Senator COONEY(Victoria) —I give notice that, 11 sitting days after today, I shall move: That the Northern Prawn Fishery Management Plan, as contained in Plan of Management No. 3-Northern Prawn Fishery and made on 13 February 1986 under the Fisheries Act 1952, be disallowed. I seek leave to incorporate in Hansard a short statement relating to the Regulations and Ordinances Committee's decision to give these notices of motion. Leave granted. The statement read as follows- Mr President, These instruments of delegated legislation are being studied by the Committee because they appear to be either improperly drafted (Fisheries Notice No. 158); are unusually retrospective in operation (Fisheries Notice No. 160, Northern Prawn Management Fishery Plan and Defence Determination No. 8); do not contain provisions allowing for a right of review on the merits (Fisheries Notice No. 160, Northern Prawn Management Fishery Plan); or appear improperly to fetter an important ministerial discretion conferred by Act of Parliament. The Committee is corresponding with the Minister for Primary Industry and the Minister for Defence about these issues. As today is the last day on which notice of motion of disallowance can be given, I give such notice to protect the Committee's freedom of action in considering the questions. Barney Cooney, Chairman 29 April 1986 Senator GRIMES(Tasmania-Manager of Government Business) —I table papers in accordance with the list that has been circulated to honourable senators. With the concurrence of the Senate I incorporate the list in Hansard. Leave granted. The list read as follows- 1. Access and Equity in the Delivery of Federal Government Services and Programs to Migrants-Report-Together with the text of a statement by the Minister for Immigration and Ethnic Affairs relating to the report. 2. Australia's Plant Breeding Needs-Report. 3. Policy Co-ordination Unit Annual Report 1984-85-Department of Community Services. Senator CHANEY —My question is addressed to the Minister for Industry, Technology and Commerce. I refer to the answer he gave me on 15 April, when he said he would consider whether to make public his Department's estimate of the effect on the car industry of the proposed fringe benefits tax. In view of the mounting concern about possible job losses because of the tax-a concern which has been acknowledged by the Minister in his admittedly unsuccessful attempt to modify the tax-will he now make that information available? I also ask him to provide the Treasury calculations, reportedly now to be given to industry representatives, on the impact of the tax. Finally, does he agree that, if the tax proceeds as proposed, it will pose a real threat to the success of the Government's car plan? Senator BUTTON —I will direct to the Treasurer that part of Senator Chaney's question which relates to Treasury figures on the impact and other effects of the proposed fringe benefits tax and see whether that information is to be made available. My understanding is that it has not been made available to the car industry. Insofar as the information from my own Department is concerned, I intend to treat that information in the same way as the Treasury decides to treat its information. I will provide an answer on that as soon as possible. With regard to the general effect of the fringe benefits tax on the motor vehicle plan, I have always felt that it would have some adverse effect, but there are a variety of factors which will adversely affect the production of motor vehicles in Australia in the calendar year 1986. Many of those have been referred to before in the course of Question Time. They include the effects of a pull forward in demand into 1985, which was a record year for the car industry; some cyclical effects in the industry; the effect of the introduction of unleaded petrol, which has increased the price of motor vehicles; and the effect of the devaluation, which has affected the price of motor vehicles. All those factors must be taken into account, and it is difficult to isolate the precise effect of the fringe benefits tax separate from those other imposts on the car industry. Senator Chaney well knows that there has been a variety of public assessments of the effects of the fringe benefits tax. I think the more thoughtful of those has taken into account a variety of other factors; for example, the column by Chanticleer in today's Australian Financial Review refers to the estimates of a very respected organisation, Martec-independent consultants on the motor vehicle industry-which put some qualification on some of the wider claims which have been made. As I have said on a number of occasions, the precise effect of the fringe benefits tax on cars cannot be assessed, although added to other factors the effect is likely to be adverse when one looks at last year's record production in this industry. Senator COLSTON —My question, directed to the Minister representing the Minister for Transport, relates to the grounding of the 80,000-tonne Indian bulk carrier on Frederick Reef last Saturday. Can the Minister give assurances that all possible efforts are being made to ensure the safety of the 57 crew on board and to minimise potential damage to the Great Barrier Reef? Senator GIETZELT —The Senate will be aware of the extensive media coverage of the grounding of the 80,000-tonne Indian bulk carrier the Jhansi Ki Rani on Frederick Reef last Saturday, 26 April. The reef is about 300 miles east of Mackay and 90 miles east of the southern end of the Great Barrier Reef. The vessel was on a voyage to Japan carrying about 74,000 tonnes of coal from Newcastle with a crew of 57 persons on board. The Minister for Transport has advised me that the situation has stabilised, with the vessel firmly on the reef, and that the Department of Transport navigational aid vessel Cape Moreton is anchored in the lagoon off the reef ready to assist as required. Besides the possible salvage of the vessel which is currently being considered by the owners and the agents, the Department of Transport is active in a number of areas. It is considering the safety of the persons on the vessel and is monitoring the marine pollution threat from the vessel, if any. Senator Colston will be pleased to know that so far no pollution has been reported which would indicate any difficulties with the Great Barrier Reef. In addition the master has been asked to make a report on the circumstances of the accident in accordance with section 268 of the Navigation Act. The Department has already appointed an officer to investigate the accident fully and to see that every precaution is taken to ensure the protection of life, human as well as marine. Senator MESSNER —Is the Minister representing the Treasurer aware of criticism from the Minister for Housing, Mr West, about the continued allowance of negative gearing on share transactions? Does the Minister believe that the Government is being inconsistent by banning negative gearing on property investments, allowing it for share dealings and now allowing it to continue in respect of farm losses? Senator WALSH —I would have thought that even the Opposition would understand by now, since the Treasurer has repeated it innumerable times, the essential difference between negative gearing on rental property and negative gearing in other areas. The tax laws as they previously existed were being blatantly abused on the property rental market through negative gearing and the turnover of property before a taxable income was yielded. We had this round robin of property transactions through not necessarily a related group but a number of individuals or groups of individuals under which property was passed from hand to hand, negatively geared, and in such a way that it did not ever produce taxable income. That is a very important qualitative difference from negative gearing for company takeovers-whatever merit or demerit that might have. The round robin which I mentioned is a technique which is familiar to many members of the Liberal Party who used round robins with the connivance of the-- Senator Archer —Will you name one? Senator WALSH —Would I name one of the Liberal Party tax dodgers? I can name half the Western Australian Liberal Party finance committee. There were Ron Woss, Denis Horgan, Syd Corser, Hughes and two or three others whose names escape me at the moment. However, in total half the Western Australian Liberal Party finance committee sent companies to the bottom of the harbour. One of the techniques that was popular among tax evaders in the 1970s was the use of round robins. They organised a round robin of cheques in collaboration with, one might say, compliant banking institutions. Senator COLEMAN —My question is directed to the Minister representing the Minister for Defence. Is it true that, in addition to recent joint United States of America and Australian naval exercises, a further joint naval exercise is being held between Britain, the United States and Australia off the Western Australian coast near Fremantle in October this year? If it is true, when will the Commonwealth Government be advising State emergency services so that they in effect can be ready for that exercise? Does that not also mean that the risk to the people of Perth is greatly increased? Senator GARETH EVANS —I do not, for some reason, seem to have a brief on that particular matter. As it is obviously an issue concerning Senator Coleman, I will ensure that she gets a reply as soon as possible. Senator CHIPP —Because the Minister for Immigration and Ethnic Affairs has overtly refused to answer a question I want to ask, I now ask the Minister representing the Prime Minister the following question: Will the Government establish a Federal royal commission into nazi war criminals in Australia as called for by the New South Wales Parliament? Does the Government concede that a royal commission is the only way to establish fact from fiction and protect innocent people who may have been maligned? Finally, does the Government agree that, if the information presented in the Australian Broadcasting Corporation program Nazis in Australia is in any way correct, the Australian intelligence community must be held accountable for and exposed for its alleged inaccurate and misleading security reports on those persons? Senator BUTTON —I regret the allegation made against the Minister for Immigration and Ethnic Affairs. Senator Chipp —It is not an allegation. He said so this morning. He would not answer it. He said that it was for the Prime Minister to answer. Senator BUTTON —Well, I regret the allegation and his response. The Government has been monitoring recent accusations concerning the entry of alleged war criminals into Australia. Inquiries into records which may hold relevant information are being conducted by a number of Commonwealth Government agencies and are continuing. It is my understanding that no material has so far been revealed which would indicate that there was some systematic or organised program permitting war criminals to enter this country, either with or without the concurrence of the governments of the day. In these circumstances, it is not believed that there is sufficient justification for a royal commission. The available records on certain named individuals will be reviewed to see whether there is any indication that screening and immigration procedures were not correctly observed. I assure Senator Chipp that the Government is keeping the situation under review having regard to the outcome of those present inquiries and to any further accusations which may be made. I just add that some of these allegations have been made before, including the allegation that a number of those concerned are prominent members of the New South Wales branch of the Liberal Party. Perhaps that will dictate an investigation too. Senator COATES —I ask the Minister for Resources and Energy whether he has seen the reported comments of the Liberal member for Franklin about the price of home heating oil? Is there any basis for the member's claim that if he had not drawn attention to the situation prices would not have fallen? Was Mr Goodluck's so-called pressure on the Government and the oil companies the sole reason for the price drop? What are the facts of this matter? Senator GARETH EVANS —The honourable member for Franklin, in a familiar burst of vulgar self-promotion that is endemic among Tasmanian members but not, of course, senators, has been claiming that as a direct result of writing to me about the price of home heating oil, the price of this product has been reduced. That claim has been spread about by the Bulletin, most of the Tasmanian Press and a good deal else as well. Let me set the matter quite straight. Action was taken by me to have this matter investigated long before Mr Goodluck raised the issue-in fact, as soon as I became aware, as I did after the matter was raised with me, not by anyone on the other side at all but by a number of my Labor colleagues including the honourable members for Canberra and Calare and Senators Coates and, I think, Tate in this chamber, that the price of kerosene and home heating oil was not following petroleum prices down. So it was on 21 March, two weeks prior to Mr Goodluck's letter to me, that I requested that the matter be examined by my Department. It was on 3 April, four days prior to receipt of Mr Goodluck's letter, that I signed a letter to the Treasurer seeking formal consideration of this matter by the Prices Surveillance Authority. It will be recalled that on 17 April I answered a question from Senator Tate in which I provided details of the substantial reply I received on that day from the Treasurer on this matter indicating that while prices had now fallen in fact in the market-place, nonetheless the Treasurer did propose to raise the matter with the Prices Surveillance Authority. I can advise the Senate further that the Prices Surveillance Authority is currently in the middle of an examination of the price movements of these non-notifiable products and should be in a position to respond to the Treasurer accordingly. Again, in relation to Mr Goodluck's claim that the Government was simply unaware that these products did not have maximum wholesale prices set for them by the PSA, the Government, of course, was perfectly well aware of that and in fact announced the decision as to what the PSA would be monitoring and recommending prices in relation to back in 1984. At the same time, arrangements were made, as I said in answer to Senator Tate, to ensure that continued information was given to the PSA so that prices could be monitored on an ongoing basis. So while I certainly do listen to representations that are made and look at information that is given to me by honourable members and senators on both sides of the Parliament and I do respond seriously to them, after Mr Goodluck's grandstanding on this occasion I am afraid that I will be taking about as much notice of him in the future as I did when he dressed up in his chicken feathers a few weeks ago and started squawking cock-a-doodle-doo. Senator BROWNHILL —My question is directed to the Minister for Finance. I refer the Minister to the confusion which arose about the impact of the Government's decision not to proceed with the tax package proposal on the quarantining of farm losses. The Minister will recall describing the cost to revenue figure of $65m as a gross figure, but Acting Treasurer Hurford had said it was net. Has the Minister completed the check he said he would make on this difference? Can he say who is right and what is the correct figure? Senator WALSH —The situation is as I expected it was when I answered a question on the Thursday of the last sitting week. I do not have the precise quotation with me but in Mr Kerin's statement there was a reference to a net cost to revenue. It was checked out with Mr Hurford's office, Mr Hurford then being the Acting Treasurer. That was a net figure- net of the previously proposed changes to tax averaging provisions as well. This is as I very clearly indicated at the time. What was then a hunch, if one likes, or a supposition, is in fact the case. Senator SIBRAA —Is the Minister representing the Minister for Foreign Affairs aware that in an open session of the Socialist International conference on southern Africa held last week, Chairman Willy Brandt praised the work of former Prime Minister Malcolm Fraser on the Eminent Persons Group? Can the Minister advise the Senate of the committee's progress and when it is likely to report? Senator GARETH EVANS —The Government is aware of Mr Brandt's complimentary remarks about the Commonwealth's initiative and Mr Fraser's role in it. I am grateful to Senator Sibraa for raising this matter. As honourable senators will know, the Commonwealth Heads of Government Meeting in Nassau issued a Commonwealth accord on southern Africa which called on the South African Government to dismantle the system of apartheid, determine the existing state of emergency, release immediately and unconditionally Nelson Mandela and all other people imprisoned or detained for their opposition to apartheid, establish political freedom, lift the bans on the African National Congress and other political parties and initiate dialogue with all groups with a view to establishing a non-racial representative government. Under that accord a Group of Eminent Persons was established to seek to facilitate the processes of dialogue. As the name suggests, the Group is not, nor is it intended to be, an intergovernmental committee. Australia's nominee to the Group is Malcolm Fraser, who also acts as joint chairman of it. Members of the Group, whose efforts, including those of Mr Fraser, have been characterised throughout by a great deal of energy and expertise, have now made two visits to South Africa and have met a wide range of Government Ministers and black leaders. They have been asked to report to Heads of Government by the end of June. What is happening is as follows: The accord Heads of Government from Zambia, Australia, the Bahamas, Canada, India, the United Kingdom and Zimbabwe, or their representatives, will meet after June this year to consider the report of the EPG and to review the situation. The Government takes the view that Commonwealth governments, in agreeing to a broad range of measures to impress upon the South African Government the urgent necessity for change, have adopted the Australian proposal to set up the EPG. Australia believes that it is vital that dialogue and negotiation for change across the lines of colour, politics and religion be instituted in South Africa and that there must be a suspension of violence on all sides to enable dialogue to take place at the earliest opportunity. Mr Hawke's visit to Washington and London involved discussions of this Commonwealth initiative and its importance was, I am advised, reaffirmed during the conversations he had in those two places. Finally, I mention that the Government understands that a South African reaction to its earlier discussions with the Group in March of this year is in train and will be considered by the Group at its meeting in London on 30 April. For its part, the Australian Government sincerely hopes that the Group will continue with its valuable work within the terms of its CHOGM mandate. Senator SHEIL —My question is directed to the Minister representing the Attorney-General. A constituent of mine rang a well-known country newspaper to insert an advertisement for a married couple to work on the farm and was told that she could not use the phrase `married couple' as it was discriminatory. The only words allowed were `two persons'. My constituent then asked on whose authority the words `married couple, could not be used. The reply was `The Human Rights Commission'. Will the Minister please inform the Senate if marriage is no longer a lawful and honourable estate? Does this mean that there is no more freedom of the Press when reporters refer to married couples? Does this now mean that potential employers can no longer even advertise for the type of employees who are best suited to the job? Senator GARETH EVANS —The Sex Discrimination Act does make it an offence to advertise in a way that discriminates against potential employees on the ground of their marital status. However, the prohibition on discrimination in the Sex Discrimination Act is not absolute; the Act includes an exemption for situations where the employment relates to domestic duties and where accommodation provided with a job is essentially domestic accommodation with the employer. In those situations it is not an offence for an employer to advertise for a married couple. I notice, incidentally, that in the Press reports of this matter, which have been widespread, there is some suggestion that there was a difficulty about even asking for a couple, as distinct from a married couple. I cannot believe that there is any prohibition in the Sex Discrimination Act, as has been alleged, on advertising in terms that are open-ended in that particular way, but that is a matter that I am further checking up with the Attorney-General. Senator MAGUIRE —My question is directed to the Minister representing the Treasurer. I refer to the economic recovery in Australia since 1983. I ask the Minister: Are all parts of Australia sharing uniformly in the recovery, and, if not, what actions need to be taken to spread economic growth to all States and regions of Australia? Senator WALSH —Senator Maguire asked whether the benefits of the economic recovery were being spread uniformly across Australia. The answer to that is clearly no. Those benefits are not being spread uniformly. In particular, the benefits are not being received in Queensland because the economic recovery has not taken place in Queensland to near the same extent as it has in the other mainland States. Indeed, Queensland is dragging down the rest of Australia and it has been for a number of years. Coincidentally, I happen to have with me a copy of a Press release put out about ten days ago, I think, by Senator Maguire. It draws attention to some more statistics which reveal the relatively poor condition of the Queensland economy in relation to the rest of the country. It shows that in Queensland there are more people receiving unemployment benefits than there are in Victoria, even though the labour force of Victoria is some 67 per cent larger than the labour force of Queensland. That disparity in the number of people receiving unemployment benefits cannot be attributed, as the Premier has attempted to attribute it, to young people flocking to loaf under the sun in Queensland because in the most recent 12-month period for which figures are available there was a net migration from Queensland of people in the prime 20 to 34 working age group. When the Queensland Premier gave his last policy speech in 1983, only 14.8 per cent of the nation's jobless people lived in Queensland. That figure has now risen to an appalling 18.1 per cent, which is just another way of drawing attention to the fact that the performance of the Queensland economy relative to that of the rest of Australia in the last three years has been abysmal and that Queensland is dragging down the rest of the country. Senator PARER —My question is directed to the Leader of the Government in the Senate. The Minister will be acutely aware that our current inflation rate, as measured by the consumer price index, is running at 9.2 per cent as compared with less than 2 per cent for Japan and Germany. Does the Minister agree with the comments by the Treasurer that the inflation rate is going according to plan and has peaked? Is this an inverted J curve theory? Senator BUTTON —I am not an expert on the J curve so I will not comment on the last part of the question. There are plenty of people who are experts. So far as the serious part of the question is concerned, the latest CPI result for the March quarter is somewhat disappointing and there are some special factors in it, including increased automobile prices, I might add, and a reduction in petrol discounting, which have had a particular effect on that figure. I have not seen the precise statement made by the Treasurer, but certainly the Government expects a considerably better inflation outcome in the June quarter and a steadily better inflation outcome from then on. The effects of the devaluation on the Australian inflation rate have been somewhat staggered in their impact. Some of those effects, I believe, will still be coming through in the June quarter but will be offset by other factors which will have a beneficial effect. In the overall context of the question, of course, it is a very obvious point for an Opposition to make that the inflation rate is not good when compared with that of other countries enjoying at the moment record low inflation rates-countries such as Germany and Switzerland. Nonetheless, the inflation performance has not been bad and we expect it to be better in the forthcoming months. It is not the only factor, of course, which goes to the important issue of competitiveness. There are a range of other factors, including the exchange rate, which affect relative results and that is one factor only which the Government regards as important. Senator CROWLEY —I ask the Minister Assisting the Prime Minister on the Status of Women whether she is aware of statements made by Senator Haines at the recent Women's Electoral Lobby National Agenda on Women Conference and on radio this morning. Will the Minister comment on the claim by Senator Haines that the Prime Minister is not committed to his Government's policies on improving the status of women and that Labor achievements in women's affairs are due more to the persistence of Senator Ryan? Can the Minister comment on the further remark that she has `no right to say that WEL's claim for improved child care, portable housing and increased welfare benefits for single mothers to bring them above the poverty line were not based on economic reality'? Senator RYAN —I can do without backhand compliments of that kind from Senator Haines. If Senator Haines had been paying attention to the program of improving opportunities for women being carried out by the Hawke Government she, like everybody else, would be aware that that program has been supported personally as well as politically by the Prime Minister. Senator Chipp —But she did get a standing ovation, didn't she? Senator RYAN —No. The fact that a few Democrats were there behaving like superannuated cheer leaders certainly does not amount to a standing ovation. It is really unfortunate that somebody who has the nous to be elected to represent the people of South Australia in this place, if only on the Democrat ticket, should judge economic illiteracy, populism and grandstanding to be a better way to get improvements for women than reasoned, careful policy development. It is very disappointing that an honourable senator who professes an interest in women, latter day profession though it is, should attack a government in the uninformed and misleading way that Senator Haines chose to do. The areas she mentioned were child care, benefits for low income women and housing. Everybody in the Senate knows, for example, that $65m was spent on child care in the last year of the Fraser Government. This year, we will spend about $145m. Any honourable senator who can say in a public place that our Government has not supported the expansion of child care is behaving very irresponsibly. Similarly, to talk about housing in a way that suggests that our Government has not supported increased housing for poor women is absolutely and deliberately misleading. Honourable senators will be aware that 192,500 people have already benefited from the first home owners scheme. Many women have benefited in their own right and many more women have benefited as part of a marriage. Increases in public housing in every State and Territory have been dramatic. All these things have come about because of the successful economic strategy of our Government. It is also grossly misleading, or very ignorant, to suggest that the only way of assisting women in poverty is to give benefits. We have increased benefits and associated payments for children in each Budget but as well we have done the greatest and most effective thing to assist women to get out of poverty by implementing our job creation program. We have created over half a million jobs since we came to office. More than half of those half a million jobs have gone to women. There is no better or more effective form of assistance for women who are living in poverty-as pensioners, or in some other poverty stricken circumstance-than to create employment for them. In terms of access of women to the labour market, let us look at our Government's record in education. Since our period in office began, more young girls than boys have been completing their secondary education and, therefore, more will be getting the benefit of the greatly increased secondary allowances scheme which will assist them to conclude their secondary education. Of the extra 25,000 higher education places that have been created by our Government, almost half are going to women because of the increased participation of women in the higher education sector. If Senator Haines does not understand that improved education at both the secondary and the tertiary level is the best way to ensure that women will have access to secure income, it is time she went back to the drawing board-started from scratch-and really informed herself about who in this country lives in poverty and who has secure income. Our Government has consistently adopted constructive programs which give women the opportunity to get employment and employment skills and, at the same time, to have secure housing and affordable child care. That a senator who has been in this place long enough to know all these things should go into a public forum and on the media and shamelessly deny all these facts is, I think, a disgrace to her and to her Party. As far as advocacy for women is concerned, it is absolutely pathetic. Senator WATSON —Does the Minister for Resources and Energy acknowledge that, within primary industry, hop producers heating kilns with liquefied petroleum gas are now facing a severe cost disadvantage compared with those using diesel? Will the Minister review this position with a view to alleviating it by reducing government levies to primary producers using LPG in farming operations? Senator GARETH EVANS —The question as to the pricing and taxation policy in relation to petroleum products is before the Industries Assistance Commission at the moment. That is one issue that will, no doubt, be addressed in that context. It will certainly be looked at further by the Commonwealth. I will say only this about LPG pricing: The great difficulty with that over recent years has been the extraordinary volatility of price movements in that commodity. A deliberate decision was taken some time ago by this Government to introduce a system of consumer price index related price movements and international price related movements in LPG which would take out that volatility, seasonal and otherwise, and give users-in particular local government users and so on, for whom this was important-some certainty. As to automotive LPG and the pricing policy in relation to that, and the possible-- Senator Watson —Heating fuel specifically for kilns. Senator GARETH EVANS —The honourable senator is talking about heating fuel? Senator Watson —Yes. Senator GARETH EVANS —I thought that was the case. I will look at the matter further in the light of Senator Watson's question. It is a policy that was deliberately established, I think a couple of years ago, in order to give certainty at the expense of volatility. For that reason we have stuck with it, even though the recent price movements in LPG have in fact been counter to the trend for petroleum products generally, flowing from the decline in crude oil prices. I will have another look at the question and give Senator Watson a more considered answer if it seems appropriate to do so. Senator McKIERNAN —Is the Minister representing the Minister for Territories aware of a recent visit to Norfolk Island by a French patrol boat, La Dieppoise? Was this visit an attempt by the French to repair relations with the Norfolk Island authorities in the aftermath of the sinking of the Greenpeace vessel the Rainbow Warrior? Did the visit have the desired effect? Senator GIETZELT —I am advised that there was a goodwill visit to Norfolk Island by the French patrol boat La Dieppoise on 17 April. The purpose of that visit was ostensibly to establish good relations between our two countries. However, I am advised that it appears that during the visit the French Consul-General, who was making a visit to the island simultaneously with the patrol boat, was questioned by police regarding allegations of offensive behaviour while on the beach at Emily Bay. The allegation is that in a public place-the beach at Emily Bay-he engaged in such conduct that is normally carried out privately. I do not sit in judgment upon such behaviour, but it was brought to the attention of the authorities and he was questioned by the police regarding his activities while there. The Consul-General apologised and left Norfolk Island at the completion of his visit. I suppose this could be said to be an example of French diplomacy at work. No wonder the French seem to be in some trouble in the Pacific area, having regard to what happened in New Zealand, now at Norfolk Island and, of course, the French testing at Mururoa Atoll. It would appear that this is probably a minor explosion compared with the other difficulties the French Government found itself in. Senator SANDERS —Will the Minister for Resources and Energy give all available details of the nuclear reactor accident in the Union of Soviet Socialist Republics, reported today? In view of the spread of radioactivity to Scandinavian countries, does this not substantiate the view that nuclear accidents cannot be contained or prevented and represent an international threat? In view of the increasing frequency and seriousness of nuclear accidents, will the Government withdraw its support for uranium mining and instead carry out its moral obligations to protect human life and the environment? Senator GARETH EVANS —As of an hour ago, when I last checked, the Government did not have any details additional to those already released through the media today in relation to the nuclear power reactor accident at the Chernobyl site in the USSR. Further information on this is being sought through Australian representatives in the USSR and the Scandinavian countries affected by this accident. I will certainly put further information before the Senate if and when it becomes available. As to some of the other questions Senator Sanders has put to me, while no method of power generation is risk free, the nuclear record to date, notwithstanding this apparent accident, has been excellent. In the 3,600 reactor years of operating experience there have been very few significant accidents. Whilst it is not possible to confine radiation once released, this is also true of pollutants released from other forms of power generation. In the case of nuclear powered generation, in Western countries reactors are encased in a containment building specifically engineered to prevent releases of radioactivity to the atmosphere. Senator Mason —Except for the cracks in them. Senator GARETH EVANS —That may be, but it is that that I think is well appreciated as one of the reasons why there was no dangerous release of radioactivity in the context of the Three Mile Island accident. Some Russian reactors, however, do not have containment buildings. We are not certain yet whether it is the case that the Chernobyl reactors are in that category. That is one of the things on which we are seeking further advice, because that will very much determine one's estimate of the size of the accident in this case. It is not possible, without knowing the answer to that particular question, to say whether there are any implications for Western reactor installations. As to the other parts of the question, Australia does not sell uranium to the USSR. The absence of mining in this country would not have prevented the present accident. As to moral obligations about which Senator Sanders asked me, the Australian Government's view is that it has a moral obligation to continue to provide uranium to those countries which lack adequate energy resources and which rely on nuclear power for a substantial proportion of their energy needs, provided they have concluded agreements obliging them to observe the strict safeguards that are imposed on all Australian uranium exports. I make the further point that we have, I believe, not only a moral obligation but also a legal obligation to so act by virtue of our status as a signatory and an active proponent of the Treaty on the Non-Proliferation of Nuclear Weapons, which combines an obligation not to participate in any way in the proliferation of nuclear weapons with an equally compelling obligation to make available nuclear technology and nuclear power sources-uranium-for peaceful purposes. The PRESIDENT —I draw the attention of honourable senators to the presence in the President's Gallery of a former distinguished senator for South Australia, Mr Jim Toohey, and Mrs Toohey. On behalf of all honourable senators I extend to them a warm and friendly welcome upon their return to Canberra. Honourable senators-Hear, hear! Senator REYNOLDS —I address my question to the Minister for Resources and Energy. Is it true that Queensland coal companies are facing an unfair burden of State rail freight and port charges which is restricting their competitiveness? How can the Queensland Government claim that Queensland is a low tax State when it is reaping freight and royalty profits from the coal industry of up to $600m a year? What impact do such State charges have on Australia's overseas trading prospects? Senator GARETH EVANS —The Queensland Government is understandably reticent about the so-called profit element embodied in its rail freights or port charges. The rail freight agreements negotiated between the Queensland Government and the coal producers are confidential and that inhibits, I regret, informed debate on the matter. However, the Queensland Chamber of Mines has stated that it has estimated that the total income from the coal rail freight tax totalled $364m in 1984-85. I should make it clear that the Commonwealth Government is not opposed to the concept of taxation of resource industry revenues. However, as I stated last week to the Australian Coal Conference in Queensland, Commonwealth and State taxes and charges on the coal industry, of which rail freights are pre-eminent, need to be reviewed and, I believe, replaced with a more equitable and rational taxation scheme. Taxation arrangements which are open to the public view and which do not discourage production at the margin-which arguably the present rail freight regime, particularly in Queensland, certainly does-are surely better than a concealed system of taxation. It has not been easy in recent years to have any kind of rational dialogue with the Queensland Government, although it has not been unique among the States in respect of taxation matters, on questions of resources taxation. The present rather stressed condition of a whole variety of resource industries makes it imperative that a sensible, constructive and co-operative approach be taken to these questions of taxation. I look forward-although it will be difficult in an election year-to some appropriately constructive response in due course from the Queensland Government and not the kind of rather ill thought-out reactions we have had so far on this very important question. Senator PUPLICK —My question is directed to the Minister representing the Minister for Health. Did he see reports in the media last week that a campaign is being organised by certain trade unions, led by Mr Tom Ryan of the notorious Food Preservers Union, to prevent the introduction of a system of food irradiation in Australia? Is this campaign being aided and abetted by the honourable members for Capricornia and Hindmarsh on behalf of the Australian Labor Party? Does the Minister accept that the irradiation of food, if carried out in accordance with standards and practices such as those being developed by the National Health and Medical Research Council and the Australian Atomic Energy Commission, is perfectly safe, prolongs the shelf life of food, and helps avoid very significant losses to growers and food producers? Will the Minister give assurances that a sensible approach to food preservation problems will not be sidetracked by ill-informed campaigns mounted by left wing unions and their parliamentary mouthpieces? Senator GRIMES —I think I will ignore that last remark, except to suggest that anyone who describes Mr Keith Wright as Mr Tom Ryan's mouthpiece in this Parliament must have a very strange view of the ideological and philosphical positions of people in the Australian Labor Party. I did notice the article in the Australian, I think it was, concerning the views of Mr Tom Ryan and others on the irradiation of food. I did not see the article anywhere else and it did not seem to create much excitement around the place. The Public Health Committee of the National Health and Medical Research Council has developed a model food standard for food irradiation and I understand that this model will be on the Council's agenda at its next meeting. The model is based on the international standard developed and endorsed by the Codex Alimentarious Committee of the World Health Organisation and the Food and Agriculture Organisation. The model has been developed after considerable consultation with the scientific community, with the State and Territory Departments of Health, the Australian Federation of Consumer Organisations, representatives of the food industry, and relevant unions. The Department of Health is developing an information paper on the irradiation of food-stuffs, and that paper, it is expected, will form the basis of discussion by consumers and interested parties throughout Australia. It is important that we do have proper discussion on this. When we do have discussion on this, it is expected that people who have either direct interests or concerns as to the effects of irradiation on food, or who have indirect concerns as to the effect on employment of irradiated food being made available-I suspect that this is what Mr Ryan is concerned about-will have their say. If Senator Puplick wants to say that conducting a campaign against irradiation is having one's say, he can. But I do not think that is very effective. The decision about the model will be made by the NHMRC and the Government. The future of irradiation as a means of preserving food in this country will be made by the Federal and State departments of health as a result of consultations and discussions with experts and with the community at large. The reason that some countries have banned irradiation as a means of preserving food has frequently not been to do with irradiation per se, but to do with such things as employment and the protection of their own industries. I dare say that all those factors will also be taken into account in Australia. I will let the honourable member for Capricornia and the honourable member for Hindmarsh, who are allegedly the mouth-pieces for Tom Ryan, know that they have been described as such. I will let them answer that accusation in their own way. Senator JONES —My question is directed to the Minister for Finance. Has his attention been drawn to the Australian Bureau of Statistics' publication Government Financial Estimates 1985-86, released on 22 April this year, which shows that the deficit of the Commonwealth Government Budget sector dropped from $6.6 billion in 1984-85 to an estimated $4.8 billion in 1985-86, which represents a decrease of 27 per cent? Is he also aware that in Queensland the State Government Budget sector deficit rose from $541m in 1984-85 to an estimated $1.2 billion in 1985-86, a rise of 113 per cent? Does this mean that the estimated deficit in the Queensland Budget sector is the highest of any Australian State? Senator WALSH —The publication Government Financial Estimates 1985-86 was issued on 22 April and I note that it has the name of the former Secretary to the Department of Finance on the first page as the Australian Statistician. Senator Jones referred in the question to the decline in the Commonwealth Budget deficit. Those figures, as I recall them, are correct. He also referred to the relative indebtedness of Queensland compared with other States. I think probably a more reliable indicator of the rate of increase in indebtedness in a State is the total State deficit rather than the Budget sector deficit. This is particularly so, I think, in the case of Queensland. The Queensland Government has adopted, to a greater extent than other governments have, the practice of heavy borrowings through statutory authorities which are not recorded as budget sector deficits, but which are still, of course, public sector deficits and ultimately a liability charged against the citizens and taxpayers of Queensland. Let us look at the total State deficit on a per capita basis. This, of course, is the most reliable way or, indeed, the only realistic way of making such comparisons when there are enormous variations in population between the smaller State of Tasmania and the largest State of New South Wales and, therefore, huge variations in the absolute amount of public sector debt incurred. Looking at that on a per capita basis we see that it is certainly true that Queensland's increase in public sector indebtedness in 1985-86 is by far the highest of any mainland State. Indeed, at $67 per capita it is more than double the New South Wales figure of $33, some 50 per cent higher than the Victorian figure of $46, almost double the South Australian figure of $36 and some 25 or 30 per cent higher than the Western Australian figure of $53. I have not yet mentioned Tasmania, the only State which on a per capita basis had a higher increase in public sector debt than the State of Queensland. As I recall, this is not new. Queensland has been going down that road for a considerable number of years. It has a very rapidly increasing level of public sector debt, even to the point, I would suggest, of being dangerous. As I have said many times before, Queensland has an abysmal economic performance accompanying that very rapid and alarming increase in public sector debt. Senator BJELKE-PETERSEN —My question is directed to the Leader of the Government in the Senate. Is it a fact that the Minister for Primary Industry told the National Farmers and Graziers Association meeting at Horsham on 23 October 1984 that he would oppose any new capital gains taxes and death duties in the strongest terms? I ask the Minister also whether he is aware that Mr Kerin was reported in the Australian newspaper on 9 April as saying: My objection to a capital gains tax is the same as probate in that it has the effect of rendering the rural sector in the long term less viable. The family has to sell part of the property to pay probate or capital gains tax. If this is so, why is the Minister now saying that the capital gains tax is in the farmers' long term interest? Is this Government policy? Would the Minister not agree that the Minister for Primary Industry has been telling rural Australians, farmers in particular, complete untruths? Senator BUTTON —First of all let me say that the integrity and honesty of the Minister for Primary Industry is something which shines out like a beacon in the history of Primary Industry Ministers in Australia. Part of the problem of the rural sector of the Australian economy is that it has been pulled by the nose for too long by National Party representatives in this place and cluttered with a whole range of subsidies which it saw as the solution to its problems. I suggest that if the honourable senator does not know that she should look at the video of the meeting late last year between a selected group from the National Farmers Federation, Minister Kerin and Mr Ian Sinclair, to see what that group's view was on that occasion about the sort of policies which have got farmers into their present difficulties. The policies that have got them into their present difficulties have been the policies of poujadism and agrarian socialism adopted by the National Party over many years rather than confronting the real issues that face the Australian rural sector. I have no idea what Mr Kerin said at Horsham on 23 November 1984. However, I do not regard it as being in the slightest degree relevant because what the honourable senator later suggested was that the report in the Australian newspaper quoted him as having drawn some correlation between a capital gains tax and probate duties. I suggest that the honourable senator read her own question again. There is no question of probate duties, so she can stop pursuing that straw man in Queensland in the course of the forthcoming election campaign. I would not bother about that if I were her, because there is no question of probate duties. In respect of the very significant exemptions from the proposed capital gains tax, if anybody benefits it will of course be the rural producer. That was structured in such a way as to ensure that precise effect. To suggest, on the basis of a couple of miscellaneous Press quotations or alleged comments made by the Minister last year, culled no doubt by a diligent but not very intelligent research assistant-- Senator Bjelke-Petersen —It was me. Senator BUTTON —That was the honourable senator? I am sorry-I thought the honourable senator had put her imprimatur on the work of some research assistant. I did not imagine that she had done it herself. I apologise for any suggestion which I made. To throw those two things together for the purpose of trying to denigrate one of the best Ministers for Primary Industry this country has ever had is a shabby little exercise. Senator ZAKHAROV —I address my question to the Minister representing the Minister for Transport. Has the Minister's attention been drawn to criticism made by the Opposition spokesman for transport of the adequacy of the Australian design rule system, particularly with respect to the problem of failing seat adjusters on Chrysler Valiant vehicles? If so, is he able to comment on the criticism and can he inform the Senate of any action taken by the Government? Senator GIETZELT —There is a conflict of opinion between the Federal Office of Road Safety and Mitsubishi, which is responsible for Chrysler vehicles, arising out of some experiences in respect of Valiant seat adjusters used in Chrysler vehicles. I have seen the criticism that has been made and that criticism is generally correct. The problem is exacerbated by the failure of the company to recognise that a defect exists. Numerous cases have been reported of seats breaking free of their mountings at a lower level of impact than is required by design rules put out by the Federal Office of Road Safety. Subsequent tests conducted by the Federal organisation have shown that seat slides in Chrysler vehicles are defective. However, the Government is in difficulty because Mitsubishi has refused to accept the fact that there are defects and has refused to recall vehicles as requested. The technical advice that is available to the Federal Government as well as to State governments indicates that the State governments ultimately have the power to refuse registration for non-compliance with Federal road safety regulations. The difficulty is that, regardless of the dispute as to whether there is a defect, there is little, if any, evidence to show that injuries have been sustained. It is on that basis that Mitsubishi has rejected the proposals by the Federal Office of Road Safety. There is, therefore, a clear deficiency in the legislation which points to a weakness in the voluntary code of recall. Consequently, the Government is considering amending the Trade Practices Act to backup the voluntary codes where we are not able to reach agreement with the company involved in respect of road safety matters. Senator GARETH EVANS —On 15 April Senator Kilgariff asked me a question about the intentions of Mr Gutman, who is conducting the inquiry into the taxation of gold mining, with respect to a public hearing and, indeed, visits to the Northern Territory. I have some further information as follows: Senator Kilgariff will by now, I believe, have received a letter from Mr Gutman indicating that he has already in fact visited Darwin and Pine Creek and is proposing to visit Tennant Creek in May. As to the question of the public hearing in the Northern Territory, I have been advised by Mr Gutman, through the Treasurer's office, as follows: The matter of a Northern Territory hearing was raised earlier in the course of our discussions in Darwin but to date no request for such a hearing has been received from the Northern Territory Administration. If one were received I should seek to respond in a positive manner. Senator WALSH(Western Australia-Minister for Finance) —I seek leave to make a ministerial statement on changes to export inspection ministerial orders. Leave granted. Senator WALSH —I seek leave to incorporate the statement in Hansard. Leave granted. The statement read as follows- Amendments to the Prescribed Goods (General) Orders made under the Export Control Act 1982 entered into force on 18 February 1986, and were not disallowed by the House of Representatives within the statutory time limit. They have however run into trouble in the Senate, with the threat of a disallowance vote to be taken here on 30 April 1986. Senators would be well aware that these orders were introduced as a result of a recent Full Federal Court bench decision which found that the law did not give effect to the Government's intentions in regard to one aspect of the provision of a cost effective export inspection service by the Department of Primary Industry. The amendments gave the Department of Primary Industry the legal right to take into account issues affecting management efficiency, staff safety, and welfare of relevant export industries when considering requests to provide services; and also gave the Minister for Primary Industry the right to intervene in departmental decision making processes where it is in the national interest to do so. They also provide for decisions by officials to be reviewable by the Administrative Appeals Tribunal. If the amendments were not made, the orders would have required the Department to provide inspection services unless `impossible' to do so, regardless of the consequences to Australia, the cost, or any consideration of staff welfare and safety. The Minister would have had no clearly defined right to become involved, even though he is answerable to this Parliament for the actions of his Department. The provisions break no new ground in either administrative law or delegated legislation. Similar provisions are contained in many pieces of legislation passed by this and previous parliaments. The amendments were considered by the Senate Standing Committee on Regulations and Ordinances and specialised legal advice was received by that Committee. As senators would be aware, the Committee is a bi-partisan committee comprised of members of the major political parties which examines all delegated legislation to ascertain whether the legislation satisfies the following four principles: (A) That it is in accordance with the statute; (B) that it does not trespass unduly on personal rights and liberties; (C) that it does not unduly make the rights and liberties of the citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and (D) that it does not contain matter more appropriate for parliamentary enactment. The Chairman of the Committee told the Senate on 19 March 1986 that after considering the orders generally and the legal adviser's report in particular, the Committee concluded that it could not object to the orders under its principles and that the Committee did not consider that any of its principles were infringed. In this particular issue there has been too much concentration on the political aspects of the Mudginberri Abattoir dispute and the subsequent legal proceedings and not enough on the problems that the amendments to the legislation are designed to overcome. The amendments were not made to allow the Government to avoid its responsibilities or to give the unions more power. They are in the interest of proper government administration and are to correct what is widely acknowledged to be a deficiency in existing legislation. However, for political reasons the Opposition parties chose to oppose the changes in the House of Representatives and in the Senate. I say for political reasons because while their record of public administration leaves much to be desired, I cannot believe that their grasp of the principles of proper administration is so poor as for them to oppose the changes on any other grounds. The House of Representatives passed the changes but the Opposition parties in the Senate threatened to disallow the orders. As a consequence the Senate was asked for time to refer the matter to the industry for further consideration, as the Minister believed that the meat industry, in particular, needed more time to consider the issue. He was given until 30 April. Because of the importance to the meat industry, the Minister arranged for the Australian Meat and Livestock Industry Policy Council (AMLIPC) to look at the issue. The Chairman of the Inspection Policy Council has also provided him with a view. Indications from the first meeting of the AMLIPC held to discuss the issue were that they felt the orders as proposed were too broad. As a result senior officials from the Department discussed the matter with the AMLIPC and put before the Council for consideration revised wording of the orders to make the conditions of the discretion more specific. The Minister believes that the reworded orders adequately address industry's concerns and consequently the Government is willing to compromise and make changes to the orders put before the Senate in an effort to find common ground. In framing these amendments the Government has considered the need of Australia's meat and livestock industry to develop and maintain a reputation as a reliable supplier on the international market. However, AMLIPC was only able to agree unanimously that provision should be made for withholding inspection services where staff are not available to satisfy all applications within applicable budgetary limits and where there is an occupational health or safety risk. The majority of AMLIPC members were not supportive of the other provisions, namely that inspection services might be temporarily withheld where there is a risk of physical assault or intimidation of staff, even where the police are agreed that there is a risk, or where there is a need for a `cooling-off' period in the event of an industrial dispute-although they did offer to have the industry further consider the industrial relations aspects at a later date. The AMLIPC also opposed any provision which would give the Minister a right to intervene in departmental decision making when the national interest is involved. The previous views expressed by the Opposition parties in the House of Representatives and in the Senate on ministerial involvement are difficult to fathom. National interest in this context covers the interests of the industry and the public interest and it is clear that there may be times when the public interest is greater than that of the industry and this must at least be able to be taken into account without recourse to the courts. The unclear position of the responsible Minister's involvement in officials' decisions where national interest considerations may be involved runs contrary to all the principles of our system of elected government. The attitude by some industry groups and by the Opposition to the realities of managing a complex service industry seems blinkered, possibly because the issue is still being clouded by the emotionalism attached to Mudginberri and by political considerations of the organisations concerned. Quite frankly it is beyond me how anyone can refuse to agree to clarify the law where staff safety is involved or where some cooling-off period for industrial negotiation is desirable. On the question of staff safety, the inspection service has on a number of occasions been confronted with staff being placed at physical risk by threats of violence or actual violence. In a very recent incident such threats led to an inspector being physically assaulted and injured off the premises. The service must not be put in a position where there are any doubts about its legal right to clear its staff from such situations. Further it should be recognised that most industrial disputes involving inspection staff are localised and short in duration being resolved by level-headed conciliatory negotiation. To inflame such minor disputes by immediately trying to force inspectors to work regardless of the circumstances and merits of the case is stupid in industrial relations terms. We must allow management the flexibility to have a short `cooling-off' period to negotiate and attempt a conciliation. We have a recipe for industrial disaster if the orders are not amended. Those opposed to the amendments are, in fact, putting more power in the hands of the unions, for the unions are now the only group that has any discretion. Recognising the importance of these issues, the Inspection Policy Council (IPC) while not being unanimous on the matter is in general agreement with the inclusion of provisions which would allow services to be withheld where availability and management efficiency are involved and in the interests of staff-safety and to provide an industrial relations `cooling-off' period. The proposal to allow ministerial intervention is also generally supported by IPC on the grounds that it will effectively provide an additional avenue for appeal. I would point out that the IPC has indicated to the Minister previously their unanimous view that it is untenable to have the inspection service and the Government placed in the position where they have little say in the provision of an inspection service, yet are held fully accountable for that service. Following receipt of this advice from the AMLIPC and IPC, the Minister has had new orders prepared. The new orders which were gazetted and tabled in the House of Representatives and in the Senate today are explained in the explanatory statement. Briefly, they repeal the existing provisions and substitute more detailed criteria under which a discretion may be exercised. The criteria are drafted so as to leave some scope for negotiations to take place in an industrial dispute and to give flexibility where there is physical threat to staff. In the ministerial directions provision, the Minister would be required to consult directly with relevant industry bodies before making any direction on `national interest' grounds. The Senate should note that industry supports orders 100a and 100b. While the new orders 100a and 100b go some way to resolving the administrative problems, industrial, staff safety and public accountability aspects are not, however, recognised. What the industry is doing is asking the management of the inspection service to run its operation in a commercial way without the discretion that they themselves demand in their own daily businesses. I notice from the Hansard of the Senate debate of 19 March 1986, that there was some concern expressed that ministerial direction should be provided for in the principal Act, rather than orders. I gather this was despite the view of the Senate Standing Committee on Regulations and Ordinances. If the placement of new orders 111a.1 and 111a.2 remains the only concern the Minister would be agreeable to amending the Export Control Act 1982 accordingly and repealing the relevant orders at that time. I hope that commonsense now prevails in the Senate. The orders as now presented represent a genuine attempt by this Government to meet the requests of industry. They reflect the Minister's concern that disallowance would result, over time, in greater costs and detract from the ongoing drive to provide inspection services in an efficient and cost effective way in accordance with the accepted principles of good public administration. The judgment of the Full Bench is very clear on the point that under the previous law the inspection service must provide services unless it is actually impossible to do so. The Full Bench clearly indicated that the policy aspects could be fixed by amending the orders, and the Government has taken this course of action. If any of the new orders are disallowed then the Minister would wish to make it clear that the inspection service will abide by the law, in a sensible, non-emotional way-but it will not, as some people seem to think, disregard the law when it suits the industry for it to do so. Senator WALSH —I move: That the Senate take note of the statement. Senator COLLARD(Queensland Leader of the National Party of Australia)(3.10) —I note that in the ministerial statement there is mention of a repeal of orders Nos 100a and 111a, which have been the cause of some debate in this chamber in recent times. The orders have become affectionately known as the Mudginberri orders. I thank the Government for that. It is, indeed, indicative of the role of this Senate in its review capacity that we have time to look at things properly and move for those disallowances. That has happened and the Government has taken notice of it. New regulations are in place. We want time to study them. A cursory glance indicates that there are a few outs for a Minister given the same situation again. We are not happy with that. We will be looking at the regulations in the next few days and will be acting accordingly. I seek leave to continue my remarks later. Leave granted; debate adjourned. Senator CHIPP(Victoria-Leader of the Australian Democrats)(3.12) —I move: That the Senate take note of the paper. This report by the Minister for Immigration and Ethnic Affairs (Mr Hurford) on Access and Equity in the Delivery of Federal Government Services and Programs to Migrants is a most important document. The Government clearly believes that migrants, particularly those of non-English speaking background, should not have their right to access to and participation in government services restricted simply by language difficulties. Many of these restrictions are for services which the English speaking community take for granted as part of everyday life. The ethnic communities of Australia have been calling for Federal Government action and have been successful in raising awareness and implementing programs in some of the State governments. Clearly, a Federal overview of its services and access to those services is paramount. It is not good enough for the Government to take a paternalistic view of what migrants need or should have for their own good. Access means participation in decision-making. On page 5 of this report the Minister concedes that: . . . in the delivery of services and implementation of programs, much remains to be done. This is an understatement. The second part of the document entitled `Overview of action taken and required to implement policy' is a litany of the appalling mess which now exists. In data collection, Federal Government departmental statements on services and access to services have revealed that there is not much. Without this information, how can the Government assess the participation of migrants in programs and their use of services? The provision of information in community languages is, in the Minister's words, `somewhat variable'. Further on he states: One matter that is conspicuously absent from most statements is any evidence of Departments or Agencies actively seeking information about problems regarding access and equity. Clearly, some government statements reflect departments' lack of understanding of the issues involved and the Government's policies on access and equity. There is a great deal to be done in educating some of the Ministers and, indeed, a large number of their officers. Finally, I am concerned that the Minister for Immigration and Ethnic Affairs believes, firstly, that the Government has reason to be pleased with its achievements in access and equity in the delivery of services and programs to migrants, and, secondly, that it has been able to achieve this within the existing financial constraints. The reality is revealed in the Ombudsman's progress report of 1983-84, where he advises that budgetary constraints have seriously limited staffing resources available to undertake publicity, to produce information, or to monitor the effectiveness of such publicity within ethnic communities. In Australia today we are past seeing the Anglo-Celtic section of the community as representing the whole of this nation. The whole nation is the sum total of all the varied parts which go to make it so rich. To then say that we are achieving much for this nation within budgetary constraints is to get one's priorities around the wrong way. The very basis of justice in our society is offended if any part of that society does not have access and equity in the delivery of Federal Government services and programs. Senator MESSNER(South Australia)(3.15) —The Opposition, like the Australian Democrats, is very concerned at the report on Access and Equity in the Delivery of Federal Government Services and Programs to Migrants and the statement brought down by the Minister for Immigration and Ethnic Affairs (Mr Hurford). There is an apparent disregard, or even apathy, in the case of many departments as to the need to deliver services for immigrants and for those in ethnic communities. The paper seems to represent some kind of apologia for the mistakes or omissions of the Government over many years and seems to be an attempt to try to put the matter into some kind of better light as a result of the Government's analysis of it. We have particular concerns at the lack of progress in the delivery of services to those of non-English speaking backgrounds, particularly in the area of interpretation in legal cases and certainly in the provision of information in the language of those ethnic groups which are using the services of the Department of Social Security and other service departments. The lack of staff training in some of these departments and the lack of attention being paid to the vital elements of taking a little extra care and a little extra time to deal with people who have language difficulties is certainly the essence of what the Opposition is seeking to see happen in this area. Unfortunately, the Government's statement does not give us that confidence that it has all these matters firmly in hand. As I mentioned earlier, it is something of an apologia. I suppose it is timely, from the point of view of the Government's political imperatives, to bring down such a statement without necessarily addressing more totally the problems faced by those who are not able to address themselves fully in the English language. The statement does represent some progress, however, by drawing our attention to the shortcomings that do exist. It is for that reason and to that degree, I suppose, that we should be pleased that it is made available to all. The point now needs to be made that the Government must continue to monitor the situation and to improve its performance in this area. Senator SHORT(Victoria)(3.18) —I support Senator Messner in relation to the Opposition's response to the report on Access and Equity in the Delivery of Federal Government Services and Programs to Migrants and the statement by the Minister for Immigration and Ethnic Affairs (Mr Hurford). There are some aspects of the report, of course, that are valuable and useful. I certainly have no opposition to those aspects, but what does concern me-I think it is the point on which Senator Messner concluded his comments-is that really what the report is all about is the question of access by some disadvantaged groups in the ethnic communities to government services. The report covers the question of bureau enforcement of various provisions, the establishment of numerous special bodies to engage in yet more research, training programs, and all that sort of material, but nowhere does it deal with the basic problems and issues that migrants and ethnic communities in Australia, along with many other Australians, face in our society. There are, for example, questions such as adequate housing, adequate employment-particularly jobs for our young people-and education for employment rather than, to quote from the report, `having warm relationships with teachers'. Certainly those things are important, but surely the more important things are the essence aspects that the report does not address. A classic example of that in relation to the Government's activities in these and related areas at the moment is the area of housing. We have recently had a ministerial statement and a decision by the Government to increase the migration intake into Australia over the period ahead-a decision I welcome-but in conjunction with that there has been a decision by the Government to take action in the taxation area in relation to negative gearing to increase greatly the cost of rental accommodation and to reduce the availability of rental accommodation. That decision has come at the very time when the Government is announcing an increased migrant intake. The essential result of that intake will be an increased demand for housing and rental housing. We have another example of a basic conflict and contradiction between two areas of government policy-taxation-housing policy on the one hand and migration policy on the other hand. One matter which concerns this side of the Senate and this side of politics is the increasing number of examples of basic contradictions that occur day after day between government policies. There is no evidence of an attempt to co-ordinate government policy in the interests of those community groups, and the community at large, about which the Government professes to be concerned. Whilst not being highly critical of this report, I believe it fails to address the real issues. The Government has not indicated that it will consider addressing those real issues which are of basic concern to migrant and ethnic communities, just as they are of concern to all Australians. Senator REID(Australian Capital Territory) — I seek leave to continue my remarks later and to have the debate adjourned until General Business on Thursday of this week. Leave granted; debate adjourned. Senator WATSON(Tasmania)(3.23) —I move: That the Senate take note of the paper. I commend the report entitled `Australia's Plant Breeding Needs' by Professor Lazenby. However, it is somewhat unfortunate that this report was not accompanied by a government paper of support. The Government lost a great opportunity by not including a plant variety package within its recent economic statement to the Parliament outlining a series of measures which were designed to help the rural industry. This omission is unfortunate for a number of reasons. The Government cannot claim that it did not have the report in sufficient time to include recommendations in the package because the report was presented to the Government in February 1986. Therefore, I now call upon the Government to support Professor Lazenby publicly in his recommendations to implement a plant variety scheme at the earliest opportunity. The report is quite unequivocal in its support for plant variety rights. It is particularly important for my State of Tasmania, which has a very high dependence on horticultural industry. Professor Lazenby says that, on balance, the benefits for Australia stemming from a plant variety scheme are likely to outweigh considerably any adverse effects. The report goes on to state that it was neither desirable nor logical for Australia to stand aside from the mainstream of developed nations in the hope of providing some intangible benefits to Third World countries. The benefits of a PVR scheme are enormous. They include increased resources directed to plant breeding, better use of germ plasm, improved access to varieties which are bred overseas, better use of public plant breeding resources and improved integration of breeding with basic research and new developments in technology. It is vital that there also be a strong public plant breeding activity, that that activity be maintained and that it be guaranteed long term funding, because one of the characteristics of any plant breeding scheme is its very high cost and the long term nature of its programs. I think it is unfortunate that-the report acknowledges this-there is some evidence of declining State government support. But the universities, departments of agriculture and primary industry have a legitimate and continuing role in plant improvement programs, including the right to develop finished varieties. I think it is important that there be a strong public breeding program. It is also significant that this view is endorsed by the majority of breeders, who believe that royalties paid on public varieties should be returned for crop improvement programs. Such action would offer a real opportunity for providing tangible incentives for the public breeder. I think the following, which I quote from the report, is also important: . . . the relationship between the public and private sectors should be evenhanded. I call upon the Government at the earliest opportunity to implement a plant variety program and to introduce the accompanying legislation. Senator ARCHER(Tasmania)(3.26) —I commend the report entitled `Australia's Plant Breeding Needs' as a particularly well-presented and well-documented production. Regardless of whether people support or do not support plant variety rights, I believe it is absolutely essential that they read this document, and read it fairly carefully. The development of the argument in the report is very thorough. It has had the advantage of following many other reports, all of which seem to take a somewhat similar view but have not developed it to the same extent. It is another good report. It is very clear and very objective. There is still no way that Australians will be able to catch up on the lag that it has in agricultural areas unless it becomes involved in a plant variety rights scheme. Australia is falling behind and is likely to fall further behind. Our agricultural industries are being disadvantaged without a scheme of this sort. We have debated this question on several occasions in the Parliament since the Senate Standing Committee on National Resources originally carried out an investigation following the introduction of plant variety rights legislation. The matter has been going backwards and forwards. Senator Crichton-Browne —A good report, too. Senator ARCHER —It was an excellent report. Not a thing in the report now before us contravenes what was said in that standing committee report, but this report is better developed. It makes reference to more people. The bibliography is excellent, as are the interviews and the reference to particular products. Everything about this report shows the thoroughness with which Professor Lazenby has done the job. I too urge the Government to accept the fact that, on all the educated advice and all the industry advice that is available, plant variety rights is the path to follow. It is clearly stated in the report that using patents is not the way to go, but that a plant variety rights scheme is. I have been fortunate enough to go to the headquarters of the plant variety rights operation in the United Kingdom at Cambridge, to talk to the people there and see how their system works, how they keep their registers and so on. I believe that is the way we should head. If as Professor Lazenby recommends, we follow the New Zealand system, which is a slight modification of the United Kingdom system, I do not think we could do better at this stage. The breeding and developing of plants is an expensive and time-consuming business. I have dabbled in it myself, being interested in such things. I have also grown hybrid vegetable seeds by the methods outlined in the report. I see no reason why the people for whom I have grown plants should not have the benefits that go with the enormous amount of research that has been done. As it is they have no protection whatsoever. There is the question of pyrethrum in Tasmania, where it is the basis of an industry. One of the firms that has an interest in it has been working on it for about 10 years. It has no protection whatsoever after 10 years work, as was the case with those involved in the development of the opium poppy in Tasmania. The firm that produced that poppy was able to get it up to a highly productive stage, miles better than any other poppy in the world, but then another firm was able to come in and take over and achieve the benefits without having made any contribution towards it at all. The obstacles that have been raised by various people have been dealt with adequately. I suggest that anybody who has any reservations should read the answers to those in the report. The report, having taken into account the benefits and problems, clearly comes down in favour of the advantages. There are far more advantages than disadvantages. Accordingly, I call on the Government to get on and reintroduce the legislation that has been before the House previously, or to accept Senator Hill's Bill, the Horticultural-Plant Variety Rights Bill, which is still before the House. Let us get on and get a system into production so that we will have a plant variety rights system in operation by 1987. Senator HILL(South Australia)(3.31) —I also commend the report of Professor Lazenby, which in effect supports my private member's Bill, the Horticultural-Plant Variety Rights Bill, to introduce a system of PVR for horticulture in Australia. The benefits in that Bill, which are stated again in the report of Professor Lazenby, include permitting the import of stock which we cannot get into Australia presently because of the existence of PVR in so many overseas countries and the requirement that it be protected within those countries. Secondly, it would offer the substantial benefit of allowing protection, which would encourage private sector investment within Australia in the development of new plant varieties. The Senate will recall that some 100 horticultural organisations throughout Australia supported my private member's Bill and wrote to senators urging its support. Those organisations will be thrilled today with the report that has been put down by Professor Lazenby. The Senate will remember that the second reading of that Bill was carried, but with an objection from the Government that it wished to await the report of Professor Lazenby before it would state a firm position. The Government now has that report, which is positive. I will therefore be seeking to proceed with the Committee debate of my Bill. Now that the Government has the endorsement of Professor Lazenby, I trust it will see fit to support my Bill at its third reading. The record of the Government in this whole area has been one of delay and failure to face up to the issues. The Senate will recall the tactic of the Senate Committee consideration, which was one method of delaying the introduction of plant variety rights in Australia, although, fortunately and wisely, that Committee supported the introduction of a scheme. The second method of delay was to say that it should go to an independent inquiry, but for months the Senate awaited the institution of that inquiry. When it was eventually set up we had to wait for the detailed consideration of Professor Lazenby, but he has now reported positively. I suggest that the Government has run out of excuses and must now face up to the issue. It must give our horticulturalists a fair opportunity to compete with those who have better products overseas-products that have been developed under the protection of PVR. The Government's problem is with its left wing, which is ideologically opposed to plant variety rights, but that view is out of touch with reality. I regret that, at the time of the debate of my Bill, that was also the attitude of the Australian Democrats. My plea, therefore, is for the Government to give the Australian horticultural industry a fair go, to embrace Professor Lazenby's report and to support my private member's Bill which is presently before the Senate. Senator MACKLIN(Queensland)(3.34) —Professor Lazenby's report on Australia's plant breeding needs is a comprehensive survey of the context in which Professor Lazenby sees Australia's plant breeding today. I reiterate my Party's opposition to plant variety rights, which has had a long history in this place. Our view, upon reading this report, has not changed. Due to the shortness of time, I wish to raise only one item-the rehearsal in this report of the relationship between public and private breeders. There is a wish on the part of Professor Lazenby that government will not rein in the expenditure on public breeding. That wish will not be fulfilled. It has not been fulfilled in any other country where PVR has been instituted and the rundown of public breeding is almost an inevitable result. An added difficulty is occurring at this time, which has not occurred previously but which is starting to appear particularly in the United States of America, with regard to the funding of public instititions. By and large the total private contribution, while it is a relatively small proportion of the public administration of agricultural research funding, nevertheless has become a very large factor in public institutions such as universities, particularly with regard to specialised contracts. In the United States the grant system provided by the private companies is now seriously distorting the flow of information. This particular objection comes not only from public plant breeders; in the past two years, there has also been much more vocal opposition from private plant breeders. In other words, the delayed publication of results, the inability to use those results in international conferences for the dissemination of information, and the delays which are occasioned by the patenting process, are major inhibitors to the research which must proceed apace. The new element in this whole context, which has not been recognised sufficiently by Professor Lazenby's report, is the advent of biotechnology. There has been a revolution in plant breeding within the past three years such that it has changed from normal plant breeding through the sexual activity of plants, in terms of the normal lineage operation, to a genetically based biotechnology industry which can go through many generations in the space of a short period. Some quite extraordinary operations are now occurring in the biotechnology industry in the United States. According to two Chicago-based consultancy firms which operate in the biotechnology industry, within the next 10 years the market will be in the order of $50 billion to $100 billion. We are not talking about a small market; we are talking about a very large market, and one which, unfortunately, is having adverse effects on the farmers. The representations of farmers before the Congressional Committee on Agriculture have illustrated that they have ceased to be the prime consumers of the products produced by plant breeders. Farmers are now secondary consumers who are no longer dictating the market; they now merely have to pick up the dregs of the market as it moves into other areas. For example, the development by a number of companies of seeds encased in particular chemicals has prevented the usage of those seeds with anything other than products of those particular companies. It is clearly not possible in this debate to document the rapid changes that have taken place recently in the United States, but hopefully that may become possible in a fuller debate. Senator BROWNHILL(New South Wales)(3.40) —I welcome this report `Australia's Plant Breeding Needs' and shall make a couple of very brief comments about it. There must be incentives for people to put in time and effort to breed better varieties and be rewarded for it, and that is what the report recommends. I believe that it is now up to the Minister for Primary Industry (Mr Kerin) to show his understanding of the rural sector and introduce a plant variety rights scheme which would be one way to help improve the future of agriculture in Australia. I know that Senator Boswell wants to make some comments on this matter so I will leave my remarks at that. I point out that it is also up to the Australian Democrats to support Senator Hill's Bill in this House so that we get a PVR scheme for Australia. Senator BOSWELL(Queensland)(3.41) —As a member of the Senate Standing Committee on National Resources, which was responsible for bringing down the plant variety rights report, I welcome Professor Lazenby's report `Australian Plant Breeding Needs' and I am sure that it will be welcomed by every grower organisation in Australia. It is a far reaching report which recommends that all varieties of plants, cereals and seeds be brought into line with plant variety rights legislation. I am disappointed that the Australian Democrats find that they are unable to support this report. They are certainly flying in the face of every grower organisation in Australia. I wish to congratulate Professor Lazenby on the report he has brought down. Debate (on motion by Senator Messner) adjourned. Senator REID(Australian Capital Territory) —I present a report on behalf of the Joint Committee on the Australian Capital Territory relating to proposals for variations of the plan of layout of the city of Canberra and its environs, eighty-seventh series. I also table the minutes of the proceedings. I seek leave to incorporate in Hansard a statement that goes with the report in which it will be noted that of the 16 items we examined as variations to the plan, there were significant representations on four. We have approved all the items but the statement I seek leave to incorporate deals specifically with those four. Leave granted. The statement read as follows- The report I have just tabled reports on the sixteen items in the 87th series of variations to the plan of layout of the city of Canberra. The Committee recommends approval of all sixteen variations. The Committee, in considering these variations, examined twenty one submissions and took evidence from seventeen witnesses appearing as individuals and representing various organisations. The cost involved in the proposals dealt with in this report is approximately $6 million. I wish to comment on only four of the variations. Variation 9 provides the road layout for the Bruce Ridge West Housing estate. An objection received by the Committee emphasised the need to oblige developers to comply with development conditions on the site. It was alleged that even though the NCDC indicated significant effort was made to ensure a high landscape quality, such development conditions were difficult to enforce. The Committee hopes that with the impending transfer of land administration to the NCDC, development conditions will be closely monitored. In approving the variation the Committee urges the NCDC to examine the possibility of increasing the size of cluster developments to take full advantage of the housing potential on the site. Variation 12 proposes the provision of a trunk cyclepath from Streeton Drive in Holder to the existing Yarramundi Reach cyclepath at Lady Denman Drive. The Committee received an objection to the alignment of the proposed cyclepath from the Canberra Lakes Pony Club. The Club was concerned that the route would prevent access to an area known as the `sandpit' and that the proximity of the cycleway to the cross country jumping course would create potential hazards. The Committee noted that the NCDC had made various concessions to the Club, including revising its original alignment proposal, undertaking to erect a length of equestrian fencing and indicating its willingness to construct an alternative sandpit area in another location. The Committee was also made aware that most of the area used by the Club, with the exception of two small blocks on short-term lease, is unleased Commonwealth land. The Committee believes the rights of other groups wishing to enjoy the visual and scenic character of the river corridor must be recognised. It considers the proposed alignment to be appropriate and approves the variation. Variation 14 provides for roads off Learmonth Drive and Kambah Pool Road in Tuggeranong, to permit the area to be developed as a Golf Course and associated housing. Objections received by the Committee focused on anticipated traffic problems and potential environmental hazard to the Murrumbidgee River. The NCDC, on request, supplied the Committee with traffic estimates which indicate that the development will not generate a marked increase in vehicle numbers. The Department of Arts, Heritage and Environment has also examined the proposal. It has written to the developer of the Murrumbidgee Country Club setting out measures and conditions which should be included in the development to protect the Murrumbidgee River and its surroundings and to maintain the safety and amenity of the existing residential area adjacent to the proposed golf course. The developer has indicated he will comply with these requirements. The Committee wishes to be briefed at a later date on progress on the development and the extent to which the development conditions have been complied with. The Committee is anxious to ensure that there be a green belt maintained at the residential end of the golf course with no further blocks developed at a later date. It would also like to ensure that there be no concessional element in the lease price due to the location of the residential development in the same area as the golf course. The Committee approves the variation, noting NCDC planning intentions to develop the whole area for residential housing if the golf course proposal were not to proceed. Variation 15 provides for a network of roads off Bugden Avenue in Fadden to enable the area to be developed for residential blocks, water pollution control ponds and open space. Due to significant local resident interest in this proposal, the Committee undertook a site inspection, with NCDC officers, residents representing the Fadden Residents Action Group and individual residents in attendance. The Committee received an extensive submission from the resident action group as well as several individual submissions. Submissions generally opposed the proposal, although two favoured the development. Major concerns raised in objections related to inadequate public notification and inaccurately conveyed information regarding the extent and exact location of the development. A second major problem identified was that of traffic flows and access of vehicles, including buses, to existing roads opposite the development and into the development site itself. In relation to the provision of information about development intentions to residents, the Committee is satisfied that initial purchasers were made aware that at some future time Section 349 would be developed in part. Problems arise in relation to subsequent purchasers where estate agents may not have provided this information. However, the Committee is of the view that it is the responsibility of buyers themselves to inquire into the nature of surrounding areas before making a purchase. There appears to be substance to the claim that signs marking the designated Mount Wanniassa-Canberra Nature Park were moved and may have misled residents about the exact location of the Nature Park and thus the area available for development. However, the area originally designated for development has been reduced and the total area available for recreation and open space is significant. The Committee is concerned that the volume of traffic already generated in the area will be compounded by vehicles arriving and leaving the proposed residential area. It believes that a roundabout should be constructed at the Sternberg Crescent/Bugden Avenue intersection to alleviate some of the major traffic problems in the area. Recognition is also given to the restricted footpaths on Bugden Avenue and the Committee supports the Commission's proposal to construct a pedestrian footpath along the western section. Further support is given to a proposal to increase the width of the Collector Road in the proposed new sub-division from 7.5 metres to 9.0 metres to allow buses to operate up Bugden Avenue from Sternberg Crescent. The Committee recognises that opposing this proposed development would be seen as a precedent for preventing the total suburban land release program and would thereby impede the Commission's attempts at urban consolidation. This would be contrary to the Committee's thinking on the future development of land in the ACT. The Committee approves the Variation. Motion (by Senator Hamer) agreed to: That leave be given to introduce a Bill for an Act to repeal Part VI of the Navigation Act 1912, so as to remove the obligation for ships to obtain a licence or a permit to engage in coasting trade, and to repeal other sections of that Act which relate only to the coasting trade. Bill presented by Senator Hamer, and read a first time. Senator HAMER(Victoria)(3.46) —by leave-I move: That the Bill be now read a second time. I seek leave to have my second reading speech incorporated in Hansard. Leave granted. The speech read as follows- This Bill proposes to repeal Part VI of the Navigation Act. Part VI comprises a set of rules which apply separately to interstate shipping, making coastal shipping separate and distinct from overseas shipping. Under this part of the Act, interstate trade can only be undertaken by ships registered in Australia or by a foreign ship operating with similar crew numbers and similar crew conditions to those applying to Australian ships. The only situation in which a foreign ship may obtain a permit to operate in the coasting trade without meeting the stringent Australian crew requirements is for a single voyage where no suitable Australian ship is available for that particular freight movement. To ensure that only Australian ships or foreign ships meeting the Australian crew requirements operate in the coasting trade, a licence or permit is issued for ships to operate this trade and no ship can operate in the coasting trade without this licence or permit. This Navigation Amendment Bill will repeal the onerous and iniquitous requirement for a licence to operate in the interstate trade of Australia. For what this Part VI has achieved is a monopoly over the coasting trade, a rort for the seagoing unions in Australia and a high cost service for which all Australians have been paying dearly for since 1921. Why do we have a Navigation Act and what were the original intentions of the Act? The Australian Navigation Act came into being in 1912. It was based on the British Merchant Shipping Act of 1894 adapted to Australian conditions. The provisions of the Act underpin almost all aspects of the conduct of Australian merchant shipping. The primary objective was to build up an Australian Mercantile Marine, but in the context of an `even-handed attitude' towards shipping. This `even-handed attitude' was made quite clear by the Attorney-General of the time (Billy Hughes), when he said: `The shipping industry must not be treated differently from any other. We have to consider how far our policy can be applied without materially interfering with our commerce and the convenience of our travelling public or without attempting a policy of differential treatment towards the various maritime nations.' The Navigation Bill was debated from September 1910 until the Bill finally passed both Houses in December 1912. Both Houses were divided on the question of the coasting trade. The arguments for the protection of the coastal trade will be only too familiar: `It is of vital importance that Australia build up its own Mercantile Marine and thereby have a maritime presence in the Pacific area.' `Australia has the highest standard of wages and living conditions in the world.' (Remember that this was 1910; we are now fourteenth and dropping in the world list.) `These standards must be maintained at all costs.' `Foreign vessels in competition with our own are heavily subsidized by their own Governments.' `Most other countries also protect their coastal trade.' One other argument may not be so familiar today, although it will evoke memories for many of us: `Crews operating in the coastal trade should be white and not coloured, because coloured crews were not treated with the same wages and conditions as white crews.' But there was some sanity in the Parliament at that time and the counter arguments ran as follows: `Protection of the coastal trade will increase the working cost of shipping around Australia.' `The community will suffer, because if you increase the expenditure of shipowners, they will have to charge higher rates for passenger fares and the carriage of goods, until the increase comes home to every consumer.' `Parliamentary interference with the laws of political economy hit back in boomerang fashion upon those responsible for it.' And to quote more fully from a speech in 1912 by Mr William James McWilliams from Tasmania: `Personally I regard the Shipping Federation of Australia as the greatest monopoly in Australia; and I believe the whole basis of this Bill is to still further strengthen and buttress that monopoly, and wherever the monopoly does not exist already, to make it a sure and certain chain round the whole Australian coast.' He went on to forecast that the Shipping Federation and the Labour Unions would make cosy deals between themselves-the former to have an entire monopoly without competition on the Australian coast and the latter to have such rates of pay and wages as they demanded-and the public take the hindmost. He concluded his speech by saying: `This Bill strikes at the very root of commerce. It is based on a law which has created, and always will create, monopoly, and which will always hand over the public to two factors-the Shipping Federation and the great organized trades unions. . . By shutting out competition we shall throw the people body and soul into the hands of the Shipping Combine. Under this Bill there will be built up a huge monopoly which will suck the very life blood from the people of Australia who are largely dependent on commerce by sea. We shall be hampering enormously the primary producer by making him pay increased freights and charges.' Sadly he was absolutely right, and his Cassandra prophecies haunt us today. Although the Navigation Bill passed both Houses in 1912, it was not proclaimed until 1920-and then only in part. Fifty-two clauses and two schedules were proclaimed to come into operation from the 2nd March 1920, but that proclamation was repealed and the Act did not come into full operation until 1921. Part VI dealing with the Coasting Trade came into force also in 1921, but it was proclaimed in a web of dishonest publicity: it was said that this was legislation which supported competition in the coastal trade. `Any ship-Australian or foreign-could be licensed to engage in the coasting trade provided that it complied with certain conditions.' Certainly, the cost of the licence itself was no bar for a foreign ship. The licence is issued for a nominal fee. In 1981, for instance, a typical licence cost about $5.00. What, then, was the crippling and unacceptable bar to foreign ships in the coasting trade? It was the set of conditions attached to the licence: Seamen had to be paid at the current rates of pay operating in Australia; Ships had to operate with Australian manning levels and Australian conditions and accommodation requirements; If a library was provided for passengers on board, the seamen had to be permitted to use the library as well. These conditions still apply today-sixty-four years later-to our cost. Australian coastal shipping has to be operated at Australian award rates, with Australian manning levels and Australian conditions of crew accommodation. Unless these conditions are met a licence will not be issued to a foreign ship to operate in the coastal trade. As all honourable senators will guess, no foreign ship-owner is mad enough to supply two crews for every ship, or carry almost double the number of crew required to run a ship efficiently, or provide rates of pay and standards of accommodation far above those provided by any other country in the world except Australia, including countries such as Sweden or the Federal Republic of Germany with far higher standards of living than ours. It is no wonder that a library is needed to occupy Australian crews on board, since their duties include almost no ship maintenance or repairs. Australian ships have to spend costly additional time in dockyard hands to do maintenance tasks which are done as a matter of course by the crews of other nations' ships. These are the conditions which have successfully reserved for the last sixty-four years the coastal trade almost exclusively for Australian-owned, Australian-registered or chartered vessels and Australian crews. There is one exception, as I mentioned earlier, to the licence conditions for the coastal trade in Australia. The requirement for Australian conditions and manning levels can be waived for the issuing of a single voyage permit. The Minister for Transport may issue a single voyage permit when there is no suitable licensed vessel available for the movement of a particular cargo. These permits are fairly rare and most of them have been issued for the movement of LPG. I include a Table which shows the total number of single voyage permits issued in recent years; this Table itemizes the number of permits issued for the movement of different types of cargo, including LPG. CARGO CARRIED UNDER SINGLE-VOYAGE PERMITS (SUMMARY) 1981-82 Ship- ments Tonnes 1982-83 Ship- ments Tonnes 1983-84 Ship- ments Tonnes 1984-85 Ship- ments Tonnes LPG ... 66 50,212 59 46,916 15 11,339 3 1,807 Petroleum products ... 5 96,391 . . . . . . . . . . . . Crude oil ... 1 39,934 . . . . 2 139,225 . . . . Tallow ... 6 5,423 1 1,363 2 2,215 1 400 Caustic soda ... 4 37,300 2 28,000 2 33,993 6 69,407 Sulphuric acid ... . . . . . . . . 2 18,485 2 9,955 General cargo ... 7 7,044 7 3,404 2 30 6 510 Toluene Di-isocyanate (TDI) ... . . . . 4 136 . . . . . . . . Explosives ... 1 98 1 197 . . . . . . . . Phosphate ... 2 51,334 . . . . . . . . . . . . Molasses ... 6 25,887 . . . . . . . . 3 16,500 Bricks and timber ... 2 11,307 . . . . . . . . . . . . Aqua ammonia ... 1 3,908 . . . . . . . . 2 8,535 Newsprint ... 1 1,700 . . . . . . . . . . . . Prawns ... 4 285 . . . . . . . . . . . . Total ... 106 330,823 74 80,016 25 205,287 23 107,114 Source: Department of Transport, Annual Reports. As can be seen from the Table the number of shipments for LPG has dropped from 66 in 1981-2 to three in the last financial year, and the total number of shipments per year has dropped from 106 in 1981-2 to 25 in 1983-4 and 23 in 1984-5, and perhaps that is the average number of shipments for the years to come, unless action is taken to deregulate the coastal trade. When Part VI of the Navigation Act was finally ratified in 1921, there was very little competition from other forms of transport, such as road and rail. At that time rail was not used for any purposes other than intrastate, and this situation lasted until World War II; by 1962 a standard gauge made rail a viable option between Victoria and New South Wales. There was also no competition from road transport - the roads either did not exist, or were not good enough to take heavy traffic safely and quickly between States. After 1954, the Hughes and Vale Decision had the effect of eliminating State taxes on road transport and as the highways were improved road began to be a viable interstate option to shipping. But in the 1920s there was no competition to the shipping of goods and people between States by sea. Shipowners, at that time, could and did pass the extra costs imposed by the Australian conditions and manning levels in coastal shipping on to the consumers and the users of coastal ships. By the 1970s there was a general decline in shipping services until now coastal shipping declines further and further every year, while rail and road are conveying more and more goods between States. I include a Table showing total domestic freight tonnage for road, rail and sea: it is quite clear that road freights are increasing dramatically, that rail keeps increasing also, but shipping is declining rapidly. DOMESTIC FREIGHT, TONNES CONSIGNED BY MODE (millions) Year ending 30 June Road (a) Rail Govern- ment (b) Non- government (c) Sea (d) Air 1971 ... 720.5 79.0 72.6 na 0.103 1972 ... na 81.6 78.7 44.6 0.102 1973 ... na 83.8 94.6 43.3 0.104 1974 ... na 87.3 115.1 46.3 0.125 1975 ... na 92.7 127.8 46.4 0.120 1976 ... 756.4 96.0 116.7 47.5 0.117 1977 ... na 99.5 123.6 47.2 0.118 1978 ... na 98.6 121.2 48.0 0.132 1979 ... 912.6 102.5 114.1 47.4 0.141 1980 ... na 117.1 123.2 48.1 0.145 1981 ... na 127.3 124.1 46.1 0.142 1982 ... 950.1 127.3 121.4 42.6 0.153 1983 ... na 110.5 37.5 0.157 p Source: Bureau of Transport Economics: Transport Outlook Conference 1984: Transport outlook to the year 2000 What went wrong with Australian coastal shipping? The terms of Part VI of the Navigation Act gave a monopoly to Australian ship- owners (and, de facto, to Australian maritime unions) in the coastal trade of Australia. There was no competition from cheaper overseas shipping. Shipowners have had little or no control over costs-the unions demanded and, by and large, obtained everything they asked for; they were bought off again and again. It was the classic case of a union monopoly and it has resulted in the highest cost shipping service in the world. The cost of labour escalated beyond the means of shipowners and shippers, so when new technology became available in the 1970s onwards, it was too expensive to introduce or was outlawed by the maritime unions. For instance, when the rest of the world was using more efficient drive-on/drive-off ferries, the ANL was, and still is, running vehicle-deck ships which need specialized equipment to straddle vehicles off and on board. The costs of loading and unloading these vehicles has been estimated to be 40% higher than they would otherwise be on some sort of RORO vessel. The Tasmanian Government now owns a RORO vessel, the Abel Tasman, and it will be interesting to compare the cost of loading and unloading this vessel with the other types of ANL vessels, when these figures become available. Except for the Bass Strait trade and some bulk cargo movements, coastal shipping in Australia is dying. True, BHP has recently ordered three new ships into their service with reduced manning levels, but their shipping costs are still high in comparison with overseas ships if they could be used on similar runs. And BHP has the ability to integrate overseas and coastal shipping to offset some of their high costs; for instance their new ships will be used on the coast for only one leg of a triangular run between Australia and Japan. Who bears the high cost of Australian coastal shipping? In the beginning, the high cost of Australian coastal shipping was passed on directly to the consumer by the shipowner. Nowadays the costs are borne by the shipowner in part, the shipper in part, but ultimately the cost is borne by the consumer and the taxpayer. The consumer and the taxpayer pay for the higher price of steel from BHP, the higher price of goods which are shipped from State to State, the extra subsidies provided by the Government to shore up the Australian National Line in its present critical financial situation, the cost of industrial disputes, the subsidies paid to Tasmania in the Freight Equalization Scheme, and so on. I keep harping on the high cost of coastal shipping to the community. Let me give you some examples of these high costs and explain how they might have been avoided. A moment ago I mentioned the carriage of LPG in foreign ships by special permit. Most of those permits were issued to foreign ships carrying LPG on the Tasmanian run. But since 1983, LPG has been carried in an Australian flag carrier with disastrous results for Tasmania. LPG is handled by three firms in Tasmania: CIG Energy, Boral and Mobil. Early in 1983 Boral began to use an Australian vessel, the Island Gas, as a carrier for LPG on the Tasmanian run. This vessel at 6,033 dwt is larger than the foreign vessels previously used-with a larger crew of 23 as opposed to less than 16 on the foreign vessels used (and of course, two crews a year)-and it is much more expensive to operate. Because LPG is a bulk cargo, transporting LPG does not qualify for any subsidy under the scheme of equalizing the cost of transport fuels throughout Australia. Since the introduction of the Australian flag ship into the Tasmanian LPG run, the new shipping arrangements have increased the cost of transporting LPG to Hobart by 75%: the cost of this transport has risen from $80 to $140 per tonne, or from 4 cents a litre to 7 cents a litre. And there is no prize for guessing that the consumer pays this added transport cost. To show how the price of LPG has risen in Tasmania, I include a Table showing details of CIG Energy retail prices for LPG in Hobart: CIG ENERGY RETAIL PRICES FOR LPG IN HOBART Date Wholesale Price Retail Auto LPG in Hobart Retail Increase (cents/litre) (cents/litre) (cents/litre) December 1982 ... 11.2 24.3 January 1983 ... 12.8 26.5 2.2 (a) June 1983 ... 12.8 29.9 3.4 (b) July 1983 ... 15.5 32.6 2.7 (a) November 1983 ... 15.5 33.0 0.4 (c) January 1984 ... 15.5 34.0 1.0 (b) (a) Commonwealth adjustments of wholesale price. (b) Increases in shipping costs. (c) Increases in distribution costs due to 4.3 per cent national wage increase. Source: Parliamentary Library, Legislative Research Service: Notes on LPG pricing in Tasmania, February 1984. The relevant increase in the price is that between January 1983 and June 1983. This was a rise of 55.5% wholly contributable to the increase in shipping costs. At the same time on the mainland, there was also a rise in the price of LPG, but that rise was of the order of 28%-nothing like the enormous price hike of 55.5% in Tasmania. Another example of a higher cost commodity because of coastal shipping costs is iron ore and steel. The Industries Assistance Commission estimated in 1981, in their draft report on the Iron and Steel Industry, that BHP's coastal shipping operating costs were between $20 million and $25 million higher each year than if BHP had been free to use foreign flag vessels from Japan and even higher each year if they had been free to use foreign flag vessels from Europe, say, Sweden or the German Federal Republic. The same report revealed that the freight cost per tonne of iron ore shipped from Port Hedland to Japan is about half the cost per tonne of the same ore shipped from Port Hedland to Port Kembla. Sea transport constitutes about 8% of the total costs of BHP's Steel Division. If these shipping costs could be halved by using an overseas shipping company from Sweden or the German Federal Republic, the total production costs for producing steel by BHP could be reduced by about 4%. Think what that would mean to the cost of Australian steel in this country. Furthermore the unit cost of steel transported from Port Kembla to Perth is 44% higher than from Japan to Perth. It makes it difficult to want to ``Buy Australian'', no matter how patriotic you are. The most iniquitous example of an unnecessary high cost is Christmas Island phosphate. Australian shipping has all but wrecked the Christmas Island phosphate trade. The Australian Phosphate Commission ships about 900,000 tonnes per annum of phosphate rock from Christmas Island, Nauru and Townsville to the manufacturing centres. Unfortunately for Christmas Island, it is considered to be part of the coast of Australia, so vessels operating the phosphate trade have to engage Australian crews under Australian wage rates and conditions. What is the result? An exorbitant addition to the cost of phosphate extraction and transport. In 1983, it was calculated that if foreign ships or Australian ships operating at Scandinavian cost levels were used on the Christmas Island/Australia run, there would have been a cost saving of between $16 and $20 per tonne of phosphate rock. But it goes further than that. Phosphate rock shipped from Christmas Island to Australia costs $30 per tonne while phosphate rock shipped from Florida in the United States of America to Australia costs only $16 per tonne. And it must make an Australian farmer weep when Christmas Island phosphate can be shipped to New Zealand for about $10 per tonne. Who pays this double or treble cost for shipping phosphate from one part of Australia to another? The manufacturer, in the first instance, the farmer in the second, and the Australian public in the end. After the costs of manufacture, delivery and spreading the cost of single superphosphate fertilizer to the farmer is $123 for Christmas Island phosphate and $111 a tonne for Florida phosphate. What is the solution for Christmas Island phosphate? It would regain its competitive edge if it were shipped at world freight rates. At least then it would be able to compete with a world supplier such as Florida. There are, of course, a great many examples of the effects of the high price of coastal shipping and most of these costs are attributable to Australian manning levels and conditions. But they are not the only problem for coastal shipping or, in fact, any shipping in Australia. There is another problem which will have to be considered and dealt with very soon and that is the high cost of loading and unloading at ports in comparison with end-handling for road and rail. I include a Table showing unit freight rates by sea, rail and road. INDICATIVE UNIT FREIGHT RATES BY OPERATOR FOR MAJOR INTERSTATE ROUTES-DECEMBER QUARTER 1980 (a) Route Sea (b) Container Rail (b) RACE Container Overseas Container Road Freight Forwarder Melb.-Syd. ... 1.0 0.82 0.79 0.93-1.32 1.04 Melb.-Bris. ... 1.0 0.89 . . 1.0-1.3 1.02 Melb.-Perth ... 1.0 . . 1.16 1.41 1.11 Syd.-Melb. ... 1.0 0.46 0.68 0.75-0.89 0.93 Syd.-Bris. ... 1.0 0.67 0.64 0.89-1.03 0.89 Syd.-Perth ... 1.0 . . 1.21 1.39 1.11 Bris.-Melb. ... 1.0 0.7 . . 0.86-1.0 0.84 Bris.-Syd. ... 1.0 0.59 0.59 0.78-0.81 0.85 Bris.-Perth ... 1.0 . . . . 1.48 1.46 Perth-Melb. ... 1.0 . . 0.84 1.03 1.19 Perth-Syd. ... 1.0 . . 0.69 . . 0.64 Perth-Bris. ... 1.0 . . . . . . 0.86 (a) Road and freight forwarder rates adjusted to December 1980 using real domestic freight rate indices from DoTA (1981). Sea and rail rates are terminal-to-terminal. Road rates may be terminal-to-terminal or door-to-door. Higher rates quoted are door-to-door. Freight forwarder rates are door-to-door with freight being consigned by road, rail or sea. (b) All container rates converted to an equivalent tonnage rate by assuming a cargo mass of 15 tonnes. Sea rates based on 6.1m container with exception of Sydney-Perth and Brisbane-Perth routes which assume consignments of 15 tonnes. Source: Industry Sources, BTE 1979b, 1981 As honourable senators will observe, the Table shows that rail is considerably cheaper over all in comparison with sea transport, and road is cheaper on many of the interstate runs, especially between Sydney and Melbourne and between Sydney and Brisbane. I include another Table which shows that a high proportion of the shipping costs are land-based costs-the cost of loading and unloading. COST STRUCTURE FOR SELECTED COASTAL CONTAINER AND BULK SHIP SERVICES (a) (percent) Cost category Ship type and route (b) 100 TEU container ship Syd.-Perth (c) 365 TEU container ship Burnie-Melb. (c) 10 000 DWT bulk ship Pt Kembla- Perth (d) Fixed Costs Ship ... 17 9 28 Containers ... 5 2 Operating (manning, insurance, administration, maintenance and stores) ... 14 13 24 37 24 52 Sea-Based Costs Voyage costs (fuel) ... 13 4 16 Voyage charges (port and navigational charges) ... 6 9 10 19 12 26 Land-Based Costs Stevedoring charges ... 33 47 22 Land transport charges ... 10 15 Container cleaning ... 2 2 45 64 22 TOTAL ... 100 100 100 (a) Based on calculations in 1981 dollars, for door-to-door container service and terminal-to-terminal bulk operation. (b) Some totals do not add exactly, due to rounding. (c) 80 per cent utilisation each way. (d) 100 per cent utilisation one way, return in ballast. Source: Bureau of Transport Economics Honourable senators will observe that stevedoring charges are the highest single item in the cost structure of container shipping, and a fairly high item for bulk shipping. You will also observe that there is a container cleaning item which amounts to 2% of costs for container ships. This is just one example of an unnecessarily inflated cost item. It is required that the terminal staff do a rough sweep-out after containers are unloaded; the cost is inflated because the cleaners may go on board on the afternoon of the day on which unloading is completed, but rarely do anything until the following day, thus causing unnecessary delay to the ship in port. Coastal shipping companies suffer from appallingly low productivity at Australian ports, which have the hard-won but unenviable reputation of being the slowest in the world. It takes two days to load or unload 300 containers in an Australian port - it takes four hours using identical equipment to handle 300 containers in Hong Kong, six hours in Singapore and never longer than one day in a European port. But this is a problem for both our coastal and overseas shipping, and is one we must urgently solve if we are to become competitive in a world which does not owe us a living. To emphasize the absurdity of our present waterfront solution, if deregulation of the coastal shipping trade were to take place, it might seem to the innocent to be feasible to take advantage of an overseas vessel for backloading empty containers from Sydney to Perth or Sydney to Brisbane at backloading rates instead of sending empty containers around this country by rail. But if a container vessel unloads containers at Sydney and next requires them in Brisbane, it costs $280 per container to reposition the empty container by rail from Sydney to Brisbane. But to carry the same empty containers in one's own ship between Sydney and Brisbane costs $572 per container. Why? Because it costs $236 to load each container back onto the ship at Sydney and another $236 to unload the container at Brisbane. This is an absurd distortion of the economic use of our transport facilities. It is obvious that coastal shipping is in an appalling state. Something drastic has to happen and it has to happen quickly. So what is the solution for Australian coastal shipping? Most people who are truly concerned about the high cost structure of Australian coastal shipping strongly advocate complete deregulation of coastal shipping, permitting foreign vessels to carry coastal cargoes without the requirements of Australian standards of manning and conditions. What would be the gains to Australia if Australia adopted an `open seas' policy by which any user of coastal shipping would be free to purchase the services of a shipping operator of their choice? Let me emphasize that there is no doubt that the gains to all Australians would be enormous. First, every one agrees that the cost of Australian coastal shipping is extraordinarily high. ANL's coastal services could not possibly survive without subsidies, especially the Tasmanian Freight Equalization subsidy. These subsidies cost Australia $30.3 million in 1984/5. If coastal shipping were opened up to all comers, it is certain that ANL's general cargo services would have to become rapidly more efficient and less costly to survive. And if overseas shipping picked up these services and performed them at a cheaper rate, the gain to Australia would be the price of the subsidies, which is the only inducement at present for ANL to keep on a general cargo coastal service. The result would be a saving to Australia of at least $30 million per year. Although there would certainly be cost savings in all areas of coastal shipping in Australia, some savings, such as the saving in subsidy, would be considerable, and others would be less; but all savings add up in the end. For instance, administrative costs might be further reduced in face of competition from overseas ships. Every ANL report indicates that the managerial staff levels are too high, and I have been pleased to notice that there have been strenuous efforts to make some reductions in administrative staff in recent years. There would also be some saving in fuel costs as Australian ships moved to compete with the more fuel efficient overseas vessels. There is already some progress in Australia towards replacing existing tonnage from the older and less fuel efficient ships to newer, smaller and more efficient ships, but ANL still has a number of the less efficient and therefore more costly ships on the coastal run. There is also a possiblity of cost savings through greater flexibility in the use of ships, which is likely to occur through competition from overseas ships. For instance, it is possible that Australian coastal ships might adopt the flexibility of the ABC Containerline vessels which carry bulk cargoes and containers in combination. Many bulk carriers operating around the Australian coast at present often operate with certain legs of their voyage in ballast. By the combination system, they could operate bulk on some legs and container on others. This could have enormous potential for Australian overseas trade, because it is eminently suitable for Australian ships to concentrate on bulk cargoes on outward voyages and on containers on inward legs. But the biggest savings would undoubtedly come in the excessively high cost area in Australian shipping - manning and conditions. There would have to be a speeding up of the present glacially slow progress in crew reductions. Remember that the cost of manning and running an Australian ship is about twice the cost of running a Swedish or a German ship, and remember that Australia runs two complete crews for every one of its ships. The latest estimated cost by the head of ANL for Australian crews is $100,000 per year per crew member. Therefore every crew member saved per year is a saving of $100,000 per year. Immediate cost savings can be achieved even now on Australian ships if certain services on board ship are radically altered; bedmaking services could be dispensed with, and cafeteria style catering could be introduced without reducing living standards on board ship, and the result would be a saving in the cost of steward services for the crew. In a total crew of between 31 and 37 on an Australian ship, cooks, stewards and crew attendants account for 8 of these crew. If this number were reduced by at least two or three, in line with the number of service crew on a Swedish or a German ship, that would represent a saving of $200,000 or $300,000 per ship per year. Two things have to be considered in this high cost area of Australian manning. First, existing ships in the Australian fleet, which is the majority of the total Australian fleet, have always operated at historically high levels, dating from the very beginning of the Navigation Act back in 1911. And historically it has proved almost impossible to reduce the crew levels on these ships. I include a Table which will show the crew levels for all Australian ships at the present time. As honourable senators will observe, the ships marked with an asterisk have had no reduction in crew numbers despite the Crawford recommendations nor the stated aims of Captain Bolitho of the ANL. And remember that even a reduction of one crew member represents a saving of $100,000 per year. Secondly, there are newer ships being introduced into the Australian coastal run, such as the three new ships for BHP, and these will be manned with smaller crews, roughly 26 for each ship - or that is 52 a year for each ship - and that does represent a reduction of about 6 to 8 crew members for each ship. As shipping tonnage is replaced there is no doubt that there will be some reduction in crew numbers with the result of a considerable cost saving for every ship. But in both cases of the older ships and the newer ships, there has to be a more radical and drastic reduction overall in organization and, therefore, the number of crews for each ship. Overseas lines, especially the European lines, are moving towards a more complex system of crewing; they are moving away from the craft classification of crew towards a general purpose crew with a complete integration of deck room and engine room ratings, so that each crew member can perform a wider range of tasks. This integrated crew system is close to becoming operational in European ships, and Australia will simply have to move in the same direction to compete adequately with overseas shipping. And there is no doubt that only the presence of overseas shipping in competition in Australia will force shipping management and unions to take the first positive steps towards a new style of crewing in Australia. Every available report and document dealing with coastal shipping in Australia arrives at one conclusion: `There is no doubt that if cabotage were abandoned in Australia coastal shipping, major savings in the cost of domestic sea transport could be realized'. And the greatest area of savings are to be achieved in manning. I cannot repeat too often, that a saving of one crew member represents a saving of $100,000 per year. In addition, if any user of coastal shipping were free to purchase the services of a shipping operator of his choice, oil companies would be able to reduce their costs by integrating their Australian vessels into their own overseas fleets and operate them under a foreign flag. As a result, Tasmania could have cheaper LPG as in the years before 1983. Some overseas flag vessels would probably enter the coastal bulk ore trade, and BHP could take advantage of that to reduce their steel costs. It is also possible that some Australian companies would purchase an interest in overseas shipping companies to maintain their own carrying capacity on the coast and reap the benefits of the lower cost overseas carriers. At last the Australian maritime unions would be forced to do something about a real reduction in manning levels and crew costs. Despite all the rhetoric of the Crawford Report and the Labor Minister for Transport, Mr Morris, there has been no substantial reduction in the number of seamen and the manning costs for each Australian ship since 1980. Technical changes in ship construction and operation in other parts of the world have produced very large bulk carriers with manning levels of 50% of what they were a few years ago. There is also a variety of new efficient cargo carriers as well as container vessels operating with reduced crews. But what are we doing? There has been some negotiation between the ANL management and the unions, because the five maritime unions which represent the seagoing 58% of the ANL workforce did agree to reduce ship manning levels by a total of 81 berths across the fleet. But what were the terms of this negotiation? No further manning reductions to take place on current ANL vessels after the reduction of 81. So the Crawford proposals have come to nothing - as I long suspected and have constantly stated here in this Parliament. The unions agreed only to a minimal reduction in crew levels, so that they could stand back and say: `Look, what good fellows we are!'. But after that, it is `hands off' further reductions. So the rest of the world will go on producing efficient ships efficiently run with small and highly productive crews and we will look on with our large crews - and two of them for every ship - and have no hope of competing - and the community will have to go on paying for this incompetence and union greed. One problem of deregulation is the possibility of entry into the coastal service of Flag of Convenience (FOC) ships. But is that really a problem? By and large the less desirable FOC ships - the so-called `rust buckets' - do not attempt to come to Australian ports, because it is well known that Australia imposes stringent safety regulations on any ship entering Australian ports. In the latest Annual Report of the Department of Transport, 15 instances of sub-standard ships in Australian ports were notified to the International Maritime Organization during 1984/5. Where the deficiencies were serious, the ship's masters were prosecuted: in 1984/5 prosecutions were levelled against ships from Greece, South Korea, Philippines, Panama, Taiwan and Italy. Australian overseas shipping regulations also demand that ships entering Australian ports have crews manned and paid according to minimum ITF rates. However, flag of convenience or open registry ships form about a third of the world's cargo fleet, and they have proved to be very important in cost reduction; they provide an economic and efficient means of transport through the operation of free markets in charter shipping. Even the Department of Transport has had to admit the value of FOC shipping services to Australia. In 1981 the Department stated that `These vessels, which operate on the spot charter market, of necessity offer lower freight rates and in consequence have been an important factor in holding down rates in the bulk trades.' A very recent Industry Task Force Review of Australia's Overseas Liner Shipping Legislation also reported that `low cost shipping had contributed to providing important competitive advantages to Australian Shippers'. By far the most important open registries at this time are Liberia, Panama and Cyprus, and others include Somalia, Morocco, Honduras, Costa Rica, Lebanon, San Marino, Haiti, Malta and Sierra Leone. These ships are very important in Australian overseas shipping. For instance in the first half of last year 2,440 ships used Australian ports for the purpose of conveying cargo to and/or from Australia. Of these only 114 were our own Australian ships, but 315 were from Liberia, and 452 were from Panama. These are the ships which have permitted Australian shippers to have some bargaining leverage in overseas trades. But the unions have made many attempts to bar these and other overseas ships from Australian trades. Already Newcastle is a closed port to FOC vessels, although this is an entirely illegal action taken by unions without the sanction of law. What will stop the unions from banning other ports to FOC vessels or other overseas vessels conveying coastal trade? Section 45d of the Trade Practices Act is the only piece of legislation which specifically prevents trade unions taking boycotting action against overseas vessels which may in the future choose to take on coastal trade activities in Australia. The Columbus Line from Germany, a highly respected flag line, has been picketed by trade unions over a period of years simply because it is a foreign shipping line, but Section 45D has prevented the unions from actually banning the Columbus ships from entering and leaving Australian ports. And, given a firm government will, the same Act can be used to prevent the selfish denial of shipping services which would benefit the whole community. For the only possible way to force down the cost of coastal shipping in Australia is to widen the competition to include vessels with a lower cost structure than Australia. There is absolutely no doubt that Australia has the highest cost structure in the world for shipping. The unit cost of transporting coal from Newcastle to Port Hedland would be drastically reduced if the coal were carried in a Japanese ship at Japanese standards of manning and conditions, and the unit cost would be halved if the coal were carried in a Swedish ship, Belgian ship or a German ship at European standards of manning and conditions. There is no other way to reduce the Australian costs in shipping. All the consensuses, or consultations or Accords that this Government or any other government can ever dream up will never achieve cheaper shipping in Australia. The only way to achieve it is by competition. Some people will argue that introducing overseas ships into the coastal trade is the same thing as employing cheap labour from a developing nation to drive the buses in Australian cities, or permitting the Koreans to set up a steel works in Australia with cheaper Korean labour and Korean standards of wages and conditions. The analogy is false and misleading. What Australia does do is import a wide range of goods from the Third World, especially Pacific countries, such as textiles, craft works and clothing, reaping the benefit of the cheaper labour content of these goods. By doing so, we introduce competition in Australia for similar goods and the lower price of the imported goods are a benefit to the consumer; these goods are also important because they assist to hedge inflation and increase competition in the domestic economy. The present coastal shipping situation is economically untenable - bulk goods will continue to be carried around the coast in ships, but other goods will more and more resort to the uneconomic transport facilities provided by road and rail, unless a cheaper form of shipping can be provided on the Australian coast. Non-bulk shipping on the coast will gradually die, to the great loss of the Australian economy. As Mr McWilliams so correctly predicted in 1912, Part VI of the Navigation Act has become a monster. And it was this Federal Parliament which put this monster into place. This Parliament endowed Australia with a union monopoly which has resulted in the most expensive shipping service in the world. Even in 1924-just three years after Part VI came into force, there was an urgent public plea for the repeal of Part VI. The Report of the Royal Commission on the Navigation Act in 1924 was quite definite and precise: `the Navigation Act has failed in its purpose to build up an Australian Mercantile Marine'. The Report concluded: `The only recommendation which your Commissioners desire to make is one which will remove most of the grounds for complaint before your Commissioners, and that recommendation is that Part VI (the Coastal Trade) of the Act be repealed'. With that recommendation I heartily concur. It has long been Liberal Party policy to repeal protective provisions in the Navigation Act. It is up to this Parliament to undo the damage that it did in 1922. Debate (on motion by Senator Reid) adjourned. Bills received from the House of Representatives. Motion (by Senator Grimes) agreed to: That so much of the Standing Orders be suspended as would prevent the questions with regard to the several stages for the passage through the Senate of all or several of the Bills being put in one motion at each stage, and the consideration of all or several of such Bills together in Committee of the Whole, and as would prevent the reading of the short titles only on every order for the reading of the Bills. Ordered that the Bills may be taken through all their stages without delay. Bills (on motion by Senator Grimes) read a first time. Second Readings Senator GRIMES(Tasmania-Minister for Community Services)(3.48) —I move: That the Bills be now read a second time. I seek leave to have the second reading speeches incorporated in Hansard, and I table the revised explanatory memorandum for the Australian Wine and Brandy Corporation Amendment Bill 1986 and the Wine Grapes Levy Amendment Bill 1986. Leave granted. The speeches read as follows- AUSTRALIAN WINE AND BRANDY CORPORATION AMENDMENT BILL 1986 The purpose of this Bill is to provide for major reforms to the Australian Wine and Brandy Corporation to better suit the needs of industry. The reforms are consistent with the Government's Policy Statement `Reform of Commonwealth Primary Industry Statutory Marketing Authorities' released as a white paper on 29 January 1986. They will streamline the operation of the Corporation and make it more cost effective, and they will distribute the cost of funding its operation more evenly across levy payers. Associated with this Bill are the Wine Grapes Levy Amendment Bill, the Grape Research Levy Bill, Grape Research Levy Collection Bill and the Wine Research (Repeal) Bill. Together these form a package of measures for funding the Corporation, for bringing wine research into line with the provisions of the Rural Industries Research Act 1985 and thus providing a more stable funding environment, and for establishing grape research arrangements consistent with the provisions of the Rural Industries Research Act. This package of legislation and the decision to establish as a separate entity a non statutory Wine and Grape Industry Advisory Council was developed following some three years of consultations between the Government and the main organisations within the wine and grape industries. The levy for funding the Australian Wine and Brandy Corporation has remained unchanged for 13 years. Some meaningful activity has survived largely because erosion of the real value of the levy by inflation has been partly offset by increased vintages. However, when this Government took office some three years ago certain industry interests expressed concern that the Corporation's funding was totally inadequate for it to be effective but Corporation moves to increase the levy were opposed by large winemakers. Against this background a committee which included leaders of major national organisations within the wine and grape industries was established to facilitate dis- cussion with the Government on the future of the Corporation and other matters of major importance to the industry. Not all sectors of the industry support this package in full. Some of the large winemakers with the expertise to carry out their own export promotion etc. are opposed to the existence of the Corporation and object to levies upon them being used to finance such a body. However, other sectors of the industry strongly favour continuation of the Corporation. These winemakers support the concept of general administrative backing for export promotion being funded from levy proceeds, with participation in export promotion being voluntary and on a fee for service basis. The Government is firmly convinced that continu- ation of the Corporation is in the best long term interests of the industry as a whole. This Bill therefore provides for its continuation but introduces changes which the Government believes constructively address the concerns raised by the larger winemakers. The decision to legislate for funding grape research follows consideration of an industry request for this. There are some grapegrowers who have expressed opposition to proceeding with grape research at this time. However, they are very much in the minority. The Government believes that an industry-wide commitment to research is essential if the industry's full potential is to be realised. It is therefore fully prepared to play its part and respond to the industry request by providing a funding environment which will serve to achieve this. All interests favour placing wine research funding on a statutory basis. The proposals embodied in this and the associated Bills thus follow full consultation with the industry and very careful consideration of all relevant issues. The Bill provides for the Australian Wine and Brandy Corporation to undertake a range of functions similar to those embodied in the principal Act. However, as production-oriented research is being catered for under the Rural Industries Research Act, Clause 6 of the Bill provides for deletion of reference to this function. An important change is the way the Corporation will operate in future and its powers have been revised to reflect this. The Bill provides the Corporation with maximum flexibility to apply the ``user pays'' principle in financing its operations. Explicitly, Clause 7 empowers the Corporation to charge fees to recover costs associated with the control of exports and for the provision of services including co-ordination export promotion activities. Thus the burden of payment rests on those using the service and the basic cost of funding the Corporation can be minimised. In keeping with the functions envisaged for the Corporation the power of the Corporation itself to buy, sell or otherwise engage in trade in grape products on a commercial basis is removed. This power has not been used by the Corporation. In the past the Corporation has been the only forum in which representatives from the inter-dependent grape growing and winemaking sectors have met on a regular formalised basis. As a result there has been a tendency for it to be used as a forum for airing issues concerning industry or Government policy and it is arguable that the attention and effort of the Corporation has been diverted from its commercial functions. The Corporation's role is dealing with commercial activities, essentially associated with export promotion and regulation. The Government believes that the commercial roles of Statutory Marketing Authorities require an approach to the composition and selection of the Corporation Boards quite different to that which has applied in the past. It is not appropriate that the Board comprise persons to represent various sectors of the industry but rather that they have the skills appropriate to their corporate responsibilities. Clause 9 of the Bill reflects the decision to streamline the Corporation's membership which will be reduced from fourteen to eight. The membership will comprise an independent Chairperson, one Commonwealth Government member and six other members to be selected from a wide spectrum of business on the basis of their professional qualifications and work experience in one or more of the fields of winemaking, grapegrowing, marketing, finance, administration or business management. The term of membership will be for a period of up to three years but members will be eligible for re-appointment. Part IVA of the Bill provides for the establishment of a Wine and Brandy Corporation Selection Committee to identify and nominate persons for appointment as specially qualified members of the Corporation by the Minister for Primary Industry. The Selection Committee shall comprise a Presiding Member selected by the Minister and other members who will be appointed from nominations put forward by declared winemaker organisations. The industry which provides the levy proceeds for funding the Corporation will thus play a major part in determining who will sit on the Committee. At this time the relevant organisations are the Australian Wine and Brandy Producers' Association, the Wine and Brandy Co-operative Producers' Association of Australia and the Australian Winemakers' Forum. Members of the Selection Committee will not be eligible for appointment to the Corporation for at least 12 months after the time their membership of the Committee ceased. The Bill contains a number of requirements of the Corporation to increase its accountability to the industry it serves and to Parliament through the Minister. The main provision to make the Corporation more accountable to industry members is the requirement, covered in part IVB of the Bill, for it to convene an Annual General Meeting of the industry with the first meeting to be held not later than during the year commencing 1 July 1987. The purpose of the Annual General Meeting is to provide an opportunity for eligible winemakers to consider the most recent annual report of the Corporation, receive an address by the Chairperson on the performance of the Corporation during that year, question members of the Corporation concerning any aspect of its activities and debate and vote upon any motion relating to a matter within the responsibilities of the Corporation. Levy paying winemakers will be eligible to participate in and vote at Annual General Meetings. The method of determining voting rights and procedures for the convening and conduct of Annual General Meetings will be prescribed by regulation following further consultations with industry. The method of determining voting rights will have regard to the amount of levy imposed. This means that those providing the funding of the Corporation will have an appropriate say in its operation. Other arrangements to ensure that the Corporation carries out its functions in a business like manner and which also provide the basis for its relationship with the Minister are included in the Bill. For example, Division 1 of Part VA provides that the Corporation will be required to prepare Corporate Plans every three, four or five years, as appropriate, which will define the principal objectives of the Corporation and outline its intended strategies. In the development of the Corporate Plan, the Minister for Primary Industry would expect that the Corporation will consult with the industry to ensure that the industry's needs and priorities are taken into account. Division 2 of Part VA of the Bill provides that the Corporation will be required to develop for each successive period of one year an Operational Plan setting out the particulars of the strategies to be pursued by the Corporation over that period in giving effect to the Corporate Plan. Both the Corporate Plans and annual Operational Plans are to be submitted to the Minister for Primary Industry for agreement. In this way the accountability arrangements focus on the strategies and longer term performance of the Corporation and free it from the need for constant reference to the Minister for detailed approval of each major activity. While key parts of the Corporation's Corporate Plans may be made widely known to industry, the Corporation may wish to keep certain elements confidential for commercial reasons. The Bill also brings into place a number of general reforms designed to provide the responsibility and authority necessary for the Corporation to perform its commercial tasks but within a properly accountable framework. Of significance are the new audit arrangements covered in Clauses 21 and 22 of the Bill. Since the Corporation will now be required to convene annual general meetings of the industry and submit its annual report to those meetings it is appropriate that it be able to give effect to a preference for a company auditor to audit its accounts should it so wish. If the Corporation seeks to use a commercial auditor, the Minister for Primary Industry will be responsible for the appointment of the auditor, subject to the Auditor-General's agreement that the auditor is suitable and the agreement of the Joint Parliamentary Committee on Public Accounts. As well, to protect the public accountability of the Corporation the Government is making complementary amendments to the Audit Act 1901 via the Statute Law (Miscellaneous Provisions) Bill (No 1) 1986. These amendments will allow the Auditor-General to set audit standards, to have access to the working papers and reports of the commercial auditor and to comment on the results of any such audits to the Minister and to Parliament. In addition, the Auditor-General will retain a discretionary power to audit the Corporation's accounts and report to the Minister and Parliament on its financial statements. The Corporation will continue to be funded by a levy paid by winemakers on products used in winemaking i.e. fresh and dried grapes and grape juice. The basis of the levy will remain unchanged in that all wineries using the fresh grape equivalent of 20 tonnes or more per annum of grapes and/or juice will be required to pay levy. However, the rate of levy is to be varied and a maximum is to apply to the total amount of levy payable by a single levy payer. Spreading the funding of the Corporation more evenly across levy payers puts a greater share of the funding burden upon those who wish it to continue. The operative rate of levy and the maximum payment within the respective maxima will be set by regulation. Initially, an operative rate of $3 per tonne levy and a maximum payment by any levy payer of $10,000 will apply. After allowance is made for those amounts previously provided by the Corporation for research, which will now be funded by a separate levy component, the new operative levy will generate around the same level of funding for the Corporation as before i.e. about $500,000 in a normal year. However, for a leaner operation and with the ``fee for service'' approach this amount of funding should be adequate at least initially. The first collections of the composite levy to fund the Corporation and wine research will not be made until 1987/88. Accordingly, the Bill includes transitional provisions for levy imposed under current arrangements to be applied in appropriate proportions for these purposes in 1986/87. Restructuring the Australian Wine and Brandy Corporation will involve no costs to the Commonwealth. Administrative savings could be expected associated with the Corporation having greater autonomy in its day to day affairs. These are difficult times for the rural sector. The continuation and reorganisation of the Corporation is part of a total package of measures designed to benefit the industry over the years ahead. I commend the Bill to Honourable Senators. GRAPE RESEARCH LEVY BILL 1986 The purpose of this Bill is to provide for the imposition of a levy on grapes and grape juice delivered to wineries and to other processing establishments, the proceeds of which will be used to finance research on winegrapes and other processed grapes. Administrative and organisational arrangements for the scheme, including establishment of a Trust Fund and Research Council, will be in accordance with the provisions of the Rural Industries Research Act 1985. Specifically excluded from the scheme are those dried grapes in respect of which levy is payable under the Dried Fruits Levy Act 1971. At present most grape research is carried out by State Departments responsible for agriculture and by the Commonwealth Scientific and Industrial Research Organisation. Apart from activity associated with the Dried Vine Fruits Industry, which has in place well established arrangements, funding is ad hoc and research tends to be fragmented. The decision to establish a statutory research scheme for grapes and thus place funding on a secure long term basis followed a request by the Winegrape Growers Council of Australia, detailed consultation with the industry and widespread support from the industry, including from winemakers involved in grape production. The levy will be imposed on fresh grapes, dried grapes, and grape juice delivered to a winery or other establishment processing 20 tonnes or more of fresh grapes, or an equivalent amount of dried grapes or grape juice. The levy will apply from 1 July 1986, the beginning of the levy year as defined, and the grower of the leviable goods will be liable for payment of the levy. Grapes grown by a processor for processing in his/her own processing establishment will also be leviable. Levy will not be payable on grapes delivered to processors who use the equivalent of less than 20 tonnes of fresh grapes per year. It is estimated that only about 1,000 tonnes of grapes, or 0.2 percent of an average vintage, will fall into this exempt category and the collection of such levy would not be cost effective. Levy is not payable on juice crushed from grapes which are leviable. The Bill provides for a maximum rate of levy of the equivalent of $0.50 per tonne for fresh grapes. This allows flexibility to increase the operative rate if industry so wishes. Operative rates of levy are to be set by regulations following consideration of recommendations to the Minister for Primary Industry by relevant industry organisations. After thorough consultation the industry agreed that an initial operative rate of $0.30 per tonne should apply. This is to commence on 1 July 1986 and will raise around $150,000 annually on a normal vintage. Some time will be needed to build up reserves and develop a research program therefore expenditure from the fund and matching contribution from the Commonwealth is likely to be less in the first year than in future years. In 1987-88 Commonwealth Government funds of the order of $100,000 only may be involved. A Grape and Wine Research Council will be established under the provisions of the Rural Industries Research Act 1985 to administer grape research funding, as well as wine research funding arrangements which are the subject of a separate Bill. The Council will comprise an independent Chairperson and a Government member to be appointed by the Minister for Primary Industry plus seven suitably qualified persons selected by a Selection Committee. The Selection Committee will consist of the core group appointed for all Rural Industry Research Councils plus three members nominated by relevant industry organisations. A co-ordinated research program operating within a secure funding environment clearly will contribute to the development of a more efficient grape and wine sector better able to meet competition from other wine producing countries. The need for such a scheme was recognised in the April 1985 Report of the Inquiry Into the Grape and Wine Industries and through its commitment to matching industry funding the Government is prepared to play its part in working toward ensuring the future well-being of the grape industry. I commend the Bill to honourable senators. GRAPE RESEARCH LEVY COLLECTION BILL 1986 The purpose of this Bill is to provide the machinery necessary for collecting the levy proposed by the Grape Research Levy Bill 1986. This Bill should be read as one with the Grape Research Levy Bill 1986, and will commence on the same date as that Bill. To facilitate collection of the levy Clause 6 of this Bill provides for the levy to be paid by the processor on behalf of the grower and for the levy to be recovered from the grower. Levy imposed on leviable goods delivered during a July-June year is due and payable on 30 September in the following year. The Bill also outlines penalties for non-payment of levy and in relation to the requirement to submit returns. It includes standard provisions concerning the powers of authorised persons and access to premises relevant to the purpose of effective collection of levy. I commend the Bill to Honourable Senators. WINE GRAPES LEVY AMENDMENT BILL 1986 The purpose of this Bill is to revise the levy arrangements for funding the Australian Wine and Brandy Corporation and to impose a specific levy on winemakers to provide an industry contribution for financing wine research. Proceeds from the current Wine Grapes Levy are used to finance the activities of the Australian Wine and Brandy Corporation which in turn provides an annual ``industry'' contribution for funding research conducted by the Australian Wine Research Institute. Over recent years this industry contribution for funding research has been matched by the Commonwealth on an ad hoc basis. Amendments to the Wine Grapes Levy Act proposed in this Bill will provide for the levy to comprise two separate components. A marketing amount will continue to finance the activities of the Australian Wine and Brandy Corporation, the operation of which is being reformed as provided for in the accompanying Australian Wine and Brandy Corporation Amendment Bill. The research amount of the levy will provide the industry contribution for wine research, the funding of which will be placed on a more secure long term basis under the provisions of the Rural Industries Research Act 1985. The levy will continue to be payable on fresh and dried grapes and grape juice used in winemaking. The Bill provides for a maximum rate of $5.00 per tonne for the marketing amount of the levy and a maximum rate of $2.00 per tonne for the research amount. It also provides for the total amount of marketing levy payable by any single levy payer in any year not to exceed a ceiling of $20,000. Operative rates will be fixed by Regulation. Initially the marketing amount and the research amount of the levy will be $3.00 per tonne and $1.30 per tonne respectively and the operative ceiling on marketing levy payable will be $10,000. The operative rate of the research levy will not be changed without full consultation with declared winemaker organisations and a reasonable degree of industry support. The operative rate of levy and the ceiling on marketing levy payable will not be changed unless the proposed change has first been put by the Corporation for consideration at an annual general meeting of the Industry and there is a reasonable degree of industry support. Prior to the first annual general meeting the Corporation will be required to consult declared winemaker organisations on any proposed levy changes. The principal centre for the conduct of wine research in Australia is the Australian Wine Research Institute and its funding has been based on an ad hoc arrangement outside the normal statutory rural industry research funding arrangements. The Government fully supports the wine industry's objective of placing funding of the Institute on a secure long term basis so that it can better address the research needs of the industry. A secure funding environment for wine research will be achieved by prescribing the research amount of the Wine Grapes Levy as a levy for the purposes of the Rural Industries Research Act and establishing pursuant to that Act arrangements for administering wine (and grape) research funding. Separate Bills within this package of legislation provide for grape industry research funding arrangements. A Grape and Wine Research Trust Fund will be established with separate accounts to receive the proceeds of the research component of the Wine Grapes Levy and the Grape Research Levy. The Government is prepared to match expenditure of industry money from the fund up to a maximum level of 0.5 per cent of the gross value of production of the wine and grape industries. Should industry so wish, and subject to normal budget considerations, this level could be achieved over a period of five years. A single Grape and Wine Research Council will be established to administer the distribution of funds for both wine and grape research. This is being done with industry support to provide administrative savings and to facilitate co-ordination of research in each of these sectors where appropriate projects are involved. In addition to an independent Chairperson and a Government member appointed by the Minister for Primary Industry, the Research Council will comprise seven members with appropriate qualifications. These members will be selected by a Selection Committee comprising the core group, which has been appointed for all rural industry research councils, plus three other members nominated by relevant winemaker and grapegrower organisations. Each component of the levy will be collected under the Wine Grapes Levy Collection Act 1979 which provides for payment in two instalments at the end of September and the end of March in the financial year following that in which liability for levy is incurred. As the amending legislation will become effective on 1 July 1986, the first levy collections will not be made until 1987-88. It is estimated that in that year the cost to the Commonwealth by way of matching contribution to the wine account of the Research Trust Fund will be about $660,000. It will be necessary to provide for ongoing matching financing of the Australian Wine Research Institute during 1986-87 as current ad hoc arrangements terminate at 30 June this year. Accordingly, provision has been made in the related Australian Wine and Brandy Corporation Amendment Bill for an appropriate proportion of the existing Wine Grapes Levy imposed in 1985-86 but which will not be payable until 1986-87, to be deemed to be a research levy for the purpose of the Rural Industry Research Act. This will enable these funds to be paid into the Trust fund and to be matched by the Commonwealth when expended from that fund. Wine industry representatives have made it clear that the primary purpose of the new funding arrangements should be to secure the financial future of the Australian Wine Research Institute. Accordingly, it is intended that the bulk of the wine research levy proceeds be allocated by the Grape and Wine Research Council to meeting the Institute's research funding needs. At the same time, to the extent that availability of funds permits, other wine research projects could be considered for support from the Fund. In addition to the ongoing cost to the Commonwealth of matching expenditure of wine research levy proceeds, there will be a one-off cost to the Department of Primary Industry associated with changes which will be necessary to ensure efficient collection of the marketing amount of the modified Wine Grapes Levy. This is estimated in the order of $5,000. The measures proposed in this Bill will provide the basis for funding the Australian Wine and Brandy Corporation in a way that addresses the demands and concerns of industry and will create a stable long term funding environment for wine research which will help the industry to more fully realise its potential. I commend the Bill to honourable senators. WINE RESEARCH REPEAL BILL 1986 The purpose of this bill is to repeal the Wine Research Act 1955 and provide for the disbursement of the moneys standing to the credit of the Wine Research Trust Fund established under that Act. The associated Bills within this package will bring the funding and administration of wine research within the provisions of the Rural Industries Research Act and will establish, for the first time, grape research arrangements consistent with that Act. A new Grape and Wine Research Trust Fund will be set up for this purpose. A capital sum of $800,000 stands to the credit of the Wine Research Trust Fund. Interest on this amount has been paid in recent years to the Australian Wine Research Institute as a component of a Commonwealth contribution to match industry funding of the Institute. An extensive history attaches to the origins of the capital sum. Originally it was derived from the proceeds of an excise duty on spirit used in the fortification of wine. The duty was paid into a Wine Export Encouragement Account and used to finance a bounty on wine exported. In 1947 the bounty was discontinued and there remained a surplus in the Encouragement Account of some $2.2 million. Under the Wine Export Bounty Act of 1947, about $1.2 million was transferred to Consolidated Revenue and the balance of $1 million was placed in the Wine Industry Assistance Account. Under this Act moneys in the trust fund could be expended at any time within ten years for assisting the winemaking industry. Following a subsequent Tariff Board recommendation, a Government-Industry investigation was conducted into extension of research in the wine industry. This led to the establishment of the Australian Wine Research Institute and the transfer, under the Wine Research Act 1955, of funds in the Wine Industry Assistance Account to the Wine Research Trust Fund established under the 1955 Act. A sum of $200,000 was allocated to the Institute for capital expenditure leaving the present capital sum of $800,000 in the fund. The Commonwealth has contributed to the financing of wine research conducted at the Wine Research Institute since its inception in 1955. A five year funding plan commenced in 1978-79 and since 1979-80 the Commonwealth has fully matched contributions provided by grants from the Australian Wine and Brandy Corporation which itself is funded through a levy paid by winemakers on products used in winemaking. The five year plan ended in 1982-83 and since then matching Commonwealth funding has been provided by the Government on an annual basis. From 1 July 1986 onwards matching Commonwealth funding for wine research at the Institute will be provided in accordance with the Rural Industries Research Act 1985. Clause 4 of this Bill provides for an amount of $300,000 to be paid out of the existing Wine Research Trust Fund to the proposed Grape and Wine Research Trust Fund for the purpose of grape research. It also provides for the balance of the moneys in the fund, including any interest, to be paid to the Australian Wine Research Institute. This apportionment between wine and grape research is approximately proportional to the annual gross values of production for wine and wine grapes respectively. The amount of $300,000, which will not be matched by the Commonwealth, will be equivalent to about one year's match funding for grape research at a levy rate of 30c per tonne, the initial operative rate to apply for grape research. The direct payment of funds to the Australian Wine Research Institute should help the Institute to meet certain capital and maintenance expenses not eligible to be met by grants from the proposed Grape and Wine Research Trust Fund. This will constitute a one-off Budget outlay. The $300,000 paid into the Grape and Wine Research Trust Fund will be a transfer within the public accounts system. Clause 5 of this Bill provides for the repeal of the Wine Research Act 1955 on a day to be fixed by Proclamation after the last payment is made from the Wine Research Trust Fund. The disbursement of funds to both winemakers and grapegrowers as proposed is equitable and will help to establish research under the new arrangements on a firm footing. I commend this Bill to honourable senators. Debate (on motion by Senator Messner) adjourned. Motion (by Senator Aulich)-by leave-agreed to: (1) That the following amendment be made to the Resolution of appointment of the Joint Select Committee on an Australia Card, viz.: Paragraph (12), leave out the paragraph, insert the following paragraph: ``(12) That the Committee report by 8 May 1986.''. (2) That the foregoing Resolution be communicated to the House of Representatives by Message requesting its concurrence in the Resolution. Consideration resumed from 17 April. Clause 22. The CHAIRMAN —When the Committee was last dealing with this Bill it was considering clause 22 and an amendment to the clause by Senator Vigor to add a new sub-section to proposed sub-section 52a. The question is: That the words proposed to be added by Senator Vigor's amendment be added. Senator VIGOR(South Australia)(3.51) —When the debate was interrupted on the previous day of sitting I was starting to point out some of the problems that can occur in situations where one party in a business transaction is able to exercise cartel or virtual monopoly power over the outcome of that transaction. Basically there is a real danger that a huge imbalance in economic power and resources can be used to unilaterally force quite unconscionable conditions on the weaker of the parties. It is for that reason that I have moved the amendment-to extend the Government's proposal to disallow unconscionable behaviour by sellers of articles so that unconscionable behaviour by purchasers of products is also not allowed under the Trade Practices Act. The conditions that can be applied through use of cartel or monopoly power can be totally against the public interest. They can also shore up economic inefficiencies and managerial incompetence in the cartel or monopoly itself. I would like to look at the circumstances that can come about because of this distortion in the market-place. The obvious situation is where a small business contractor is supplying goods or services to a large conglomerate. All of a sudden the rules of the game can be changed after the supplier has put in new equipment to meet the standards and outputs demanded by the purchaser. Unless we have a provision with some teeth to prevent this sort of unconscionable pressure from being applied, the small supplier is completely at the mercy of the giant purchaser. This problem is going to get worse as we have more and more mergers and takeovers in the corporate sector. If unconscionable pressures are to be brought on small suppliers with impunity, small businesses will have to be cut-throat themselves, which will not result in a good or very co-operative business sector within Australia. If small business gets clobbered in this way the nation suffers with it. Small business is where the jobs are created, and where the entrepreneurial spirit in Australia flourishes. It needs a fair go. Usually, it will not be able to engage in protracted litigation with the giant economic interests that are trying to pressurise it. In any case what would be the point if a small supplier wins a case, but cannot market the goods or services as a result? That is what the present situation is. If we put in a provision about unconscionable purchasing behaviour, we have a proper deterrent to large economic forces being misused or those large corporations misbehaving. They will not want the bad publicity that will come from court appearances which follow the abuse of their market muscle. They will not depend just on the small financial resources of the victim as they do at present. The amendment should eliminate some of the more outrageous practices that are brought to our attention from time to time. It will at least redress the overwhelming imbalance that currently is in the favour of economic might and large corporate muscle. The same sort of thing that I am talking about happens to farmers. A buying monopoly or cartel can impose fairly tough conditions to start off with. It can get really nasty if it has some troubles of its own. Usually, farmers are quite unable to take the unconscionable behaviour to the courts, maybe because of some type of financial hold the organisation has over them. There just is not the time or the money for that sort of thing when one is scratching to get an income anyway. With the present rural crisis because of high interest rates and extremely low international prices, people really have enough to cope with in farming without a further attack on their living standards. If the Government and the Opposition are honest in their statements of concern about the rural sector they will join in supporting a measure which will enable farmers to deal with unconscionable conduct applied to them, and also to retain some kind of economic viability. In the past we have established a lot of boards and statutory authorities for primary produce partly because of the unscrupulous behaviour of large buying interests that were able to manipulate the producers and squeeze their returns. I believe the boards and statutory authorities are a good thing but there are still large cartels buying from farmers. We cannot continue to set up boards and statutory authorities forever, or at least after the horse has bolted each time. If we adopt my amendment we will actually have something which will help and be able to prevent unconscionable behaviour because people will not enter into these situations. We can actually do something to stop the problem from emerging. One area in which this will be of major importance is in wine grape buying. More and more small wine grape growers are being forced to sell up to large conglomerates and multinationals at rock bottom prices. The Government has a grape-pull program in order to help them go more quickly. This is happening after the market situation has been manipulated by the giant interests and giant wine makers who are importing wine grape juice into Australia, hence putting unreasonable conditions on our local grape growers. These grape growers are being left no option but to take what is being offered to pull their grapes after suffering the many injustices that the distorted market-place has inflicted upon them. This is the sort of conduct that must appal every reasonable Australian, every Australian who believes in truly free enterprise and a fair go for those with any type of initiative. Any honourable senator who votes against this amendment is voting for a continuation of the inefficiency caused by stand-over techniques in the market. Any honourable senator opposing the amendment is standing for the idea that might is right, that injustice and inequality should be allowed to flourish without check. That sort of attitude can come only from those cynical about power, and without a vision of an Australia in which the battlers get a fair go instead of being trampled under foot by voracious and unprincipled giant organisations. I look forward to both the Government and the Opposition matching their rhetoric of concern in this area with some action when the opportunity presents itself, as it has now. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(3.59) —I am afraid that all I can offer Senator Vigor on this occasion is a little more rhetoric. We cannot accept his present amendment, although we understand the reasons that have motivated him to move it. Let me explain why. His amendment seeks to ensure that section 52a will apply where a corporation engages in unconscionable conduct, both where it supplies goods or services to a person and where it acquires goods or services from a person. It is drafted in such a way that the section, if Senator Vigor's amendment is accepted, can not only assist in the context of consumer transactions, but also assist businesses which supply goods to an oligopolistic or monopsonistic market. Senator Vigor has argued for it on that basis. In the Green Paper proposed new section 52a was originally drafted so as to apply to all transactions-both consumer transactions and purely commercial ones-but that original draft met with very considerable criticism from business groups. The major criticism was that the section would introduce unnecessary uncertainty into what were essentially business transactions and that it would open the way for unjustified and vexatious actions. For this reason the proposal is now limited, as I have said, in its application to consumer transactions. The drafting of the proposed new section 52a and, in particular, sub-section 52a (2) demonstrates that the section covers only unconscionable conduct in relation to the supply of goods or services to a consumer. This also fits in with the scheme of Division 1 of Part V, which prohibits a range of misleading practices in trade or commerce in connection with the supply of goods or services. So the current drafting of the proposal attacks what the Government sees as the major problem in this area. This proposal has been discussed with and has broad support from many groups in the community. However, the Government will be constantly monitoring the operation of the new section once it becomes law. If problems do arise in the area which is envisaged and spelt out by Senator Vigor the Government will respond appropriately quickly to that concern. As I said, that is the most I can offer Senator Vigor on this occasion. I think he made his point and made it well, but in all the circumstances the Government does not feel able to accept his amendment. Senator DURACK(Western Australia)(4.01) —The Opposition likewise is opposed to this amendment. Unfortunately, we are debating this amendment before the Opposition's own amendments have been considered in relation to this matter. We are very concerned about the ambit of proposed new section 52a as it is printed without expanding it any further and creating any greater uncertainty. I do not propose to add anything further to that at this stage as I will be speaking to the Opposition's amendment, which I think will be the next amendment to be considered. However, it seems as though this is another attempt by the Australian Democrats to have the notion of unconscionable conduct introduced, when the conduct of corporations is dealt with in other sections of the Trade Practices Act. We have already had an amendment from the Australian Democrats, which has been defeated, to include the notion of unconscionable conduct in other sections of the Trade Practices Act, I think concerning the misuse of market power. In all events, this would be a back-door method, as I see it, of trying to achieve something of the same purpose which they sought to achieve directly in the earlier amendment we considered in this debate. Therefore, the Opposition does not support the amendment. Amendment negatived. The CHAIRMAN —We took the amendments to clause 22 out of order. The Opposition's amendment was deferred by agreement. It would now be appropriate for Senator Durack to move his amendment. Senator Durack —Mr Chairman, I am a bit confused because there was an earlier amendment from Senator Vigor. The CHAIRMAN —Senator Vigor's amendment No. 1 is consequential on his amendment No. 3. Therefore, that logically should come after your amendment. Your amendment No. 2 would have been the appropriate amendment to be considered first. It was deferred by agreement when the Committee last considered this matter. It is now appropriate to bring it on. Senator DURACK(Western Australia)(4.04) —The Opposition's amendment proposes to insert a new sub-section in proposed new section 52a. As I have indicated, the Opposition is very concerned about the ambit of proposed new section 52a. It represents an altogether new section in the Trade Practices Act. As Senator Gareth Evans has indicated it will be contained in Part V, the consumer protection area, of the Trade Practices Act. It is designed to give consumers another remedy altogether different from the ones they have enjoyed under the existing Trade Practices Act and, indeed, different from those they have been able to enjoy at common law, expect under a statutory provision confined, I think, to New South Wales where the statutory notion of unconscionable conduct was introduced into law some years ago. I am not sure whether it has been adopted in other States, but it certainly is a fairly new remedy. It has not been adopted Australia-wide. Certainly, it goes well beyond the common law and beyond the remedies which have been taken up in Part V, the consumer protection provisions, of the Trade Practices Act. The proposal to introduce the notion of unconscionable conduct into the Trade Practices Act is, as I have said, one of the concerns of the Opposition about the whole Act. We see this as a further development of restrictions and burdens being placed on the business community. We see it as including further elements of uncertainty into not altogether unchartered waters but ones which, so far, have not been very well developed by the law. There is an attempt in the proposed new section to give some directions to the court, without limiting the matters to which the court may have regard, in determining whether there has been unconscionable conduct in relation to the supply of goods or services. Proposed new sub-section 52a (2) states that the court may have regard to a number of factors, including the relevant strengths of the bargaining positions of the parties, whether the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of a cor- poration; whether the consumer was able to understand any documents relating to the supply of goods or services; whether any undue influence or pressure was exerted on or any unfair tactics used against the consumer; and the amount for which and the circumstances under which the consumer could have acquired identical or equivalent goods or services. Those are some signposts that may make this whole exercise and the obligations a little more certain. I suppose there are decisions, albeit under other statutes, which may throw some greater certainty on this whole exercise. Nevertheless, as I have pointed out, this proposed new sub-section, which is to provide the signposts, also indicates that the court is not being limited in any way as to which factors it may have regard to. Certainly, it is not limited to those five points, set out in the sub-section, to which I have just referred. For all those reasons the Opposition proposes that following the proposed new sub-section 52a (2) there should be another sub-section 52a (2a). I move: Page 11, clause 22, after proposed new sub-section 52a (2), insert the following sub-section: ``(2a) In determining whether a corporation has engaged in conduct that is, in all the circumstances, unconscionable, the Court shall have regard to the principle of the need for certainty in commercial transactions.''. I should have mentioned that other sub-sections also give the court some guidance in making decisions. However, they do not emphasise the fact that in commercial transactions-even transactions involving the supply to consumers-there is, I think, an overwhelming and overriding requirement that the law should be reasonably certain. As we are moving into a pretty new area of legal development in respect of this part of the legislation, we think it is desirable that that overriding consideration should be flagged clearly in the legislation itself. It is, as I said, a principle which the courts have tried to follow in the past. It may be that they will do the same again. However, we think that it is as well to point out to them that this is the view of Parliament. Despite the proposed new section, despite the ambit of the redress and the remedy which is available under the proposed new section and despite the various signposts which the Parliament is giving the courts in creating this new remedy, it would be as well to emphasise that overriding principle of certainty in commercial transactions. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.12) — Senator Durack's amendment seeks, as he said, to insert a new sub-section (2a) in section 52a which directs the court, when determining whether a corporation has engaged in conduct that is unconscionable, to have regard to the need for certainty in commercial transactions. Although that amendment has some obvious appeal at first blush, nonetheless it is unacceptable to the Government in the context in which it is now sought to be moved for reasons which I will now explain. A similar requirement did exist in proposed sub-section 52a (2) which appeared in the Green Paper. That requirement was deleted from the present Bill because the scope of section 52a was narrowed, as I said in debating the last amendment, to confine it to consumer-type transactions rather than have it extending to all transactions-consumer and more general commercial ones as well. The other reason it was deleted was that it would unduly restrict the operation of the section. Let me say a little more about each of those points in turn. As far as the latter is concerned, the Government has taken the view, I think quite properly, that it would be dangerous to specify this particular consideration in the separate manner that is proposed as it may lead to undue weight being given to the principle of need for certainty in commercial transactions. We would have this particular criteria and consideration to be given attention to standing there like the proverbial shag on the statutory rock without the court having other guidance as to other considerations that it ought equally have regard to. It should be noticed that the Bill in its present form abandons the whole method of drafting that was inherent in the original Green Paper proposal whereby numerous factors that were to be considered by the court were spelt out. What we now have is a truncated list which essentially allows the court to identify and evaluate for itself the relevant factors and the weight to be given to them. The sort of course proposed by Senator Durack involves a partial reversion to that original drafting technique. It reads very oddly in that kind of context and potentially dangerously so far as the likely interpretation of the provision is concerned. The other consideration is, as I have said, that the focus on section 52a is now on the supply of goods and services for personal, domestic or household use or consumption. So the concept of commercial transactions with which Senator Durack's amendment is preoccupied really does not reconcile with that new terminology and with that new scope of the parent clause. Might I finally mention that a very interesting and useful comment on this whole theme in this respect is that of Sir Anthony Mason in his article `Themes and Prospects' which is contained in a book called Essays in Equity edited by Dr P. D. Finn, published by the Law Book Co. Ltd in 1985. Referring to a commentary on section 52a by another author, Dr Hardingham, Sir Anthony Mason said: Dr Hardingham rightly regards the direction to the court in section 52a (2) to `have regard to . . . the weight to be given in the case to the principle of the need for certainty in commercial transactions' as amounting to a little more than a political gesture. One can scarcely describe `the need for certainty in commercial transactions' as a principle, legal or otherwise; and its force as a relevant consideration is as an element to be taken into account, not in the disposition of the particular, but in the shaping of a legal principle giving expression to the concept of unconscionability as it applies to contracts and in delimiting the area of operation of that legal principle. I hope that Senator Durack will notice the lack of affection and favour with which one of the most distinguished members of the High Court of Australia has regarded the particular language of his amendment and graciously withdraw it or, if not, not yell too loudly in its support when we come to a vote. Senator VIGOR(South Australia)(4.16) —The Australian Democrats will not be supporting this amendment. We have looked at this matter and decided that the amendment really does not add anything that we would like to have added to the Act. Senator DURACK(Western Australia)(4.17) —Like Senator Evans, I do not accept as gospel truth everything that falls from High Court judges. The mere fact that there has been some criticism of this principle is a matter for consideration. However, despite that fact I can only repeat that the Opposition believes that in these circumstances the courts ought to be given a clear signal that although the Parliament is creating this new remedy and is indicating, as I said, certain signposts, nevertheless we do not want them engaging in great flights of their own fancy, particularly in the light of the prefactory words to proposed new sub-section 52A (2) which gives them, or seems to give them, pretty unfettered discretion as to what they will have regard to. Although we would prefer not to have this new remedy included in the obligations of suppliers, if it is to be in the legislation-and obviously it will because of the support that will be given by the Australian Democrats-we insist that it is an important principle which should be followed. Although some lawyers and commentators may not consider it to be a principle as such-and there may be some academic justification for that-nevertheless we believe that Parliament itself in this case should adopt it as a principle and give it as a clear direction to the courts. We will certainly press this amendment. Question put: That the amendment (Senator Durack's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 29 Noes . . . . . . . . . . . 36 —— Majority . . . . . . . . . 7 —— Archer, B. R. Knowles, S. C. Baume, Michael Lewis, A. W. R. Baume, Peter MacGibbon, D. J. Bjelke-Petersen, F. I. Messner, A. J. Boswell, R. L. D. Newman, J. M. Brownhill, D. G. C. Parer, W. R. Carrick, Sir John Puplick, C. J. G. Collard, S. J. Reid, M. E. Crichton-Browne, N. A. Sheil, G. (Teller)Durack, P. D. Short, J. R. Guilfoyle, Dame Margaret Teague, B. C. Hamer, D. J. Vanstone, A. E. Hill, R. Watson, J. O. W. Jessop, D. S. Withers, R. G. Kilgariff, B. F. Aulich, T. McClelland, DouglasBlack, J. R. McKiernan, J. P. Bolkus, N. Macklin, M. J. Childs, B. K. Maguire, G. R. Chipp, D. L. Mason, C. V. J. Coates, J. Morris, J. Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M. Cooney, B. Richardson, G. F. Crowley, R. A. Robertson, E. A. (Teller)Devlin, R. Ryan, S. M. Elstob, R. C. Sanders, N. K. Evans, Gareth Sibraa, K. W. Foreman, D. J. Siddons, J. R. Gietzelt, A. T. Tate, M. C. Giles, P. J. Vigor, D. B. Haines, J. Walsh, P. A. Jones, G. N. Zakharov, A. O. Walters, M. S. Coleman, R. N. Townley, M. McIntosh, G. D. Chaney, F. M. Button, J. N. (Senator Grimes did not vote, to compensate for the vacancy caused by the death of Senator Missen.) Question so resolved in the negative. Senator VIGOR(South Australia)(4.25) —by leave-I move: (1) Page 10, line 37, leave out ``section is'', insert ``sections are''. (3) Page 11, after proposed new section 52A, add the following new section: ``Disclosure of interest `52B. A corporation acting as an agent in trade or commerce shall disclose to the principal for whom the corporation is acting- (a) if the corporation is itself a principal in respect of the same transaction-that fact; (b) if the corporation is also acting for another principal in respect of the same transaction- (i) that fact; and (ii) the identity of the other principal or, if the other principal has requested that his or her identity not be disclosed, that fact; and (c) if the corporation has any interest, direct or indirect, in the transaction, otherwise than in the capacity of agent for the first-mentioned principal-the nature of that interest.'.'' The purpose of these amendments is to require agents to declare their interests as principals in any transaction so that persons employing them as agents are aware of possible conflicts of interest. In the past this practice has led to considerable abuses of trust by agents over a number of years. In South Australia real estate agents have, for a number of years, been banned from having any direct or indirect interest in any transaction in which they have been commissioned to act. Victoria has similar provisions, though not as stringent as in South Australia. This requirement was introduced because of the large number of abuses of trust by agents buying houses at very low prices and then reselling those houses shortly thereafter at a much higher price. Similar abuses of trust are well known in other areas of trade and commerce and, indeed, this is what this amendment seeks to control. For example, stock agents are well known to purchase stock in their own or their company's name without revealing the name of the buyer to the seller, and then to resell the stock to another buyer. In this way stock have been purchased in central New South Wales and then successively traded or exchanged with a commission paid on each transfer and transport paid at each stage until the stock eventually reaches port in South Australia or southern Victoria, totally owned by the agent, and is then exported to the Middle East with the agent again making quite a large profit. Only the other day we discovered that the stockbroker for Broken Hill Proprietary Co. Ltd, J. B. Were and Son, had been acting both as stockbroker and principal in buying BHP shares through its investment banking arm, Invia Ltd, while a wholly owned subsidiary of Invia Ltd, Invia Custodian Pty Ltd, had been buying BHP shares as an agent for other parties. In other words, J. B. Were/Invia Ltd had been acting both on BHP's behalf, on its own behalf, and as an agent for buyers of BHP shares through its subsidiary. This all came out because of the Holmes a Court-BHP takeover problem which has been well aired in this Senate. Such dealings bring the whole area of sharebroking into question and, I believe, should be investigated much more thoroughly. This amendment to the Trade Practices Revision Bill does not ban such dealings, but it does require disclosure of interest in any transaction in which an agent is commissioned to act. Thus the principal is not disadvantaged while no restraint, in fact, is placed upon the commercial activities of the agent himself in his own name or in the name of another principal. The effect of this amendment will be to improve the flow of business by increasing the level of trust. In fact, the high penalties for failure to disclose conflict of interest will make such abuses of trust very unlikely. Where the principal cannot be disclosed for one reason or another, we need to be sure that the transactions we are going to have are, in fact, carried out at arm's length. This means that agents have the choice of disclosing the principal, and thereby revealing a beneficial interest, or not being able to act in that transaction. I believe this is the normal type of procedure which should be required of any agent acting in the market-place. There are already provisions under common law for remedy when an agent has a fiducial relationship with a principal and is therefore not allowed to put his duty in conflict with his interest. This has been brought to our notice. However, the fact that these types of practices do go on means that there is a need for this type of amendment to the Trade Practices Act. An agent under common law must not enter into any transaction likely to put his duty in conflict with his interest unless he has first made the fullest disclosure of the exact nature of his interest to his principal. In particular, an agent must not sell his own property to his principal without full disclosure, nor must he buy the principal's property without full disclosure. In a case where the agent is not dealing at arm's length with a principal, the agent must establish that he did furnish to the principal at the time of the transaction all the knowledge he possessed concerning any other transaction he might be involved in. However, in Johnson v. Bones (1970) I NSW 28, where an estate agent purchased land from his principal, it was held that the agent was under no obligation to investigate the true value of the land or to obtain a valuation from a third person. The remedy at common law is that the contract is voidable at the principal's option. In cases where rescission is not possible-for example, where the agent has resold the property to a third party-the principal is entitled to an account of the profits made by the agent, together with interest on those profits and on the amount. As I indicated before, various approaches have been used in State and Territory law to prohibit real estate and business agents being directly or indirectly interested in the purchase of properties they have been commissioned to sell. In such cases the court may, in addition to any penalty, order the agent to account to his principal for the profits gained from the transaction. This amendment to the Trade Practices Revision Bill 1986 incorporates some of these provisions into Federal law for those States where these types of provisions are not provided in State laws as they are in my home State. Proposed new section 52B is essentially a re- statement of the position at common law that I have just described, although it will not affect the application of that common law remedy. A person who breaches the new section will, however, be liable to a penalty of a fine of up to $20,000 in the case of a natural person or $100,000 in the case of a body corporate. This would be so under section 79 of the Act. That would be a considerable deterrent to anybody wishing to enter into this type of behaviour. A provision is included to allow the court to order the agent to account for any profit he has made. It should be noted that where the court makes such an order, it would deprive the principal of his common law option of seeking rescission of the contract. Some of the lawyers in the Senate might well feel that a case has been made out for the need to regulate this activity but might be of the opinion that section 6 of the Secret Commissions Act 1905 covers already what I am trying to achieve. I would like to spend just a little time pointing out the differences between the rather archaic language of section 6 of the Secret Commissions Act 1905 and what I am putting forward in 1986. I believe that honourable senators will realise that what I am proposing is stronger and much more in the public interest. Section 6 of the Secret Commissions Act 1905 reads: Any agent who without the full knowledge and consent of the Principal, buys from or sells to himself, or any firm of which he is a partner, or any company of which he is a director, manager, officer or employee, or in which he or any person for whom or on his behalf is a shareholder, any goods for or on behalf of his principal, shall be guilty of an indictable offence; The penalty in the case of a corporation is $2,000 and in the case of any other person it is two years imprisonment or $1,000 or both. It is not clear on how many occasions this particular section has been used, if it has been used at all. Certainly there are no reported cases under it and it is not clear how a court would interpret this section if it were to be the subject of a case, so I was quite surprised when it was brought to my notice by the Attorney-General's Department. What I propose brings with it far greater deterrence than is the case with the Secret Commissions Act. In the first place, the Trade Practices Commission, with all the resources at its disposal, would have the function of enforcing this provision. The Trade Practices Act provides for much heavier penalties than can be imposed under the Secret Commissions Act. For instance, as I said before, the maximum penalty of $20,000 for a natural person has to be measured against a maximum of a $1,000 fine and two years imprisonment, and for a corporation the maximum fine of $100,000 has to be measured against the maximum of $2,000 that is provided for in the Secret Commissions Act. I believe that the availability of fines of this magnitude will certainly make those who contemplate not disclosing their interests think again. There is also the matter of the courts being empowered to order that a convicted person or corporation pay to the principal any profits from the `swindle'. This confiscation of ill-gotten profits is one of the most salutary deterrents to criminal activity of which I am aware. In the case of professional people, reputation is very highly valued. If details of the court action and proceedings are published, including the circumstances of the offence, that publication can certainly diminish the standing of the culprit. I believe that, even with the unequal concentration of media ownership that exists in Australia, major cases would be reported to the general public in some way or another. This would therefore act as a very powerful deterrent to unexactable behaviour from the professional sector where people may be acting as agents. On the other hand, the penalties under the Secret Commissions Act 1905 are no more than a slap on the wrist for any major operator or concern. I am proposing remedies that will really be able to redress the offence. Another point worth making is that my proposed amendment invokes both the corporations and trade and commerce powers of the Commonwealth. Ever since the decision of the High Court of Australia in the Concrete Pipes case in 1971 the corporations power has been seen as very strong, certainly far wider than the trade and commerce power on which the Secret Commissions Act rests. The corporations power of the Commonwealth will enable my proposed amendment to pick up more situations than can be picked up under the Secret Commissions Act. In other words, I am seeking to close effectively a gap in our current legislation which in practice allows large corporations to engage in highly unethical and illegal activities with impunity and also allows this privilege to small-time crooks. I am also establishing a mechanism for enforcing the legislation, thereby removing a large disadvantage that the ordinary person, be he or she a farmer, small business person or private individual, suffers at the moment. Disadvantaged people will not be forced to stand by mutely and cop abysmal treatment from larger and more powerful economic interests if this amendment is passed. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.40) — While appreciating the vigour with which Senator Vigor has pursued this cause and while acknowledging, as did the Attorney-General (Mr Lionel Bowen) in the other place, that the various matters to which Senator Vigor draws attention need further investigation with a view to possible further changes in the law, the Government at this stage is not prepared to go down this track. On 20 March the Attorney-General made a statement regarding Senator Vigor's proposal, the gist of it being that the Government remains to be convinced that the problem perceived by Senator Vigor warrants the legislative solution he proposes but that we are willing to investigate the matter further. Among the matters about which Mr Bowen indicated his concern was that any legislative action taken by the Commonwealth in this area not conflict with any existing Commonwealth and State regulation of agency relationships. He also thought it appropriate and desirable to seek the views of business and consumer groups and Commonwealth and State authorities, the general object being to discover whether, as a practical matter, the problem is of such a magnitude as to warrant an amendment to the Trade Practices Act with all the heavy penalties and so on that that implies and the possibility of legislative overregulation of this area. The Attorney- General undertook that the Government would investigate the problem addressed by Senator Vigor and prepare a report. Under the circumstances, that is a fair and timely response to Senator Vigor's contribution to this debate. Senator SHORT(Victoria)(4.41) —On behalf of Senator Durack, who is unavoidably absent, and on behalf of the Opposition, I say that the Opposition too will not support Senator Vigor's amendments. To be quite honest, we have some difficulty in understanding their purport. I think we comprehend the concept of disclosure of interest with which the section 52b proposal deals but it seems that understanding what is proposed by the wording of Senator Vigor's amendments is difficult. The wording is lengthy. I say with no disrespect to Senator Vigor that the drafting is convoluted. Perhaps that may be the fault of his drafting assistance more than anything else. We find it difficult to understand. Obviously, the aim of the proposal is to force corporations to disclose any agency arrangements that they operate under in trade or commerce or whether they have any interest in the transaction other than as agent, and the nature of that interest. The position of agent and principal has always been very difficult in the law and in its practical application. We do not feel that the amendments lead to an improvement in that area. We also have difficulty in understanding the rationale for the suggestion, particularly in the light of Senator Evans's undertaking that there will be further examination of and reporting on some of the aspects with which the amendments deal. At this stage, we feel that it would not be wise to proceed with the amendments. Therefore, the Opposition takes a view similar to that of the Government and will not support the Democrat amendments. Senator VIGOR(South Australia)(4.45) —I should comment on the `convolution' aspect of the amendments. The amendments would ensure that nobody acting in a reasonable way in trade or commerce would be disadvantaged by the amendment but that information concerning a transaction could not be concealed in any way from a principal by an agent who might be acting for another principal or in his own name. In order to put that in a concise form, we have adopted this drafting technique. I am very heartened that the Government will take up these measures. I ask Senator Evans to give us an indication of the time scales involved because the Attorney-General's Department has a history of taking a considerable time to bring such things into effect. I hope that this case will provide a demonstration of efficiency in getting a report very quickly on this important matter. The Australian Democrats will call for a division. We believe that this matter is sufficiently important to warrant a commitment to these amendments being recorded in the form of a vote. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.46) — The most that I feel able to say on behalf of the Attorney-General on the matter of time is that, as always, I am confident that he will move with all deliberate speed. Question put: That the amendments (Senator Vigor's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 7 Noes . . . . . . . . . . . 58 —— Majority . . . . . . . . . 51 —— Chipp, D. L. Sanders, N. K. Haines, J. Siddons, J. R. Macklin, M. J. (Teller) Vigor, D. B. Mason, C. V. J. Archer, B. R. Jones, G. N. Aulich, T. Kilgariff, B. F. Baume, Michael Knowles, S. C. Baume, Peter Lewis, A. W. R. Bjelke-Petersen. F. I. MacGibbon, D. J. Black, J. R. McIntosh, G. D. Bolkus, N. McKiernan, J. P. Boswell, R. L. D. Maguire, G. R. Brownhill, D. G. C. Messner, A. J. Carrick, Sir John Morris, J. Childs, B. K. Newman, J. M. Coates, J. Parer, W. R. Collard, S. J. Puplick, C. J. G. Colston, M. A. Ray, RobertCook, P. F. S. Reid, M. E. Cooney, B. Reynolds, M. Crichton-Browne, N. A. Richardson, G. F. Crowley, R. A. Robertson, E. A. (Teller)Devlin, R. Ryan, S. M. Durack, P. D. Sheil, G. Elstob, R. C. Short, J. R. Evans, Gareth Sibraa, K. W. Foreman, D. J. Tate, M. C. Gietzelt, A. T. Teague, B. C. Giles, P. J. Vanstone, A. E. Guilfoyle, Dame Margaret Walsh, P. A. Hamer, D. J. Watson, J. O. W. Hill, R. Withers, R. G. Jessop, D. S. Zakharov, A. O. Question so resolved in the negative. Clause agreed to. Postponed clause 17 (Misuse of market power). The CHAIRMAN —When we were considering clause 17 before, Senator Short had moved that certain words be added. The question is: That the words proposed to be added (Senator Short's amendment) be added. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(4.55) —Mr Chairman, as you have indicated, on 17 April Senator Short moved an amendment to clause 17 of the Trade Practices Revision Bill which would have introduced a new sub-clause (8) in the following terms: For the purposes of sub-section (7), an inference may be drawn from the conduct of a corporation only in the absence of any other reasonable explanation for the conduct. Sub-section (7), which is there referred to, provides in the Bill as it now stands: . . . a corporation may be taken to have taken advantage of its power for a purpose referred to in sub-section (1) notwithstanding that the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances. During the last debate on Senator Short's amendment I stated that his amendment was unacceptable to the Government. Debate on that amendment was postponed because there seemed to be some agreement emerging in principle as to what was intended, and it was thought possible that an acceptable form of words might be able to be worked out. Discussions have been held since that debate with the Opposition and the Australian Democrats. As a result the Government now proposes an amendment to sub-section (7), which I foreshadow, as follows: Page 7, clause 17, line 21, insert `, after all the evidence has been considered,' after `notwithstanding that'. The Government, I hasten to add, does not itself see any particular problem with the terms of proposed new section 46 (7). It was intended to enable the court, as I indicated during the previous debate, to balance all the evidence, including evidence of conduct and any explanation of it. Nevertheless, to meet the concerns of honourable senators that somehow that provision was unclear and might enable the court to draw inferences from conduct, or the explanation of conduct, in isolation, without regard to all the relevant evidence, we have introduced those words to remove any basis for doubt. The explanation for proposed new section 46 (7) is set out in paragraphs 51-55 of the explanatory memorandum, and those paragraphs of the explanatory memorandum are equally applicable to the clause as it is now proposed to be amended by the Government. I mention for the record, because it is important in any subsequent interpretation of this clause, which is a tricky one, that the explanatory memorandum was a considered document and should be read as such. Section 15AB of the Acts Interpretation Act now specifically provides that in interpreting an Act the court may have regard to any material included in: (e) any Explanatory Memorandum relating to the Bill containing the provision or any other document which was laid before or furnished to the members of either House of Parliament by a Minister before the time when the provision was enacted. The provision in question is intended only to make it clear that whether a corporation has taken advantage of its power for a particular purpose can be ascertained by inference from conduct or from other relevant circumstances. The reason the provision has been put in there is, as I said during the last debate, that there has been a view around, for better or worse, from the one or two cases in which this section has been run and the way in which the courts then responded to it and certainly in the way litigants have regarded it, that what one needed to get a section 46 action going was some direct evidence, which in practice is exceedingly hard to come by. That is the rationale again for the clause. That rationale is articulated very fully in the paragraphs of the explanatory memorandum to which I have referred. That is the reason why we have proposed the clause, but it is also the reason why we are prepared to clarify it. Let me just repeat for the record the concerns we have with Senator Short's amendment. Notwithstanding the discussions which have occurred outside the Parliament, I believe he may be keen to pursue it. Senator Short proposed that an inference may be drawn from the conduct of a corporation only in the absence of any other reasonable explanation for the conduct. That is, and remains, unacceptable to the Government because it would simply cut the heart out of section 46. At the very least, it would seriously aggravate the difficulties of proof of corporate purpose which the Senate Standing Committee for the Scrutiny of Bills conceded existed. The problem with Senator Short's amendment is that an explanation of conduct only has to be open to the court; it does not have to be the explanation, nor, it would seem to be, even evidence to support that possible explanation. I gave an example last time of how all this might work if Senator Short's amendment were accepted and I do not think there is any need to track back over that. There would be no weighing of the evidence if the Opposition's amendment were adopted, yet weighing the evidence is quintessentially what we want the court to do. Another matter which needs to be mentioned is the objection of the Law Council of Australia, not least because of the presence at some stage of this debate of a Law Council representative who was very carefully watching over us. The Law Council's objection, which lay behind Senator Short's concerns, as he acknowledged, was that the sub-section in its present form would permit a predatory purpose to be inferred merely from the inevitable consequences of genuinely competitive conduct. For example, profitable but low pricing by efficient competitors which prevents less efficient competitors from entering the markets should not be interpreted as an abuse of market power. That was the Law Council's objection. Again, I make it clear that in the Government's view there is no foundation for that objection. It is answered directly by paragraph 55 of the explanatory memorandum, which states: On the other hand, a corporation which is able to price its goods very competitively by reason, for example, of economies of scale or the acquisition of new efficient production facilities, would not be inhibited from so doing by reason of the fact that it enjoys a substantial degree of market power. By reflecting in its pricing policy its efficiency it would not, without more, be taking advantage of its market power notwithstanding any effect of its pricing on its competitors. The Law Council's concern we see as essentially misconceived. It is simply not conceivable that a court would draw inferences of the kind which make this section bite from low pricing which was itself profitable. If a profitable pricing activity is still going on, it is very difficult to see how that can possibly be construed as predatory within the meaning of the operation of the section. The final point which I take this opportunity to clarify for the record-because it was the subject of some debate last time, initiated by Senator Michael Baume-concerns the reference to `average variable cost' in paragraph 54 of the explanatory memorandum. There might have been some confusion in this respect caused by the inadvertent but erroneous use of the expression `average cost' instead of `average variable cost' in the explanatory memorandum relating to the original Bill, which was cleared up in the rewriting. That was probably the source of the misunderstanding, and I was not aware that there had been that misprint, as it were, until we looked again at this issue in the light of Senator Michael Baume raising it. For the record, let me make clear the point that was being made in paragraph 54 and by me in the debate last time. The object of this paragraph was to resolve a question expressly left open by the court and to make clear that the setting of a particular price was a necessary condition to the operation of section 46. Average variable cost is not low pricing but profitable pricing, as contemplated by the Law Council's example. Samuelson, at page 455 of the sixth edition of his famous text-book, to which many of us have been exposed in other incarnations, said: When price falls below average variable cost, a rational firm will shut down completely. The position is made clearer by an extended quotation from the judgment of Chief Justice Bowen in Victorian Egg Marketing Board v. Parkwood Eggs Pty Ltd (1978) ATPR, when his Honour said: I have left open the question whether in the ordinary course a monopolist can engage in predatory price cutting only if the price is below some particular cost, and not where the price that is set, although it may deter competitors, is one which merely does not maximise the monopolist's profit. It may be that where one can infer the requisite purpose from other evidence, price cutting may be predatory in the sense referred to and a `taking advantage' of power derived from the substantial control of a market, notwithstanding that it is not below marginal or average variable cost and does not result in a loss being incurred. That puts the point in context. What matters, as always, is not that any single criterion is absolutely crucial or determinative, but how things add up on the balance of the evidence. It is in order to ensure that there is a weighing and balancing of all the evidence that bears upon purpose that this clause was put into the Bill in the first place. It is in order to make absolutely clear that such a weighing and balancing exercise must go on that the clause is proposed, for the purposes of clarification, to be further amended as I have foreshadowed. Senator HAINES(South Australia)(5.06) —When Senator Short moved this amendment earlier this month, my reaction to it was somewhat disorganised, given the short time that we had had the amendment in our hands. I saw it only that morning. On first glance it certainly appeared to me to be a not unreasonable amendment to the clause. It appeared to weaken the clause, certainly, but only marginally, since its aim, I thought at the time, was simply to ensure that any reference was not drawn from the conduct alone but that other relevant evidence would be taken into account. Further investigation and some considerable discussion later in the day, after we had postponed discussion of the clause after a somewhat acrimonious debate in the chamber, showed that in fact the words used in Senator Short's amendment could be taken to mean that in effect no inference could be drawn at all, as long as some other apparently reasonable explanation for the conduct-to quote Senator Short's amendment-was drawn to the attention of the court. As has already been pointed out during the debate, there are some literal-minded judges floating around this country whose black and white interpretation of legislation has led to some changes being made to the Trade Practices Act and incorporated in the amendments we have before us in this legislation. I would think that to encourage further excursions into black and white reading of legislation would be hardly clever, since part of the purpose of the Trade Practices Revision Bill is to curb some sort of excessively literal interpretation by some judges. At the time we first debated this, I assumed that Senator Short's motives were pure and above board and not just an ideologically inspired attempt to get some companies which were behaving in an anti-competitive way off the hook. I took this rather charitable view in the light of the Opposition's repeated claims to be supporters of small business, which of course would be quite adversely affected if Senator Short's amendment were to be read literally. It may be that I was wrong, in that when it comes to a choice between supporting and protecting big business or small business, the large corporations get the Opposition's support, if not every time, at least in this instance. But I will sit back and at least wait to hear what Senator Short has to say on that issue. Obviously, it is necessary that in this, as in all other matters, all relevant evidence should be taken into account before an inference is drawn. As I said, I thought that was the purpose of Senator Short's amendment. That it clearly was not has been indicated by the Opposition's apparent insistence on pursuing the matter today. In any event, the Government has come up with an amendment which says that an inference can be drawn only after all other relevant evidence has been taken into account. We certainly will be supporting that, since that is as much as we would expect under the circumstances. Having heard Senator Evans refer to the explanatory memorandum on this clause, I hope that in future the courts will pay more attention to such extrinsic aids to statutory interpretation as the explanatory memoranda and, indeed, to the Committee stage statements of intent from the Minister concerned, particularly when the Minister dishes out such an erudite explanation and background lecture as was given just a moment ago. Senator SHORT(Victoria)(5.10) —First of all I wish to thank the Minister for Resources and Energy, Senator Gareth Evans, and Senator Haines, for their contributions this afternoon. In particular I wish to thank the officers of Senator Evans's Department who joined Senator Haines and me a couple of weeks ago when this matter was deferred. They sat around a table with us to try to work out an agreed compromise form of words. We had some difficulties in that exercise, as is obvious. The Government's amendment-for which I thank Senator Evans- to insert after line 21 of clause 17 on page 7 the words `after all the evidence has been considered' after the words `notwithstanding that' does not meet the point the Opposition had in mind when this matter was raised, but I will return to that later. The first comment I really must pick up is Senator Haines's remark that the Opposition's approach to this amendment reflects a pro-big business attitude, relative to our attitude to small business. I would argue very forcefully that nothing could be further from the correct situation. The whole purpose of our amendment is to ensure-Senator Evans himself has said in this chamber that this is the intent of the legislation-that normal, vigorous competition will be preserved, encouraged and protected. That is really what small business in this country is all about. The competitive process is the life blood of small business. The whole nature and concept of entrepreneurship revolves around the need for small business to have the surety that it is operating in a highly competitive environment. If it is not operating in a highly competitive environment, then the strong will survive and the weak will be squeezed out. We must have a competitive environment to enable small business to flourish. Far from our having a pro-big business attitude in relation to this clause, as Senator Haines has stated, our whole proposition has been put forward on the basis that it must be quite clear that a competitive business environment will be encouraged. We say that there is doubt about that in relation to the Government's proposal in section 46, particularly section 46 (7). As Senator Haines will be aware, when this was debated last time we voted for the removal of that sub-section. The amendment I moved on 17 April to insert a new sub-section-sub-section 46 (8)-would have provided a fall back position, as we had lost the battle to get section 46 (7) removed. The proposal Senator Evans has put forward as a possible form of compromise does not seem to the Opposition to add anything at all. Certainly it goes no way towards what was intended in our amendment. Indeed, I would argue that to insert the words `after all the evidence has been considered' is really a gratuitous thing to say to the judiciary in our country. If the judiciary, or whoever is considering a case, does not take all the evidence into consideration in reaching a final decision, then it has been dilatory and not fully responsible in its operations. So to add those words is gratuitous, and if I were a member of the judiciary operating in that environment I would find those words somewhat offensive. We tried to reach an effective compromise, we did not do so, and the Opposition continues to maintain that section 46 (7) is bad law. We support the view of the Law Council of Australia that the section is confusing. We have received similar representations from a wide range of business interests in the community, both large and small. If that range of users, or clients, if you like, in the community have real concerns about the intent of this legislation, then we feel that it must be clarified. On behalf of the Opposition, I must say that I regret that the Government does not see this our way. I believe the Government is now introducing into the business law of this country a very confusing and potentially dangerous piece of legislation. For that reason we will press our amendment for the addition of new section 46 (8). We do not find the Government's latest suggested amendment acceptable. Senator MICHAEL BAUME(New South Wales)(5.17) —I express my concern at the Government's lack of support for Senator Short's amendment because there are real situations that emerge in commercial life which would push a genuinely competitive operator into a position where the inference would be almost forced on a court by this legislation that he was behaving improperly. This is particularly in the context of the absurd proposition being maintained about what is a market. As I mentioned earlier, the Australian Capital Territory is defined as a market in respect of power going to one operator in that market, even though in all practical senses the Australian Capital Territory is part of New South Wales. I refer specifically to the meat industry. I suggest that the Minister for Resources and Energy (Senator Gareth Evans) apply his mind to this kind of problem because of the situation that is created if people trade at a loss. Despite what Samuelson had to say about losses, there are many instances where a corporation has the choice between suffering two different kinds of loss. For example, a meat processor faces a particular kind of loss if he is obliged to close his meatworks for a while because of a lack of supply of cattle. The loss he suffers then is the loss of maintaining that plant in a closed-down state. That is a very heavy loss. On the other hand, he can decide to suffer a less severe loss by maintaining that plant in operation, but nevertheless suffering a trading loss because the price of the cattle he purchases will be higher than the end result that he will earn after adding the cost of processing. In other words, it may be commercially sensible to suffer a less severe loss than he would otherwise have suffered had he simply kept his plant shut. Here we have a situation where in a puny market like the Australian Capital Territory a meat processor could be held to be in a position of power, which is absolute nonsense in what is, in effect, a massively competitive market-place when one includes the Australian Capital Territory in New South Wales, but because he appears in this puny market of the Australian Capital Territory as someone of dominance, he would then be held to be subject to this requirement. That is an arrant nonsense. So I cannot see how the points that the Minister representing the Attorney-General has made will in fact protect such an operator who is simply giving himself a lower loss than he would otherwise suffer had he undertaken a different course of action. I would be grateful if the Minister could advise me what would be the response to such a situation under the Bill as the Government proposes it, and why in this case it is not necessary to add Senator Short's clause to protect an operator in such a situation. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.21) —We were told that Senator Michael Baume was a bit of a terrier, but I wish to God that he would stop snapping at heels and let this clause pass so we can get on to something else. Senator Durack —He will, don't worry. Senator GARETH EVANS —We have had a pretty solid debate on this clause. Is he as bad as this in the Party room? Senator Durack —I would rather have him than you. Senator GARETH EVANS —The feeling is mutual. No, I am not sure that that is true. As to the point he made about the definition of `market' and the way in which it could be construed as just applicable to the Australian Capital Territory, which might be a commercially odd description, given the Australian Capital Territory's part in a larger New South Wales scheme of things, I make the point simply technically that section 46 is not construed by that definition of `market' which has regard to the description of a Territory. That was put there only in relation to section 50. So there would be normal, commercial, legal considerations as to what a particular market is and what its metes and bounds are-no pun intended. As to the suggestion that there are particular kinds of loss situations which a company might get itself into for perfectly sound and understandable commercial reasons having nothing to do with any predatory purpose, might I just make the point clearly, once and for all, that section 46 does not anywhere say that any trader trading at a loss is for that reason manifestly guilty of predatory conduct under section 46. It says that predatory purpose can be inferred from particular objective circumstances. We all know, as the explanatory memorandum spells out, that one such set of circumstances may well be trading for a period of time at a loss, below average variable costs and so on. That was the point of the previous debate. But it does not follow at all that because someone trades at a loss either prima facie or certainly at the end of the day one is obliged to conclude that that person is thereby caught by section 46; it depends on all the evidence. In the sort of circumstances that Senator Michael Baume is talking about we would have the trader very much in there explaining himself to the Commission in those terms, and of course defending any litigation that might be misguidedly set in train against him, explaining his commercial circumstances and explaining the basis of the commercial decision. Under those circumstances it is very difficult, if not impossible to imagine even the most ill-equipped court, with the least possible experience of the real world, and with all the evidence of that kind properly before it concluding that section 46 was infringed under those circumstances. I honestly do not think that there is any foundation to Senator Michael Baume's concerns. Senator Short was extremely frank in his contribution to this debate. He made it clear that he was more about frying bigger fish than clarifying the operation of section 46 (7). He was really about trying either to oppose the section as a whole or, failing that, to minimise its scope as far as was possible. That is clearly what the effect of his amendment was, to limit and circumscribe the scope of it, and that is why the Government has been unable to accept it, and that is why the Australian Democrats, now that they have, with respect, sorted out what it is all about, are happy, and I am indebted to Senator Haines's contribution, to accept a provision which does not go to clarify the clause, but without in any way-and I acknowledge what Senator Short said-significantly altering its substance. I do not think the clarification in issue here would be construed as offensive by even the least robust judge whose task it was to interpret this clause. Courts often find themselves overinstructed by legislatures as to how they are to respond to a particular clause, but I believe this amendment which I am foreshadowing, but have not yet formally moved, will in fact do the job of clarification. It will not do the job of gutting and filleting the section, which Senator Short rather hoped it might, but that is because we do want the section alive, well and viable, and not gutted and filleted in that way. Senator SHORT(Victoria)(5.26) —I do not want to prolong the debate any longer, but it is quite clear from the contributions that have been made that when this comes to the vote the Government is going to win. For the ease of handling, I want to get a repeat of the assurance that I sought and got from Senator Evans on an earlier occasion. When this matter was debated in March I asked Senator Evans: . . . for a clear statement that nothing in the proposed section is intended to affect normal vigorous competition and that the proposed section is intended to protect competition, not individual competitors. In response to that the Minister said: Yes, I am perfectly happy to give the Senate such an assurance. The whole philosophy of this legislation is to promote vigorous competition. The purpose of this clause is to protect the competitive process. It is not to protect individual competitors who may find themselves put to the wall by a proper and vigorous exercise of competitive forces in the market-place. Senator Short offered a very apt description of how legislation of this sort should be construed and I am happy to give the assurance in the terms in which he sought it. In the light of the debate that has ensued since then I ask the Minister whether that assurance still holds categorically. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.28) —I am happy to repeat that assurance in precisely those terms. Senator MICHAEL BAUME(New South Wales)(5.28) —I thank the Minister for Resources and Energy for his dealing with the point that I raised. I hope that the Minister is correct in suggesting that even the most ill-equipped court would stumble in the right direction towards the conclusion that he hopes the court would in those circumstances. From my point of view, and I trust from the point of view of the Opposition, one of the most important elements in commercial law is certainty before the law. I regret to say that I still have the feeling that, no matter how confident the Minister might feel that an ill-equipped court would stumble in the right direction, Senator Short's amendment would, in fact, provide the sort of certainty before the law which I believe is an important element in a vigorous free market. Question put: That the words proposed to be added (Senator Short's amendment) be added. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 28 Noes . . . . . . . . . . . 33 —— Majority . . . . . . . . . 5 —— Archer, B. R. Kilgariff, B. F. Baume, Michael Knowles, S. C. Baume, Peter Lewis, A. W. R. Bjelke-Petersen, F. I. MacGibbon, D. J. Boswell, R. L. D. Messner, A. J. Brownhill, D. G. C. Newman, J. M. Carrick, Sir John Puplick, C. J. GCollard, S. J. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G. Durack, P. D. Short, J. R. Guilfoyle, Dame Margaret Teague, B. C. Hamer, D. J. Vanstone, A. E. Hill, R. Watson, J. O. W. Jessop, D. S. Withers, R. G. Aulich, T. McIntosh, G. D. (Teller)Black J. R. McKiernan, J. P. Childs, B. K. Macklin, M. J. Chipp, D. L. Maguire, G. R. Coates, J. Mason, C. V. J. Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M. Cooney, B. Richardson, G. F. Crowley, R. A. Ryan, S. M. Devlin, R. Sanders, N. K. Elstob, R. C. Sibraa, K. W. Evans, Gareth Siddons, J. R. Foreman, D. J. Tate, M. C. Gietzelt, A. T. Vigor, D. B. Giles, P. J. Walsh, P. A. Haines, J. Zakharov, A. O. Jones, G. N. Chaney, F. M. Button, J. N. Walters, M. S. Bolkus, N. Townley, M. McClelland, DouglasParer, W. R. Grimes, D. J. (Senator Robertson did not vote, to compensate for the vacancy caused by the death of Senator Missen.) Question so resolved in the negative. Amendment negatived. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.37) —I now propose to move the amendment to clause 17 which I foreshadowed earlier. I do not believe it is necessary to speak to it. I move: Page 7, paragraph (b), proposed sub-section 46 (7) line 21, after ``notwithstanding'' that,'' insert ``, after all the evidence has been considered,''. Amendment agreed to. Clause, as amended, agreed to. Clauses 23 to 34-by leave-taken together, and agreed to. Clause 35. The CHAIRMAN —We now come to clause 35 for which there are 23 amendments. For the purposes of clarity and focus I intend to take the proposed new sections separately. Senator Durack —Mr Chairman, I wish to make a suggestion to try to speed things up. I think that the first amendment proposed to be moved by the Opposition stands on its own but the remaining 19 amendments that the Opposition proposes to move are really about inserting a new code. Therefore, I suggest that they be dealt with as a whole. The CHAIRMAN —If that is acceptable to the Committee, it is so ordered. Senator DURACK(Western Australia)(5.39) —Clause 35 as it now stands inserts a new Division 1a in the Trade Practices Act after Division 1 of Part V. It concerns product safety and product information. The Opposition's first amendment relates to proposed new section 65b (1), which provides that the Minister may publish a notice in writing in the Commonwealth of Australia Gazette containing a statement that goods of a kind specified in the notice are under investigation to determine whether they may cause injury; or a warning of possible risks involved in the use of goods of that kind. I move the following amendment: Page 16, proposed paragraph 65b (1) (a), lines 5 to 7 at the end of paragraph add: ``together with a statement indicating why it is thought that the goods will or may cause such injury''. The Opposition will be moving a number of amendments to the rest of Division 1A. I think it is fair to say that fairly speedy action will be required in respect of goods covered by Division 1A, whether in the existing form or in the amended form which the Opposition proposes, which refers to goods alleged to be unsafe, prescribed safety standards which are not being observed, the recall or repair of goods, the condition of goods and so on. As I said, the various steps that are provided for in the rest of Division 1A should be initiated with considerable speed by people who will react to ministerial notice of one kind or another. For example, people could respond to court orders or ministerial applications to the court. It is certainly desirable in a code of this kind, which seeks redress and protection for the consumer by requiring a declaration to be made that unsafe or dangerous goods be banned or that repairs of one sort or another be carried out, that there be a fair bit of speed on the part of the Minister and those who respond to any notices that may be given. We believe that our amendment will greatly assist this process. People who are expected to respond promptly will be more likely to be able to do so if they are given, at a very early stage, some indication of the problem. Presumably the Minister would not publish in the Gazette that goods of a specified kind are under investigation unless some complaints had been made, some warnings had been given to him or he had been given information of some kind about the goods. It may be that at that stage he would not have a great deal of information to give. A statement which just says that goods are under investigation does not really tell anybody anything that they would need to know. Presumably the person who is supplying the goods and who is under investigation would, as a responsible person, want to know what it was about so that he could take action. People may not be able to identify the complaints. Others may know the reasons for the complaints and a notice in the Gazette may hurry them up and alert them to the need to do something about the problem. However, in many cases they may not know the nature of the complaint. As I said, the Minister would have some idea as to why the investigation is being carried out. Hopefully, there would be some basis for it. We are simply suggesting by this amendment that he should give an indication of why goods are being investigated and why it is thought they may cause injury. It does not seem to me that the amendment would place any added burden on the Minister to do this. The course proposed by our amendment could be advantageous. It could help to resolve problems at even an earlier stage on a voluntary basis. The Opposition has advanced this amendment for those reasons. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.46) — The Government opposes the amendment which would require the Minister, as Senator Durack says, when publishing a notice warning the public that certain goods are under investigation, to publish a statement of reasons why it is thought the goods will or may cause injury. The difficulty about that is that, in cases where the goods are only under investigation, the Minister will not know why the goods cause injury. That is the very reason why the goods are under investigation in a sense. He may only know-in fact he probably usually will only know, except in the most obvious cases as to a causal relationship-that certain injuries have been reported. When the Minister does know of the reasons why the goods cause injury or, I suppose, even just when he knows that injuries have been caused in association with the particular good in question, even though the causal relationship might not be fully known, then it would be appropriate to issue a notice under section 65b (1) (b) where there is a warning of possible risks involved in the use of goods of a kind specified in the notice. It is difficult to see that the company whose goods are in issue here is going to be any better informed as to the nature of the impending investigation by the kind of statement of reasons that Senator Durack wants when we have a situation where the relationship between the product and the injury in question is not obvious and the Minister himself does not know about it. Either it will be obvious, in which case we will not be advancing the position of the company or the supplier any more, or it is not obvious, in which case the Minister will not be able to put a coherent statement together that will advance anyone's knowledge. So although at first blush it might look an attractive gesture in the direction of better information and less arbitrary governmental behaviour and so on, on any kind of faintly close scrutiny, the rationale, I would suggest, for this amendment disappears. Senator MICHAEL BAUME(New South Wales)(5.48) —I have a slight difficulty which relates to the general question of notices published in the Commonwealth of Australia Gazette being taken to be advice to the people involved. I notice that the Law Council of Australia expressed some concerns on this score. The Council made the point that, notwithstanding the drastic effects on a corporation which is the subject of a notice issued under this new division, with one exception there is only a requirement that the Minister publish the notice in the Gazette. There is no requirement that the Minister directly notify the corporations involved. In the Council's view the legislation should require written notice to be given to all relevant parties where their identities and addresses are known. I must say that I feel that there may be some merit in that view. I wondered what the Minister's attitude was. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(5.49) — The Minister's attitude is to turn to page 28 of the Bill and look at proposed new section 65s where that very requirement to notify the persons affected by the publication in the Gazette is spelt out. Amendment negatived. Senator DURACK(Western Australia)(5.50) —by leave-I move: (4) Page 16, proposed paragraphs 65C (1) (b) and (c), lines 28 to 31, leave out paragraphs, insert the following word and paragraph: ``or (b) in respect of which there is in force an order under sub-section (5) or (7).''. (5) Page 17, proposed sub-sections 65c (5), (6) and (7), lines 8 to 21, leave out the sub-sections insert the following sub-sections: ``(5) Subject to section 65j, where, on the application of the Minister, the Court is satisfied that goods of a particular kind will or may cause injury to any person, the court may make an order declaring that the goods are unsafe goods. ``(6) An order made under sub-section (5) remains in force until the end of 18 months after the date on which the order is made, or such shorter period as is specified in the order, unless the order is rescinded before the end of that period. ``(7) Subject to section 65j, where- (a) a period of 18 months has elapsed after the date on which an order is made under sub-section (6), being an order in respect of which no shorter period of operation is specified; or (b) the period specified in an order made under sub-section (6) which specifies a period of less than 18 months has elapsed; and (c) there is not a prescribed consumer product safety standard in respect of the goods, the Court may, on the application of the Minister, (d) in a case to which paragraph (a) applies, make an order declaring that the goods are unsafe goods; or (e) in a case to which paragraph (b) applies- (i) if the Court is satisfied that the goods will or may cause injury to any person-make an order declaring that the goods are unsafe goods, and such order shall remain in force for a period of 1 year from the date on which the order is made; or (ii) make a permanent order declaring that the goods are unsafe goods.''. (6) Page 17, proposed sub-section 65c (9), lines 33 to 41, leave out the sub-section, insert the following sub-sections: ``(9) Where- (a) the supplying of goods by a corporation constitutes a contravention of this section by reason that there is in force an order under this section declaring the goods to be unsafe goods; and (b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods, the person shall be deemed for the purposes of this Act to have suffered the loss or damage by reason of a contravention of a provision of Part V. ``(10) An order under sub-section (5) may be varied or rescinded by the Court at any time.''. (7) Pages 19 and 20, proposed new sub-sections 65f (1), (2) and (3), line 28 (page 19) to line 33 (page 20), leave out the sub-sections, insert the following sub-sections: ``(1) Subject to section 65j, where- (a) a corporation (in this section referred to as the `supplier'), in trade or commerce, supplies on or after 1 July 1986 goods that are intended to be used, or are of a kind likely to be used, by a consumer; (b) any one or more of the following conditions are met- (i) the goods are goods of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard; (ii) the goods are goods of a kind in relation to which there is in force an order under sub-section 65c (5) or (7); or (iii) the Court is satisfied that the goods are goods of a kind which will or may cause injury to any person; and (c) the Court is satisfied that the supplier has not taken satisfactory action to prevent the goods causing injury to any person, the Court may, on the application of the Minister, make one or more of the following orders- (d) an order requiring the supplier to take action within the period specified in the order to recall the goods; (e) an order requiring the supplier to disclose to the public, or to a class of persons specified in the order, in the manner and within the period specified in the order, one or more of the following- (i) the nature of a defect in, or a dangerous characteristic of, the goods identified in the order; (ii) the circumstances, being circumstances identified in the order, in which the use of the goods is dangerous; or (iii) procedures for disposing of the goods specified in the order; or (f) an order requiring the supplier to inform the public, or a class of persons specified in the order, in the manner and within the period specified in the order, that the supplier undertakes to do whichever of the following the supplier thinks appropriate- (i) except where the order identifies a dangerous characteristic of the goods-repair the goods; (ii) replace the goods; (iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods, within the period specified in the order. ``(2) Notwithstanding sub-paragraph (1) (f) (iii), where the Court, in an order made under sub-section (1), requires the supplier to take action under paragraph (1) (f), the Court may specify in the order that, where- (a) the supplier chooses to refund the price of the goods; and (b) a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier, the amount of a refund may be reduced by the supplier by an amount attributable to the use which a person has had of the goods, being an amount calculated in a manner specified in the order. ``(3) The Court may, where it makes an order under paragraph (1) (e) or (1) (f), give directions as to the manner in which the supplier is to carry out the recall of goods provided for in the order.''. (8) Page 20, proposed paragraph 65f, paragraph (4) (a), line 36 leave out ``notice'', insert ``order''. (9) Page 21, proposed paragraph 65f, paragraph (5) (a), line 2, leave out ``notice'', insert ``order''. (10) Page 21, proposed sub-section 65f (7), leave out ``a requirement made by the Minister'', ``an order made''. (11) Page 21, after proposed new sub-section 65f (9), add the following sub-section: ``(10) An order under sub-section (1) may be of limited duration or may be expressed to have effect for a period specified in the order and may be varied or rescinded by the Court at any time.''. (12) Page 21, proposed section 65g, leave out the section, insert the following section: ``65g. Where an order under sub-section 65f (1) is in force in relation to a corporation, the corporation shall not in trade or commerce- (a) where the order identifies a defect in, or a dangerous characteristic of, the goods-supply goods of the kind to which the order relates which contain that defect or have that characteristic; or (b) in any other case-supply goods of the kind to which the order relates.''. (13) Page 22, proposed section 65H, lines 2 to 13, leave out the section, insert the following section: ``65H. Where- (a) a corporation refuses or fails to comply with an order under sub-section 65F (1); or (b) contravenes section 65G by supplying goods of a kind in relation to which an order under sub-section 65F (1) is in force; and (c) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods, the person shall be deemed for the purposes of this Act to have suffered the loss or damage by reason of a contravention of a provision of Part V.''. (14) Page 22, proposed sub-sections 65J (1), (2) and (3), lines 15 to 35, leave out the sub-sections, insert the following sub-sections: ``(1) Subject to section 65L, before making application to the Court for an order under sub-section 65C (5) or (7) or 65F (1) in relation to goods of a particular kind, the Minister shall prepare- (a) a draft of the order for which the Minister proposes to apply; and (b) a summary of the reasons upon which the Minister intends to rely in support of the application, and shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a `supplier') who has supplied or proposed to supply goods of that kind to notify the Commission, within the period (in this section referred to as the `relevant period') of 10 days commencing on the day specified in the notice, being not earlier than the day on which that notice is published in the Gazette, whether the supplier wishes the Commission to hold a conference in relation to the proposed application. ``(2) A notice of the kind referred to in sub-section (1) shall set out a copy of the draft order for which the Minister proposes to apply and a copy of the summary of reasons in support of the application. ``(3) If no supplier notifies the Commission in writing within the relevant period or within such longer period as the Commission allows that the supplier wishes the Commission to hold a conference in relation to the proposed application, the Commission shall notify the Minister accordingly.''. (15) Page 22, proposed sub-section 65J (4), line 39, leave out ``publication of a notice under sub-section 65C (5) or (7) or 65F (1)'', insert: ``application''. (16) Page 23, proposed sub-section 65K, lines 24 to 35, leave out the section, insert the following section: ``65K. As soon as practicable after the conclusion of a conference in relation to a proposed application under sub-section 65C (5) or (7) or 65F (1) the Commission shall- (a) by notice in writing given to the Minister, recommend that- (i) the Minister make the application for an order in the same terms as the draft order referred to in sub-section 65J (1); (ii) the Minister make the application for the order with such modifications as are specified by the Commission; or (iii) the Minister now make application for the order; and (b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.''. (17) Pages 23 and 24, proposed section 65L, line 37 (page 23) to line 13 (page 24), leave out the section, insert the following section: ``65l (1) Where it appears to the Minister that goods of a particular kind create an imminent risk of death, serious illness or serious injury, the Minister may, by notice in writing published in the Gazette, certify that fact. ``(2) Where the Minister publishes a notice in the Gazette under sub-section (1)- (a) in a case where the notice is published before the Minister has taken any action under sub-section 65j (1) in relation to goods of a particular kind-section 65j does not apply in relation to the application that the Minister may make to the Court for an order under sub-section 65c (5) or 65f (1) in relation to goods of that kind; or (b) in any other case-any action taken by the Minister under sub-section 65j (1) in relation to goods of a particular kind ceases to have effect and, if a conference has, under section 65j, been arranged or such a conference has commenced or been completed without the Commission making a recommendation under section 65k, the Minister may make an application to the Court for an order under sub-section 65c (5) or 65F (1) without regard to the action taken under sub-section 65j (1).''. (18) Page 24, proposed sub-section 65m (1), lines 15 to 27, leave out the sub-section, insert the following sub-section: `(1) Where- (a) an order has been made under sub-section 65c (5) in relation to goods of a particular kind; or (b) the Minister publishes a notice under section 65l in relation to goods of that kind, the Minister shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a `supplier') who supplied or proposes to supply goods of that kind to notify the commission within the period (in this section referred to as the `relevant period') of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in the Gazette, to notify the Commission whether the supplier wishes the Commission to hold a conference.''. (19) Page 24, proposed sub-section 65m (2), line 31, leave out ``notice published under sub-section 65c (5)'', insert: ``order made under sub-section 65c (5)''. (20) Pages 24 and 25, proposed section 65n, line 39 (page 24) to line 5 (page 25), leave out the section, insert the following section: ``65n. As soon as practicable after the conclusion of a conference under section 65m the Commission shall- (a) by notice in writing given to the Minister, recommend that the Minister: (i) apply to the Court for an order that the order made under sub-section 65c (5)- (A) be rescinded; or (B) be varied; (ii) take no action in relation to the order; or (iii) rescind, vary, or take no action in relation to the notice under section 65l; and (b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.''. (21) Page 25, proposed section 65p, lines 7 to 15, leave out the section, insert the following section: ``65p. Where the Commission, under section 65k or 65n, makes a recommendation to the Minister- (a) the Minister shall have regard to the recommendation; and (b) where the Minister decides to act otherwise than in accordance with the recommendation, the Minister shall, by notice in writing published in the Gazette, set out the reasons for the Minister's decision.''. (22) Page 27, after proposed section 65r, insert the following new section: ``65ra. A supplier or other person shall not be prejudiced with respect to rights against or obligations to any other person by voluntarily taking action to give effect to the provisions of this Division.''. These amendments do not, in any way, affect the scheme of Division 1a, which is to ensure safety of goods in various ways, either by banning the supply of dangerous or unsafe goods, by putting a permanent ban on goods or by requiring goods to meet a particular product safety standard and making it an offence to supply goods that do not comply with that standard and then to require compulsory recall of products in certain cases. These new provisions are all triggered and enforced by ministerial orders. There is provision for a conference to be held with the Trade Practices Commission before, in most cases a final order would be made; but, nevertheless, the initiation of the process and the final determination of people's rights is entirely one for the Minister, with, as I said, only the intervention of some conference with the Trade Practices Commission and some recommendation to the Minister on the way, so to speak. There is an enormous increase in ministerial power by the provisions of these new sections. I think it is fair to say that it is most unusual in legislation in this day and age, after more than a decade of development of review of ministerial decisions, of great interest in this subject by many people, and of a bipartisan approach by the parties in this Parliament to the desirability of limiting ministerial discretions and providing for review of ministerial decisions, either on their merits or on legal grounds, to have a return to the fullest type of ministerial discretion, which is unabashed, unashamed, uncontrolled and certainly unreviewed by any process whatever. It astonishes me that the Minister for Resources and Energy, Senator Gareth Evans, who is at the table and who is responsible for this Bill, claims to have been one of the leading proponents over this decade of the desirability and the need for review of ministerial discretions in some shape or form. One of the most obvious and important means of controlling ministerial discretion has been by the Parliament itself and by power of disallowance of regulations or of other ministerial actions. We have gone to great pains in this Senate. Long before the review of ministerial decisions over the last 10 years, this Senate had taken a very live and fruitful interest in limiting ministerial discretions by requiring adequate accountability to the Parliament and the power to disallow such decisions. We can see that in this particular case control of ministerial discretion by the Parliament would not be appropriate. The Attorney-General (Mr Lionel Bowen), in a long letter to the Senate Standing Committee for the Scrutiny of Bills, certainly made the point that in these cases parliamentary review would not be appropriate because of the speed with which these matters must be dealt with. Certainly the Opposition accepts that view. We do not see this as an appropriate method of parliamentary control. The Scrutiny of Bills Committee was very alert to point out the particular problem that is presented by this new Division. In its report of 4 December last year, it has a section on clause 35 under the heading `Lack of parliamentary scrutiny or review'. The question of whether it ought to be parliamentary was canvassed by the Committee and with the Minister. Having referred to and quoted the long letter from the Attorney-General, the Committee stated: The Committee thanks the Attorney-General for this response. It concedes that in this case parliamentary review is clearly inappropriate given the way in which it is envisaged that the new provision will operate and it has decided not to pursue its concerns in relation to the adequacy of the proposed review mechanism at this stage. However it is examining submissions which have been made to Senators by the Law Council of Australia and it may make a further Report to the Senate on the Bill. For some reason or other, that matter seems to have got lost by the Committee in subsequent considerations it made of other aspects of the Bill, and it did not come back to it. But certainly the Law Council of Australia has expressed very grave concern. I do not know why the Standing Committee for the Scrutiny of Bills did not come back to it after the Law Council submissions were available. The Opposition accepts the need for some mechanism to replace this wide ministerial discretion. The amendments we propose are to replace the ministerial discretion with a court order which the Minister would be able to obtain in fairly quick time. Instead of the Minister making the orders and putting them in the Commonwealth of Australia Gazette he would, under our proposed amendments, make an application to the court for an order. The court would then consider whether the Minister's order was justified. That would be a mechanism for review of the decision made by the Minister. The Opposition is aware that in some cases there may be need to be more urgent procedures and that is dealt with in our proposed amendments. Shortening of procedures and elimination of the normal procedures are provided for in one of our amendments to cope with the situation where-as described in our amendment No. 17 at page 11-it appears to the Minister that goods of a particular kind create an imminent risk of death, serious illness or serious injury. The Minister may certify that, and a much shorter procedure would be available to him in a case of that kind. We believe that these amendments are necessary because of the extraordinary ministerial powers, which are not open to review, apart from a conference with the Trade Practices Commission, that may result in a recommendation to the Minister and which he may ignore. That is a very weak process of review. This whole exercise may have major consequences and may cause a major loss to suppliers which they cannot really challenge effectively. The Attorney-General talked about the Administrative Decisions (Judicial Review) Act as being a means of review, but in these cases there would be mainly questions of fact to be determined. Despite the ambit of the ADJR Act, it would seem to be quite inappropriate for the review of ministerial decisions required in these matters, which are, as I said, largely matters of fact. It is really a question of determining whether or not the Minister's decision is appropriate on the facts. There ought be some way that that decision can be challenged. If theses powers remain as they are, great damage could be done to suppliers. If the Minister is wrong, there does not seem to be any redress in such a case. We believe the appropriate way to ban unsafe goods-it can be done in a speedy way-is to apply to a court for an order. No doubt the courts, with their experience in granting urgent and interim injunctions, will be able to oblige if there is that need in a particular case, but we think the rights of suppliers need to be protected. What we have proposed is an alternative procedure which we believe will not inhibit the Minister if he is right. It will protect the consumer and it will protect the supplier. The present code completely ignores the rights and interests of the suppliers. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(6.05) — These amendments remove the power of the Minister to ban unsafe goods from supply and replace it, as Senator Durack has said, with a power to seek an order from the Federal Court of Australia to the same effect. Although there is, once again, some superficial attraction in the argument that has been put by Senator Durack, we believe the reasons for not accepting his amendments are compelling and, indeed, overwhelming, and we reject the amendments accordingly. I think it needs to be acknowledged by Senator Durack that there is a fair possibility that his proposal is unconstitutional. We have advice from the General Counsel Division of the Attorney-General's Department to the effect that it appears that a court, in banning a good from supply, would not be exercising a judicial function. I am well aware that opinions can differ about what is and what is not a judicial function. The law is very tricky on this particular issue. Davidson's case and all the rest I used to lecture about ad nauseam and in my prime I could keep going for an hour and a half at least on the essential characteristics of judicial power. Senator Messner —Spare us! Senator GARETH EVANS —I do propose to spare honourable senators, in deference to Senator Messner's plea from the heart. I acknowledge the point that it is by no means beyond doubt, but there is a very real question, I can assure the Committee, whether Senator Durack's proposal has any constitutional legs at all. Apart from that, the real issues are in policy terms, and the policy reason why this set of amendments is unacceptable to the Government is that of the time and expense that would be involved in seeking a court order. The Australian Law Council contends that the court can make ex parte orders very quickly, but in general a court-based process could be subject to delaying tactics. We are all familiar with the way in which the courts are being used and misused by commercial organisations-very visibly in recent times in the context of takeovers-to secure commercial ends having very little to do with the merits of a particular matter. Furthermore, the expense involved in seeking court orders renders this proposal, we believe, quite impracticable. It appears that the major reason for this amendment is to ensure that there is an independent assessment of all the evidence before a decision is taken to ban a good. That is fair enough, but this would suggest that in the past the bureaucracy has been too willing to recommend to the Minister that a good be banned and that the Minister has been too willing to accept recommendations of that kind. I think it needs to be made clear for the record that in fact the history of the use of the banning power since it was introduced in 1977 would suggest exactly the opposite. Over this period only 29 goods have been banned out of a total of 468 goods which have appeared on the register of alleged hazardous goods. This is a register which lists those goods which have been investigated by consumer affairs agencies in Australia and have been identified as containing some safety related defect. It has never been found necessary to revoke a ban, and the number of complaints by suppliers about the veracity of bans of their goods is negligible. This indicates that a decision to ban a good is taken only after the most stringent examination of all the circumstances. In this light it is considered that the proposal now before us to require Federal Court orders is simply not justified. There is no reason whatsoever to assume that there would be any variation from the pattern of practice that has been established in the past in the administration of these kinds of provisions so far as the future is concerned. In any case, it needs to be appreciated that the new Division (1A) in the Government's Trade Practices Revision Bill 1986 does provide an opportunity for suppliers of goods which are the subject of a proposed ban to seek an independent assessment of the ban by the Trade Practices Commission. This review procedure was discussed with and approved by the Administrative Review Council. I remind the Senate that the Administrative Review Council is the body in which Senator Durack has very often expressed confidence, as I have too, and, indeed, any other honourable senator with even a passing interest in administrative law and the reforms of recent years has done likewise. The Administrative Review Council has been an excellent body which has been very sensible, very objective and very independent of government in its assessments of how administrative review procedures might be improved. The ARC has, in fact, considered and accepted without demur the scheme proposed in this legislation now as constituting quite adequate protection for the interests likely to be affected by banning orders. The Trade Practices Commission, which is to exercise this review function as set out in proposed new sections 65j to 65p, is an ideal body for this purpose because of its expertise. It has to be stressed that the Commission would act as an independent tribunal with its independence being assured by an amendment to section 29 of the Trade Practices Act. It needs to be noted also by honourable senators who are quite properly concerned about review procedures, the possible misuse of ministerial discretion and so on, that the Minister's final decision following a recommendation of the Commission is always subject to review via the Administrative Decisions (Judicial Review) Act 1977 and, covering similar territory, section 163a of the Trade Practices Act. Honourable senators will recall that the AD(JR) Act enables ministerial decisions to be challenged through the courts on the traditional administrative law remedies, or the statutory reincarnation of those remedies, not only on errors of law or excessive jurisdiction and so on, but also on the basis that the decision was reached for improper motives, or on the basis of not having regard to relevant considerations or having regard to irrelevant considerations, and so on. The AD(JR) Act spells out a very large number of grounds for judicial review of a bad ministerial decision-bad in the sense that it does not have regard to those matters to which good decision-making processes should have regard. Senator Durack —What about a straight conflict of evidence? How do we use that in a case like that? Senator GARETH EVANS —A straight merit issue that does not give rise to considerations of misuse of power will show up in the review procedure set out in sections 65j to 65p. With the conference route set out with the Trade Practices Commission and the recommendation which follows in section 65p to which the Minister is obliged to have regard, there is a sufficient fail-safe mechanism. I fully acknowledge that there is a need for some kind of scrutiny of the merits of a decision in a straight conflict of evidence situation but the procedures for getting that kind of review have to be weighed and balanced-the competing attractions of the court process versus the fast track processes that are here involved. I acknowledge the grounds for concern. There has never been any difficulty about that. The Government does not in any way ride cavalier or rough-shod over the concerns that have been quite properly expressed by the Law Council of Australia and others about review procedures. It is just that we strongly argue, with the weight of authority and experience of the Administrative Review Council behind us, that those interests have been properly and effectively taken into account in this legislative approach. The Opposition proposal would place the Federal Court in the difficult position of having to adjudicate on the validity of a banning notice at the trial of a corporation for breach of a notice which it has previously decided can be validly issued. In some jurisdictions it would be possible for the same judge to hear both matters. That is probably just a practical way of expressing the kinds of problems to which the High Court of Australia would have regard in determining constitutional validity and whether there is not some inappropriate or unconstitutional yoking together of judicial and non-judicial functions. One more point that can be made without undue pedantry is that no amendment has been suggested by the Opposition to proposed sub-sections (3) and (4). So the Opposition and the Law Council are happy for the export of prohibited goods to be left to the Minister's discretion but want the banning order to be made by a court. There is some incongruity of approach in that state of affairs. The Government believes that, while it is proper for considerations of the kind that have been raised by Senator Durack to be brought to the attention of this place and for emphasis to be placed on proper review procedures before we move into product recall and matters which can be quite commercially significant in their impact, this legislative scheme addresses those concerns workably, effectively and quickly-as they should be-in practice and does not offend any principles that we in this chamber accept. Senator HAINES(South Australia)(6.15) —The Australian Democrats will not support the amendments moved by the Opposition to clause 35, for a number of reasons. One of the intentions of some of the Opposition's 20 amendments to clause 35 seems to be to have the question of whether goods are unsafe or likely to cause injury referred to the Federal Court of Australia prior to the Minister moving for the recall of those products. I was under the distinct impression that speed was supposed to be of the essence in this exercise, that the powers granted in this clause are emergency or last resort powers, or powers to speed up the whole process. To refer the issue of safety to the Federal Court under those circumstances will only increase the likelihood of injury or something untoward and unpleasant being done to the consumer. Some people have argued to me-certainly some of the Law Council of Australia members have-that judges can be contacted quickly and can be cranked into action just as quickly if circumstances require it. I would have thought that consumers want Ministers to act quickly, with all the restraints on their actions, which Senator Evans has just discussed, under the Administrative Decisions (Judicial Review) Act 1977. A further impediment, via some of the Opposition's amendments, however well-meaning they may be, can only delay matters unnecessarily. The rest of the Opposition amendments are essentially, I believe-I might be wrong-a reflection of its objections to consumer protection legislation generally. It seems to believe in the operation of free market forces, and voluntary self-regulation of behaviour, and it refuses to accept what most of us know to be the case; that is, that, however honest, above board, noble and consumer-orientated most dealers and manufacturers are, there are always those with no conscience who are prepared to risk injury to others to make a sale, to make profits, or whatever. There have been plenty of instances of that in various industries over the years. Clause 35 seems to be an essential element in consumer protection, which is not to say that we do not have an amendment-although that will be dealt with later-regarding its operation in the food and drinks industry, which we believe would be more appropriately dealt with in the States' food laws. The sunset clause that we will propose later is conditional on the States getting their act together and getting into place model food legislation containing the protection encompassed in the legislation before us. I will say a little more about that later. At the moment I will add only what I said a moment ago: The Democrats will not support the Opposition in what appears to be an attempt, whether or not intentional, to render this consumer protection legislation, if not inoperable, at least less effective than is the Government's intention. Senator DURACK(Western Australia)(6.20) —Senator Haines does not really seem to understand how the proposed new Division will operate, much less the Opposition's amendments. I went to great pains when I moved the amendments to point out that, by moving them, the Opposition was not challenging the substance of the Government's amendments. We accept the need for declarations that some goods may be unsafe and may need to be recalled or banned or whatever. Much and all as we may be concerned about those declarations, we are not seeking in the amendments we are proposing to diminish at all those new powers and protections for the consumer. We are simply proposing a different mechanism. We are replacing an unfettered ministerial discretion with a court order so that the Minister's decision can thereby be reviewed by the court. If he decides that he wants to ban goods, he will have to go to the court and establish his case before it. Senator Haines also said that this would slow up the process. That is not the case at all. The present procedures, except in particularly urgent cases which are separately provided for in both the Government's amendments and our own alternatives, require the Minister to allow 10 days before issuing a notice so that a person may apply for a review by the Trade Practices Commission. We have suggested that the proposed order be made available when the Minister applies to a court. Courts are entirely familiar with matters of urgency. They are constantly making interim injunctions, which may be obtained in the middle of the night. I can confirm that for Senator Haines. I got one myself from a High Court judge at midnight on a Friday night. There is nothing with which the courts are not perfectly familiar in making urgent interim orders. An interim order would stand while the matter in question was litigated, if it came to an actual litigation. So the rights of consumers, with which the Australian Democrats are so concerned and which they are so ready to assume the Opposition is ignoring, are entirely protected by the amendments that we have put forward. The only difference between our approach and the Government's approach is that we believe that the suppliers have rights as well. It is all very well for one to get on one's white charger and talk about consumer protection and the rights of consumers, but that seems to represent a very exclusive and narrow view of human rights. As far as the Opposition is concerned, both parties-both the consumers and the suppliers-have rights. In our view, the best way in which to protect those rights is through the court process. It is certainly not to give huge ministerial discretions when the Trade Practices Commission can only make a recommendation. I would be more impressed with Senator Gareth Evans's argument on this matter if the Trade Practices Commission had some determining role, but all it can do is make a recommendation. The Minister can entirely ignore the Trade Practices Commission review and recommendation. The way some of the Ministers in this Government are going on, I would not be at all surprised if that were to happen. We think that our proposal is the only way to protect everybody's rights. We are just as concerned to protect consumers' rights as are Senator Haines and her Democrat colleagues and, indeed, the Government. We have simply added a dimension because, as I have said, we believe that the suppliers have rights as well. Senator SHORT(Victoria)(6.25) —I just want to make a couple of brief comments, prompted mainly by Senator Haines's remarks, concerning the whole question of consumer protection. Senator Durack has said many of the things that I would have pointed out. In particular, he said that our amendments are not challenging the substance of the Government's proposals and that we are simply attempting to replace an all-embracing, unfettered ministerial power with deferral to the courts. It is difficult to deny the validity and properness of that proposal. We live under a system of law which has served us pretty well over many years. What we seem to be doing in this country today is moving more and more towards an administrative type of law with-this Bill is an example-ever-increasing powers going to executive government in the form of ministerial discretion. If we take that too far, I believe, we will lead ourselves into a very dangerous area, whereby much of the activities of government that control business and the activities of individuals in our community will cause these businesses and individuals to become enchained by ministerial, bureaucratic and executive decisions and powers. The main purpose of the Opposition's amendments is not in any way to lessen consumer protection in this area, but rather to subject the processes to more normal courses of the law than is proposed by the Government. I add another point. Senator Haines's remarks concerned me very much. The inference was that the market-place has no place in the pursuit of consumer protection. That proposition is very dangerous, because the inference is that some Minister, some government, some bureaucrat or someone who is not subjected to normal competitive market processes somehow or other knows better what is in the best interests of the consumer than that very wide and democratic collection of people and institutions that go to make up the market-place. I think that is a very dangerous proposition indeed. There is a very real need to take note of the commercial need to protect the consumer on the part of bodies purporting to represent the consumer. Ultimately, if manufacturers or people engaged in commercial activities fail to pay sufficient regard to the needs of the consumer, they will be forced out of business. That is part of the way in which our economy has operated for generations. We are running the risk in this country of fettering the operations of a competitive market-place, operations which, in the debate earlier today on section 46, the Minister for Resources and Energy (Senator Gareth Evans) was at pains to stress he wanted to preserve, protect and encourage. We run the very real risk of, by continual regulation, including regulation in the area of consumer protection, jeopardising the very objectives relating to consumer safety, consumer protection, product development and the improvement of quality in our goods and services and so on. We run the risk of jeopardising the incentive and the ability to achieve those ends. That is a very worrying trend. To my mind, the amendments that the Opposition has moved do not recognise that point enough. As Senator Durack has so rightly and ably pointed out, it is certainly just nonsense for the Government and Senator Haines to say that we propose something which will diminish the consumer protective functions of this legislation. Sitting suspended from 6.30 to 8 p.m. Senator MICHAEL BAUME(New South Wales)(8.00) —I want to raise a matter relating to proposed new section 65R, but before doing so I would like to support the comments made by Senator Short and express concern at the atmospherics of the position put by Senator Haines, suggesting that consumerism has some particular special atmosphere that requires it to receive greater rights than any group in society, particularly suppliers. Surely in our society there should be an equality of rights. There is no one special group that, because of its sophisticated organisation or its political clout in the middle, should receive special attention from any political party which endeavours to represent Australians as a whole. I am particularly concerned at this atmospheric that is generated by some people in this place about the primacy of the rights of consumers as against the rights of everyone else. While it is true that some suppliers misbehave, as Senator Haines quite properly pointed out, I assure her that some consumers misbehave also. In her protestations about the need for all consumers to be protected, she would be more balanced if she recognised that consumerism is not of necessity in the best interests of all Australians and that in discussing laws of this kind, we must recognise that we should be seeking simply to do what is best for Australia. That is why I reject the proposition totally that simply because something is in the best interests of consumers it is necessarily in the best interests of all Australians, no matter what disadvantage is imposed on other sections of the society. Perhaps we rushed through the second reading of the Trade Practices Revision Bill too quickly if we did not make some pretty clear points about the need to have a balanced approach in trade practices legislation towards the needs of all participants in this area. I am concerned that the pendulum, which may well have once swung too far towards suppliers and too far away from the rights of consumers, may well be swinging much too far in the direction of consumers to the disadvantage of suppliers and their employees-I stress `and their employees'-when one has what could be described in some areas as rampant and irresponsible consumerism which is damaging our society as a whole and our capacity to provide employment opportunities. That point has relevance to the next point I wish to make. Like Senator Short, I am of the view that to an extent the Opposition perhaps has not gone far enough in trying to ensure that this legislation is fair, just and right in its dealing with suppliers. In particular I refer to proposed new section 65R, where there is a lack of definition of the word `recall'. The Law Council of Australia has raised this issue, as has the Senate Standing Committee for the Scrutiny of Bills, of which I am a member. Proposed new section 65R provides penalties for a person, of a fine of $2,000 or imprisonment for a period not exceeding 12 months, or in the case of a person not being a body corporate, a fine not exceeding $10,000. They are pretty solid penalties, particularly for a person who could end up spending 12 months in gaol if the requirements of this section are breached. Clause 35 inserts a new Division under which it would be an offence for a supplier to fail to notify the Minister within two days where the supplier voluntarily takes action to recall goods, but no definition is given of what constitutes a recall of goods for the purposes of this provision. The Scrutiny of Bills Committee was concerned that there might be some uncertainty as to the obligations placed upon suppliers by proposed new section 65r. It therefore drew the new section to the attention of the Senate under principle 1 (a) (i), in that it might be considered, by virtue of its uncertain application, to trespass unduly on personal rights and liberties. The Scrutiny of Bills Committee conveyed this view to the Attorney-General (Mr Lionel Bowen), who responded: The Government is proposing an amendment to new section 65r in the Senate, to clarify that suppliers need only notify the Minister of voluntary recalls of goods where the goods are recalled because they will or may cause injury, that is where they contain some health or safety related defect. For example, the section will not require a paint manufacturer to inform the Minister of a recall of paints that were wrongly tinted. As there is no definition of `recall' in the Act, the ordinary meaning of the word applies. The Concise Oxford Dictionary defines `recall' as `summon to return from a place'. The Scrutiny of Bills Committee, as is customary from that courteous Committee, thanked the Attorney-General for this response; but two things emerged from it. Firstly, the improvement in this proposed section was one of the very many improvements that the Government incorporated after rushing this Bill through the other place, and I am glad to say that significant improvements have been made. The Scrutiny of Bills Committee suggested, nonetheless, that the dictionary meaning cited by the Attorney-General is not as clear as is desirable in a provision imposing an obligation enforced by a penal sanction and by a period in the `cooler'. The dictionary meaning would not appear to encompass, for example, the publication of a notice by a motor car or motor bike manufacturer informing persons who may have purchased a particular model of car or bike that there is a potential defect in the machine and that they should see their nearest service agent in order to have it rectified. Nevertheless, such notices are regarded as recalls by the consumer movement. A similar confusion is apparent in the terms of proposed Division 1a. Notices under new section 65f are referred to as `product recall orders', yet new section 65f (1) appears to draw a distinction between a requirement under paragraph 65f (1) (d) to recall goods and a requirement under paragraph 65f (1) (f) that, for example, the supplier undertake to repair or replace goods. The Scrutiny of Bills Committee said that in view of the potential uncertainty as to what may constitute a recall, the Committee would continue to draw new section 65r to the attention of the Senate under principle 1 (a) (i) in that it may be considered to trespass unduly on personal rights and liberties. It appears that the Opposition is not making amendments on those grounds. It appears to me to be a matter of some concern. It is a concern which the Law Council raised and it made the point that, in view of the penalties, `recall' should be defined. I would be grateful if the Minister for Resources and Energy (Senator Gareth Evans) could explain to me why that is not happening. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(8.10) —I am happy to respond as best I can to Senator Michael Baume's concern. It is the case that the Senate Scrutiny of Bills Committee commented that, notwithstanding the Attorney-General's response, it still considers the meaning of `recall' in section 65r as being uncertain. The Government does not agree with that point of view. Section 65r is intended to ensure that the Minister is informed when a supplier voluntarily takes action to recall goods to assist in protecting the public. It is likely that a broad interpretation will be given to section 65r because of its public safety purpose. Where a supplier asks for the return of goods to either the supplier or its servants or agents, this is sufficient to bring section 65r into operation. The Government takes the view that the meaning of the word `recall' is well understood by suppliers. The example given by the Scrutiny of Bills Committee to which Senator Baume referred-the motor cycle or motor car manufacturer informing owners that they should return the machine to the nearest service agent for repair-is clearly an example of action that would be understood by suppliers to constitute a recall of the goods. Indeed, this form of action often appears in advertisements under the heading `Vehicle recall'. I have some examples of that in my hand at the moment. Fundamentally, this action withdraws from the possession of consumers a good for repair by a servant or agent of the manufacturer. Viewed in that way such action has exactly the same effect as a supplier recalling the goods for repair and would be encompassed by section 65r. The ordinary meaning of recall that I have tried to describe also applies to section 65f (1) (d). The presence of section 65f (1) (f) (i), which relates to repairing the goods, is an independent power which may or may not be used in conjunction with the recall power in paragraph (d). Whatever the technicalities of all that may mean, the simple point is that in each case recall is to be understood in the ordinary sense of that word. We do not share Senator Baume's sense of awe and mystery as to what it all means when thus appearing. Under the circumstances we do not consider it necessary to define `recall' in the Act. Question put: That the amendments (Senator Durack's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 27 Noes . . . . . . . . . . . 34 —— Majority . . . . . . . . . 7 —— Archer, B. R. Kilgariff, B. F. (Teller)Baume, Michael Knowles, S. C. Baume, Peter Lewis, A. W. R. Bjelke-Petersen, F. I. MacGibbon, D. J. Boswell, R. L. D. Messner, A. J. Brownhill, D. G. C. Newman, J. N. Carrick, Sir John Parer, W. R. Collard, S. J. Puplick, C. J. G. Crichton-Browne, N. A. Sheil, G. Durack, P. D. Teague, B. C. Guilfoyle, Dame Margaret Vanstone, A. E. Hamer, D. J. Watson, J. O. W. Hill, R. Withers, R. G. Jessop, D. S. Aulich, T. McIntosh, G. D. (Teller)Black, J. R. McKiernan, J. P. Bolkus, N. Macklin, M. J. Childs, B. K. Maguire, G. R. Chipp, D. L. Mason, C. V. J. Coleman, R. N. Morris, J. Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M. Cooney, B. Richardson, G. F. Devlin, R. Robertson, E. A. Elstob, R. C. Ryan, S. M. Evans, Gareth Sanders, N. K. Foreman, D. J. Sibraa, K. W. Gietzelt, A. T. Siddons, J. R. Giles, P. J. Tate, M. C. Haines, J. Vigor, D. B. Jones, G. N. Zakharov, A. O. Walters, M. S. Coates, J. Townley, M. Button, J. N. Chaney, F. M. Grimes, D. J. Reid, M. E. Crowley, R. A. Short, J. R. Walsh, P. A. (Senator McClelland did not vote, to compensate for the vacancy caused by the death of Senator Missen). Question so resolved in the negative. Senator HAINES(South Australia)(8.20) —I mentioned in some comments I was making earlier with regard to the Opposition's 20 amendments to clause 35 that in fact we had our own amendment on a different matter with regard to this clause. Our amendment involves the application of a sunset clause to those goods which are foods or drinks intended for human consumption. I move: Page 28, at the end of clause add the following new section: `Cessation of Division in respect of foods and drinks `65u. At the expiration of 2 years after the day on which this Division comes into operation, this Division shall cease to have effect in respect of goods which are foods and drinks intended for human consumption.'. The intention of this amendment, which effectively inserts a sunset clause on those particular goods, is to give the industry time in which to pressure the States into introducing model food legislation, and in particular into introducing consumer protection legislation in the area of food and drink supply and sale which is uniform and which incorporates all the requirements contained in the Federal trade practices legislation before us. It is there as a sunset clause because the industry believes that it will take something like two years to chivy the States into getting their food Acts into line. It does not, of course, mean that at the expiration of those two years, if the States have not done what is required of them, foods and beverages intended for human consumption will fall outside the legislation, because it is always within the power of the Parliament to ensure that the provisions continue to apply if the conditions that we are looking for are not met. In fact, I received yesterday a letter from the industry which indicated that following discussions it was in support of a sunset clause in order, it says, to `enable us, in this time, to have incorporated within the Model Food Act similar provisions'. That is, similar provisions to those which would apply to it under the Federal legislation. The letter went on to say that the industry is `unanimous in the view that, if mandatory product recall procedures are to be incorporated in the law, then as far as food and beverage provisions are concerned they properly belong in the food law'. It continues to say that the industry supports the amendment. I do not think there is any need to go on at any length about this. We certainly believe that foods and beverages intended for human consumption should be subject to all the legislation and regulatory requirements that would make them fit for human consumption, and allow their recall if they fall short of that; but we believe that it is better, at least at this stage, to give the States the opportunity to get themselves organised and to put laws into place on a State by State basis so that legislation is uniform and we do not have operating the sort of situation which has operated in the past whereby suspect food has been banned in one State and then moved across State borders to be sold with impunity. So we would like to see imposed a sunset clause that would force the States to act more speedily than they are showing any inclination to at the moment, and of course, the reserve power would continue to allow the Federal legislation to operate in the event that the States did not act. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(8.24) —If one could believe that a sunset clause in this respect was genuinely going to result in, firstly, a burst of feverish activity by the States to get their uniform law into shape and, secondly, an enthusiastic burst of capitulation by the food and drink manufacturers to recall provisions in such uniform legislation which they are not awfully impressed with in this legislation here today, one might have some warm and affectionate regard for Senator Haines's amendment. But having a certain resistance to a belief in elves and fairies occupying the bottom of my particular garden, I am afraid that I am left with a rather sordid suspicion that this sunset clause is no more than a gesture thrown in the direction of the industry in a hope that it will get off the Australian Democrats' backs and on to some other thing of perhaps arguably greater moment. That is a terribly cynical thing for me to believe, but I am quite prepared to accept Senator Haines's cross her heart and hope to die assurance that there is no substance whatsoever in that particular thing. But for the moment we are left with a proposal which is, to put it most kindly, quite an implausible one. One of the best ways of summarising the difficulties associated with getting the States to agree on model legislation, whether it is about food or anything else, is a splendid quotation from Mr Justice Michael Kirby which the Food Industry Council of Australia actually put in its paper `A Case for National Food Legislation' in February 1984. The quote is in the following terms: It is ironic that on the continent of Europe, divided by language, separated by culture and history and ancient enmities, not blessed with a common source, served by utterly different legal institutions and personnel, they can agree on uniform laws on so many varied topics. Yet we in Australia, with a common language and traditions, with like institutions and a great degree of cultural homogeneity, find it difficult even to agree on the time of day. There starkly and with impressive succinctness is the answer to Senator Haines's aspirations about model food legislation. Let me now return to my brief and tell Senator Haines what else is wrong with her clause. No one disputes that unsafe goods should be removed from the market. It is most urgent that unsafe foods should be kept out of the hands of consumers. There have been many recent examples of that, usually involving salami, fish products contaminated with salmonella, imported wine adulterated with anti-freeze, and other like products. Senator Haines —What was that you were saying about the European countries all agreeing? Senator GARETH EVANS —They do not export such products to each other, just to people like us. There is no national legislation providing for the recall of unsafe products. In short, there will now be national legislation, if we accept the language of the Trade Practices Act in its present form, which will be applicable to all suppliers of goods equally. The powers in question are essentially reserve powers; they are not especially scary. They ought to be in the legislation and kept there permanently. It is all very well for the Democrats to say that, in the event that their aspirations, which they may or may not believe in, for model food legislation are not realised, under those circumstances the trade practices legislation can be further amended in two years time and these provisions can be retained within that particular statute. Of course, it is not inconceivable, given what we know about the operation of electoral laws and the prospects of elections, that the Democrats may not be in a position to help out the national weal in that particular respect. I know that is thinking the unthinkable so far as Senator Haines is concerned, but I assure her that it is very thinkable so far as the rest of us are concerned, but I urge her seriously to contemplate the possibility that the model food legislation, however worthy we may think it is, will not get very far in that period or, if it does come into existence, will not extend to recall powers of this particular kind, and that at the end of the two-year period we could be left with no effective recall legislation at all. That is the risk one takes in adopting this particular course. I simply hope that the Democrats have thought through those risks, because I have no doubt at all that the cynics and opportunists on the other side of the chamber, motivated of course by nothing like the high minded considerations that have moved the Democrats on this occasion, will probably leap at the opportunity to support this amendment as one further way of potentially whittling down the scope of the Trade Practices Act. It is an unhappy excursion on which the Democrats are embarking. It is an unhappy journey, I should say, echoing Senator Sir John Carrick, whose rhetoric I am missing in this debate. I have been two weeks without it and it is time for another fix. On this particular journey that the Democrats have embarked upon there may be an unhappy ending, and I suggest that they rethink their amendment before we put it to the test. Senator HAINES(South Australia)(8.30) —I had not for a moment realised when I suggested two years as the end time for the sunset clause that in fact that may be a stick by which to prevent the Government from calling an early election. I point out to Senator Gareth Evans that if we stick to the two years that will bring us to April 1988. If the Australian Democrats are to be wiped out at the next election, as Senator Gareth Evans gleefully asserts is going to happen, I introduce him to the element in the Constitution that says that we will remain here until the end of June that year. The Minister will have whatever assistance he needs, should the States not get their acts together with regard to model food legislation, to extend the time. If, however, the Minister is planning on calling a double dissolution I ask him to let me know so that I can perhaps bring the sunset clause back a little. However, until we know whether he is going to call a double dissolution we will go for an ordinary election and therefore assume that we will still be around in April 1988, when the Minister may need to attend to the Act again. Senator DURACK(Western Australia)(8.31) —I think that this amendment advanced by the Australian Democrats is a particularly cynical exercise on their part to try to please everybody all the time. The verbal interchange that has just taken place between Senator Haines and Gareth Evans only confirms the general cynicism of this exercise by the Democrats. They have made some offers of co-operation if the Government decides to call an early election. I can assure Senator Haines that a similar sort of co-operation could not be expected from the Opposition in relation to cynicism of that sort. I would be far more impressed by the Democrats' amendment if the Democrats had brought forward some general sunset clause in respect of the whole of proposed new Division 1a. If it is good enough for the food and drinks manufacturers to have the benefit of either some voluntary recall system which can be put in place or some model legislation agreed on by the States, I would have thought that all suppliers should be treated in the same way. From the Opposition's point of view that would have been the appropriate course for the Government to have taken if it genuinely did not want to expand central powers in this area, if it genuinely believed in lowering regulation on business and in self-regulation. We hear rhetoric all along these lines from the Prime Minister (Mr Hawke) downwards. Now, after all this rhetoric the Government has turned around and introduced the extensive new regulations contained in this Bill. I think that neither the Government nor the Democrats have come out of this exercise very well at all. It is very interesting to see that the Australian Democrats can be prevailed upon by a certain lobby group, the food and drink manufacturers, for some reason which escapes me. It escapes me why the Democrats should have any tender regard for the manufacturers' desire for model uniform legislation or a voluntary recall system when they have had no regard whatever for other suppliers and manufacturers. In fact, they have been encouraging the Government to increase the burden of regulation on other suppliers and manufacturers throughout Australia in their general attitude to this trade practices legislation. Nevertheless, having said all that, the fact is that this amendment has the possibility of reducing what we believe to be totally unnecessary burdens. I hope that the Democrats will re-think their very limited principles in this area particularly if they are going to be doing more deals with the Government-for example, if they get the nod about an early election at some stage. They might come back with a general sunset clause to enable codes for voluntary recall to be put in place, giving all industry in Australia the benefit of the tender regard which in this case they are showing for the food and drink manufacturers. I just give that counsel to the Democrats in the hope that it will do some good. I do not think sermonising is something that I indulge in here very often. Certainly, I think it is somewhat useless directing it at the Democrats whose general performance is one of seizing on little pockets of votes here and there. I suppose that that really is why they moved this amendment. They think it may do them some good in some respect. Be that as it may. As I have said, the Opposition sees this as a very small step in the right direction. We are very displeased and disappointed that the Democrats have not seen fit to take a few more steps in a principled direction in relation to this Bill. However, as I said, be that as it may. We will support this amendment, minor in all as it may be. Perhaps, as I said on another occasion, it will lead to some giant strides by the Democrats in favour of principle instead of expediency. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(8.37) — Cynical the Australian Democrats may be, but their cynicism pales into the small C variety when contrasted with the capital letter performance and the big O opportunism we have just heard from Senator Durack on this occasion. The Government believes that this legislation should be industry generalised, not industry specific in any way, shape or form. It is a principle which we think it is important to maintain. For that reason we propose to divide on this amendment, not least to enjoy the spectacle of the discomfort of Senator Durack and the Liberals sitting down with the Democrats on the same side of the chamber after that speech. Question put: That the words proposed to be added (Senator Haines's amendment) be added. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 35 Noes . . . . . . . . . . . 28 —— Majority . . . . . . . . . 7 —— Archer, B. R. Lewis, A. W. R. Baume, Michael MacGibbon, D. J. Baume, Peter Macklin, M. J. Bjelke-Petersen, F. I. Mason, C. V. J. Boswell, R. L. D. Messner, A. J. Brownhill, D. G. C. Newman, J. M. Carrick, Sir John Parer, W. R. Chipp, D. L. Puplick, C. J. G. Collard, S. J. Sanders, N. K. Crichton-Browne, N. A. Sheil, G. Durack, P. D. Short, J. R. Guilfoyle, Dame Margaret Siddons, J. R. Haines, J. Teague, B. C. Hamer, D. J. Vanstone, A. Hill, R. Vigor, D. B. Jessop, D. S. Watson, J. O. W. Kilgariff, B. F. (Teller) Withers, R. G. Knowles, S. C. Aulich, T. Jones, G. N. Black, J. R. McIntosh, G. D. (Teller)Bolkus, N. McKiernan, J. P. Childs, B. K. Maguire, G. R. Coleman, R. N. Morris, J. Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M. Cooney, B. Richardson, G. F. Devlin, R. Robertson, E. A. Elstob, R. C. Ryan, S. M. Evans, Gareth Sibraa, K. W. Foreman, D. J. Tate, M. C. Gietzelt, A. T. Walsh, P. A. Giles, P. J. Zakharov, A. O. Walters, M. S. Coates, J. Townley, M. Button, J. N. Chaney, F. M. Grimes, D. J. Reid, M. E. Crowley, R. A. (Senator Douglas McClelland did not vote, to compensate for the vacancy caused by the death of Senator Missen.) Question so resolved in the affirmative. Clause, as amended, agreed to. Clauses 36 and 37-by leave-taken together, and agreed to. Clause 38 (Warranties in relation to the supply of services). Senator DURACK(Western Australia)(8.44) —On behalf of the Opposition I move: Page 35, proposed sub-section 74 (3), after paragraph (b), add the following word and paragaph: ``or (c) a contract for or in relation to the provision of services of a professional nature.''. The Opposition is very concerned about the effect that this amendment will have on section 74 of the principal Act. Section 74 deals with the contract for the supply by a corporation of services to a consumer. Section 74 (3) defines `services' in a specific way. It states: In this section, `services' means services by way of- (a) the construction, maintenance, repair, treatment, processing, cleaning or alteration of goods or of fixtures on land; (b) the alteration of the physical state of land; or (c) the transportation of goods otherwise than for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported. Therefore, section 74 (3) applies to specific classes of services. The clause we are now considering seeks to change that definition to a general definition of services by substituting the following sub-section: (3) A reference in this section to services does not include a reference to services . . . under- (a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession . . . carried on . . . by the person for whom the goods are transported . . . ; or (b) a contract of insurance.'. This amendment would have the effect of changing the ambit of section 74 very considerably from one which has application only to the specific services I have quoted to one which has general application to services, except for those very narrow exclusions that are contained in this amending clause. In particular, the wider definition of services will apply to all services provided by professions. The change in the definition of services in the general ambit of section 74 has created very grave and widespread concern among a large number of professional bodies. Indeed, large numbers of professional organisations have no doubt been in touch with all senators and have expressed those concerns. The Australian Council of Professions has supported those concerns. It has asked senators to consider the impact that these changes will have and has invited us to make changes to the Government's legislation. Clause 38 is causing great concern among professional people because it seeks to omit section 74 (3) and substitute a new sub-section. Section 74 (2), which is not proposed to be amended by clause 38, states: Where a corporation supplies services to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation any particular purpose for which the services are required or the result that he desires the services to achieve-- for the benefit of Senator Haines, I emphasise the words `the result that he desires the services to achieve' made known by the consumer to the person supplying him- there is an implied warranty that the services supplied under the contract for the supply of the services and any materials supplied in connexion with those services will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the corporation's skill or judgment. That exception would be a very narrow one if it applies where the consumer expressly, or by implication, makes known a particular purpose for which the services are required. The question of an implied warranty arises. It is only in very exceptional circumstances that the supplier of the services would be able to avoid the appli- cation of that section. As the Law Council of Australia has pointed out, the onus of proof in establishing that would fall on the supplier of the service. Admittedly, this has got to be a supply of services by a corporation, but, as we know, a large number of professional bodies are now supplying services under the corporate veil. That is particularly the case with engineers, and it is probably so with architects. But a number of other professional bodies are moving and will tend to move in the direction of operating as corporate bodies. The implied warranty is an old sale of goods type warranty where a purchaser makes known the purpose for which he wants particular goods. If he is then supplied with them after having stated that he wanted them for those particular purposes, there is, under old sale of goods law, an implied warranty that the goods will be fit for the purpose for which they were sought and supplied. But professional services are really not in that category. For a start, the sorts of results that can occur if goods do not fit the particular purpose are likely to be largely related to the value of the goods rather than damages on a much wider scale. Therefore, the damage has some relation to the actual payment to the supplier. But in the case of professional services, the damages that could result from a failure to meet the purpose for which the consumer stated that he wanted them could well be out of all proportion to the fee that is being paid. If one engaged an architect to design a particular building and stated what the purpose was although the fee might be a reasonably modest one, the building might be large, and a failure to meet the purpose for which it was required by the consumer is really quite unrelated to the payment of the fee. That is one major problem with the Government's proposed amendment. Another problem is the fact that it is very difficult to see how it would apply to many types of professional services. What is not understood is that, in effect, what the amendment does in applying this existing provision about an implied warranty that the services will meet the purpose for which the consumer wants them, really is not applicable at all to that situation. Senator Haines said on another occasion that all sorts of fanciful situations have arisen. Let us take the case of a patient going along to a doctor with a particular malady. Clearly, the services are designed to cure it. A patient, if not expressly, by implication, would make known that that was his or her object in seeking the medical services, and yet there is then an implied warranty that the services supplied will be reasonably fit for that purpose or of such a nature and quality that might reasonably be expected to achieve that result. This seems to be taking the matter much further than the present common law obligation of professional services. At common law, when a person goes to a professional person, there is the implied obligation on the professional to take due care and exercise reasonable skill having regard to his professional status, knowledge and training. If there is a person of a particularly high standing in a profession who holds himself out to be a specialist, the standard of skill, competence and diligence will be interpreted as being commensurate with that particular speciality that he has as a professional. So a high standard of skill and care is required of professional people. It is understandable and has operated very successfully for a very long time. Insurance cover is being obtained more and more these days by professionals simply to cover themselves, without necessarily any legal obligation to do so, although that is also being considered. However, to import into that relationship this entirely different concept, taken from the old sale of goods concepts, and to impose that new and vastly extended duty on professionals is, we believe, quite unreasonable and unfair and will place them in very great difficulty in getting adequate insurance cover for their new liability. It is not true that this is simply importing the common law liability. Some honourable senators seem to be under that view. This was expressed in this place by one of the Labor senators, Senator Cooney, earlier in the debate on this legislation. It is going very much closer to a guarantee and to making the professional an insurer of success. Despite the fact that on another occasion in this debate Senator Haines indicated that there had been a great deal of exaggeration on the part of professionals about these things, nevertheless I do ask the Australian Democrats particularly to reconsider what they have said, because a very greatly extended obligation has been placed on professional people by this amendment. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.00) —I believe it is appropriate at this stage to make a formal and considered statement on behalf of the Attorney-General (Mr Lionel Bowen)-perhaps I should say even more formal and considered than usual-to explain the intention of the Government's amendment to section 74, both to reassure those various professional groups that have expressed concern about the possible effect of the amendment and also to provide guidance on the intention of the amendment to the courts should it be necessary for them to refer to the parliamentary debates on this Trade Practices Revision Bill 1986 in interpreting the amendment. The concerns of the professional groups centre on section 74 (2), which implies a warranty in contracts for the supply of services by a cor- poration or consumer that the services will be reasonably fit to achieve a purpose or result that the consumer expressly or by implication has made known he or she desires the services to achieve. It should be stressed right at the outset that section 74 (2) does not imply any warranty where it is unreasonable for the consumer to rely on the corporation's skill or judgment. Senator Sheil —Who decides? Senator GARETH EVANS —The courts decide. Since 1974 section 74 (2) has applied to services which might broadly be described as non-professional services-for example, those provided by trades people such as carpenters, electricians and plumbers, and other persons such as cleaners, labourers and the like. The amendment would extend the application of section 74 (2) to virtually all services, including professional services, the rationale being that this basic warranty should apply to all situations except where they are compelling reasons to the contrary. The professional groups contend that this amendment will have the effect that all professional persons who operate as corporations will be subject to an implied warranty that the services they provide will be fit for any purpose the consumer makes known he or she desires that service to achieve. For example, it has been suggested that surgeons may be under an implied warranty that an operation will cure a patient, or a lawyer that he or she will win a particular case for a client. Senator Haines —They have been given as examples. Senator GARETH EVANS —Of course, and that is why it is necessary to answer them, extravagant as they may appear at first blush. The first point that should be made is that section 74 (2) is based on the warranty of fitness for purpose that has long been implied by the common law in contracts involving the sale of goods. This warranty is also implied by the common law in contracts for the provision of work and materials, including those provided by professionals. This was explained by Lord Justice Scott in Samuels v. Davis (1943) 1 KB 526, a case involving the construction of a denture by a dental surgeon, at page 527: In my view it is a matter of legal indifference whether the contract was one for the sale of goods or one of service to do work and supply materials. In either case, the contract must necessarily by reason of the relationship between the parties, and the purpose for which the contract was entered into, import a term that, given reasonable cooperation by the patient, the dentist would achieve reasonable success in his work, or in other words, that he would produce a denture which could be used by the patient for the purpose of eating and talking in the ordinary way. The second point I should make is that section 74 (2) is not expressed in absolute terms, and whether or not a warranty is implied by section 74 (2) is a question of fact to be determined by the courts after examining all that was said or done in relation to the supply of the services. The application of common sense in determining what was the particular purpose made known or the result the consumer desires the service to achieve is necessary in relation to section 74 (2). Section 74 (2), as I have said, only requires the services to be reasonably fit for that purpose or of such a nature and quality that they might reasonably be expected to achieve that result. As the Australian Medical Association states in its Press release of 9 April this year, `Human beings and other living things do not behave in a predictable manner', and therefore it is never certain that services provided in this context will achieve a particular result. For example, a doctor's treatment of a patient may or may not achieve the result the patient desires-that he or she be cured-because it is never totally certain that the human body will react to treatment in a particular way. Consumers do not, for example, go to doctors expecting to be cured of the common cold or influenza but rather to have the affects ameliorated. It is then necessary to look at whether the service provided is of such a nature and quality that it might reasonably be expected to achieve that result. When looking at the nature of section 74 (2), it is important to recognise that there is a continuum of services; that is, there are services where a result can be precisely defined and is absolutely achievable and services where a result may not be easily defined or necessarily achievable or a matter of degree is involved. Further a lawyer is never totally certain of succeeding in a particular action for a client-some more so than others-because of the necessary vicissitudes involved in a trial or hearing. By contrast, it could be argued that it is reasonable for a client to expect a solicitor to draft a valid will or provide a legacy to a particular person. The arguments being levelled against section 74 (2) also fail to recognise that there is a qualification to the implication of a warranty where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the corporation's skill or judgment. There will be circumstances in relation to the supply of professional services where this qualification will clearly apply. Leaving aside the Government's view that this amendment will not have the effects contended by the professional groups, the Government could not, let me finally say, support the Opposition amendment because it goes far beyond alleviating the professional groups' perceived problems. The Opposition amendment would exempt professional services from the whole of section 74, not just section 74 (2), which is the one that raises this issue about fitness for purpose as distinct from the more familiar concept of due care and skill. No group has suggested that there should be an exemption from section 74 (1), which, as I have just said, implies a warranty that services will be rendered with due care and skill. The Government has been given no reason why any professional group should be excluded from this sub-section and, in fact, no professional group has expressed concern about the extension of this sub-section to professional services. That does not seem to have inhibited the Opposition, however. Its amendment to the Government's proposal here sweepingly strikes out any question of professional commitment to the obligations in 74 (1). Senator Durack —They will not wipe them out because they exist in common law. It is a ridiculous idea. Senator GARETH EVANS —There is no reason to resist the application in codified statutory form, I would have thought, if one accepts the concept that the obligation in 74 (1) is as precisely conterminous with that which exists at common law. Section 74 (2) implies a basic warranty that, where a consumer when purchasing services makes known a particular purpose he or she wishes the services to achieve and it is reasonable for the consumer to rely on the supplier's skill or judgment to achieve that result, the services will be reasonably fit for the purpose-no more and no less than that. It is noted, as I have already said, that trades people and others have been subject to this consumer warranty since 1974. The Government considers that, like trades people, professionals should also be subject to this basic warranty and will have little difficulty complying with the standard thus set. Senator MICHAEL BAUME(New South Wales)(9.08) —If I thought the Government's amendment was bunk before, I am now absolutely convinced that it is utter bunk and dangerous bunk. In this advice we have just heard, which is supposed to be advice under the Acts Interpretation Act to a court, we heard no mention-- Senator Durack —They will laugh their heads off when they read that. Senator MICHAEL BAUME —Exactly. There was no mention of the fact that the basic problem that emerges here is that there is a reverse of the onus of proof. This is the key element. Senator Gareth Evans —You are always hunting that particular snark. Senator MICHAEL BAUME —For the Minister to get up here and have that lengthy discussion of the issue without even mentioning at any stage that there is reverse onus involved strikes me as incredible. For the Minister's benefit, because obviously he has not read the material that has come from people like the Law Council of Australia-after all, it is up front in its proposition-I quote: If this amendment is enacted, the onus of proving that the client did not, expressly or by implication, make known to the professional the results which he hoped to achieve, or did not rely on the professional's advice, or that it was unreasonable so to rely, rests on the professional. The Law Council considers this reversal of the onus of proof to be improper . . . Senator Gareth Evans —That means that every exception to any provision in the statute book counts as a reverse onus of proof. That is just a nonsensical construction of an ordinary exception to the operation of a provision. Senator MICHAEL BAUME —That is a quaint response in the sense that here we have a statement from the Law Council of Australia, which I would have thought was a body of reasonable status. Its statement did not originally merit a response from the Minister except by way of interjection to me just now. Senator Gareth Evans —One lawyer loses every case that is ever argued before the courts. Has that not occurred to you? Senator MICHAEL BAUME —I simply make the point that when a very serious matter is raised by the Law Council it should merit some response from the Minister. I ask the Minister: In the circumstances of his fairly cavalier statement could we have incorporated in Hansard the letter to me from the Law Council of Australia, which, I presume, is similar to that which he has received, signed by Mr Philip A. Hawke, the Secretary-General, and which presumably has the imprimatur of the Law Council? I seek leave to have this letter incorporated in Hansard. Leave granted. The letter read as follows- 29 April 1986 Senator M. Baume The Senate Parliament House CANBERRA Dear Senator, On April 22 the President of the Australian Council of Professions wrote to you in respect of the proposed amendment to Section 74 of the Trade Practices Act 1974 contained in Clause 38 of the Trade Practices Revision Bill 1986 which is to be debated in the Senate very shortly. A copy of Section 74 and Clause 38 are Annexures A and B respectively of this letter. I am writing this letter to you to set out again the concern of the Law Council of Australia in respect of this proposed amendment. The matter was referred to in our earlier submission of November 18, 1985, a copy of which was forwarded to you on that date. However, the Government appears determined to proceed with the amendment. The further amendment proposed by the Australian Democrats in March 1986 (which would have the effect of exempting architects and engineers from the provisions) does not, in our view, go far enough. It seems to the Law Council essential that the legal effects of the amendment be placed squarely before you. May I make clear that although lawyers will of course be affected by the legislation, I am not writing to you primarily in the interests of lawyers. The Law Council is concerned on behalf of all persons who practice a profession (``professionals'') that their relationship with their clients will be fundamentally altered to the disadvantage of the client and the community at large. The existing common law duty applicable to the provision of professional services is the duty to use due care and skill. The duty arises wherever a person carries on a business or profession which involves the provision of services, including the giving of advice, of a kind which calls for special skill and competence. The person who provides such services impliedly represents to the recipient that he possesses that degree of skill and competence and is willing to exercise that degree of diligence which is generally possessed and exercised by persons who carry on the business or profession of providing services of the kind sought. This is the formulation of the duty contained in authorities such as Mutual Life and Citizens' Assurance Co. Ltd v Evatt (1971) AC 793; (1971) 1 All ER 150. The scope of the duty is therefore defined by the objective standard of skill, competence and diligence which would be exercised by a reasonable person of an equivalent degree of knowledge and expertise. Thus a professional who represents himself as being a specialist in a particular field will be judged by higher standards than an ordinary member of that profession. The specialist will be required to attain the ordinary level of skill, competence and diligence of those who specialise in the same field. The existing common law will not usually imply a warranty that the professional will achieve the result desired by his client. However, in appropriate circumstances, such a warranty may be implied into a contract for the provision of professional services (see, for example, Greaves & Co. (Contractors) Ltd v Baynham Meikle and Partners [1975] 3 All ER 99). The Law Council considers the common law duty of care and skill presently imposed on a profession is the appropriate one. However, the extension to contracts for the supply of professional services of the statutory warranties contained in Section 74 would place an unreasonable burden on the professional in that the warranties would apply to every contract regardless of the circumstances of the case. If this amendment is enacted, the onus of proving that the client did not, expressly or by implication, make known to the professional the results which he hoped to achieve, or did not rely on the professional's advice, or that it was unreasonable so to rely, rests on the professional. The Law Council considers this reversal of the onus of proof to be improper, particularly as the Government has failed to explain the mischief at which this amendment is directed, despite several requests from the Law Council. Imposing additional duties on a professional and reversing the onus of proof is also likely to encourage vexatious litigation. The significant increase in the potential liability of the professional to his client will inevitably lead to higher costs to the professional in respect of professional indemnity insurance. The costs associated with defending vexatious litigation and increased professional indemnity insurance will in turn be passed on to the consumers of professional services. Some of these concerns were raised during the Senate debate on the second reading of the Bill on 14 April 1986. In addressing those concerns, Senator Haines referred to ``the most extraordinary concerns'' raised in various submissions to the Government about the likely effect of the amendment to Section 74. Senator Haines then stated: ``I have not been aware in the past that that, in fact, pertains. Doctors do not guarantee success of a venture or undertaking. Lawyers do not guarantee to get a person off whatever particular charge he is on, they simply undertake to do the best that due care and skill, reasonable care and skill will produce. After all, the question is not whether a patient is successfully treated or whether a person successfully got off his case, but whether the person providing the service has provided a service which is fit for the purpose for which it was undertaken.'' (at page 1703, Senate Hansard dated 14 April 1986). The Law Council agrees that Senator Haines' statement reflects the existing position at common law. However, the proposed amendment on its face, goes further than this and would imply into contracts for professional services the type of warranties referred to in the second sentence of Senator Haines' statement (see Greaves & Co. (Contractors) Ltd v Baynham Meikle and Partners supra). The Law Council notes that on 11 February 1986, during the debate on an identical provision in the Trade Practices Amendment Bill 1985, Senator Cooney stated that the amendment merely restated the common law position and should be interpreted in terms of the overall thrust of the Trade Practices Act 1974, which is to create a proper atmosphere of competition and to give protection for consumers. The Law Council can only assume that Senator Cooney is suggesting that the courts will apply Section 15ab of the Acts Interpretation Act 1901 when interpreting the scope of the amended Section 74. A copy of Section 15ab is Annexure C to this letter. If this is the Senators' meaning, the Law Council deplores the suggestion that Parliament should abrogate its responsibility to make clear and effective laws. In any event, a resort to Section 15ab to clarify the meaning of the proposed amendments places the courts in the role of legislator. The application of Section 15ab would give little comfort to the professional, as the Government has failed to discuss the purpose of the proposed amendment or to specify the wrong which it hopes to right. There is also some doubt as to whether Section 15ab could be applied to a provision which, like the proposed amendment to Section 74, is neither ambiguous nor obscure on its face. The professional would have to rely on sub-section 15ab (1) (b) (ii), which would place on the professional the onus of convincing the court that the provision was manifestly absurd or unreasonable. Quite apart from the unnecessary litigation required to establish the scope of the proposed amendments, the application of Section 15ab is at the discretion of the court and may require the court to make subjective judgments as to the Parliament's intention. In support of this concern, the Law Council draws the Senate's attention to the remarks made by Mr Justice Franki in the Trade Practices Commission v Thomas National Transport (1985) 58 ALR 423, in relation to the application of Section 15ab: ``I have done the best I can with the Section, which I find extremely difficult to apply, especially in a case like this where at least some counsel are not easily deterred by the time required to argue the point fully.'' The Law Council recommends that the Government does not proceed with the proposed amendment to Section 74. If this recommendation does not have your support, then the Law Council strongly urges you to have the amendment referred to the Senate Standing Committee on Constitutional and Legal Affairs to enable the concerns raised in this letter to be further addressed by the Parliament, and the Government to make a clear statement of the mischief to which the amendment is directed. Yours sincerely, Philip A. Hawke, Secretary-General Senator MICHAEL BAUME —I thank the Committee. A couple of other points that emerged from this letter should be stressed. It states: The Law Council considers this reversal of the onus of proof to be improper, particularly as the Government has failed to explain the mischief at which this amendment is directed, despite several requests from the Law Council. Imposing additional duties on a professional and reversing the onus of proof is also likely to encourage vexatious litigation. The significant increase in the potential liability of the professional to his client will inevitably lead to higher costs to the professional in respect of professional indemnity insurance. The costs associated with defending vexatious litigation and increased professional indemnity insurances will in turn be passed on to the consumers of professional services. I made the point to Senator Haines before that, while it is all very well for her to say that suppliers of services or goods may occasionally be naughty, wicked and need to have their hands smacked, consumers are also naughty, wicked and need their hands smacked every now and again. In this kind of legislation we have to seek equality of rights between suppliers of goods or services and consumers of goods or services. The one-eyed approach that we continually get from the Government and the Australian Democrats strikes me as being unproductive, unhelpful and, as the Law Council points out, costly. I also draw the Committee's attention to the Law Council's response to Senator Haines's comments on 14 April when some of these concerns were raised here by me. In addressing them, Senator Haines referred to `the most extraordinary concern' raised in various submissions to the Government about the likely effect of the amendment to section 74. Senator Haines then stated: I have not been aware in the past that that, in fact, pertains. Doctors do not guarantee success of venture or undertaking. Lawyers do not guarantee to get a person off whatever particular charge he is on, they simply undertake to do the best that due care and skill, reasonable care and skill will produce. After all, the question is not whether a patient is successfully treated or whether a person successfully got off his case but whether the person providing the service has provided a service which is fit for the purpose for which it was undertaken. The Law Council responds that it agrees that the statement by Senator Haines reflects the existing position at common law. However, the proposed amendment, on its face, goes further and would imply into contracts for professional services the type of warranties referred to in the second sentence of Senator Haines's statement. This all seems fairly important, relevant and significant, particularly in respect of the response of the Minister for Resources and Energy (Senator Gareth Evans) to Senator Durack about why we should get rid of section 74 (1). The answer is quite simple; the common law clearly states the practical, sound and proper position that Senator Haines appears to have been seeking in that section which I quoted. I strongly support Senator Durack's amendment, which would exclude professionals from this section. I find very little merit in what the Minister has said so far in alleged repudiation of the submissions made by bodies such as the Law Council. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.15) —Let me respond immediately to perhaps the fiercest part of Senator Michael Baume's contribution-that in which he addressed the matter of an alleged reversal of the onus of proof. The Law Council of Australia is not totally unsophisticated in conducting its political campaigns. One of the things that it has learned in recent times is that certain honourable senators salivate, like Pavlov's dogs on hearing their bells ringing, whenever they hear the expression `reverse onus of proof'. Thus, for every interesting, controversial or lively piece of statute law before us recently we have had trotted out the kinds of arguments that once again had an airing from Senator Baume tonight. Senator Michael Baume —Eternal verities. Senator GARETH EVANS —They are so far from being eternal verities that the honourable senator should blush to utter that expression. What is being talked about as constituting some kind of unprincipled reverse onus of proof is utterly and palpably nonsensical. All that is involved is a continuation in operation of an existing sub-section, sub-section 74 (2), which has been in the statutes since 1974. It has not been in the slightest bit controversial. It uses the kind of language which appears in lots of other places in the Trade Practices Act-an example at random is section 71 (2)-and in hundreds of other provisions in the statute book. Those provisions state a certain effect and then indicate exceptions. The way that this operates, in the context of section 74 (2), is that the terms of an implied warranty are set out then follows the language `except where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the corporation's skill or judgment'. In other words, this creates a defence, a line of counter-argument for a defendant subjected to litigation on the main substance of the clause. The statute book is absolutely littered with sections which are expressed as having exceptions to them or which, in effect, create defences for the other side. It is only in the most technical sense that one can say that any kind of onus of proof issue is involved. There is an evidential onus of proof, I guess, in that the defendant has to raise the issue and adduce some grounds for giving credence to having so raised it so that the application of that exception can be addressed by the courts. That is an utterly familiar, ordinary, uncontroversial and inoffensive way of writing a statutory provision. The main thrust of the arguments about onus of proof in recent times has been about the necessity to convert persuasive onuses of proof set out in an unhappy way in lots of legislation into evidentiary onuses where questions of principle or other considerations make that desirable. That is what the argument is all about. When one is able, and we have often had these sorts of debates in this chamber, to take a reversed persuasive burden and turn that into simply a reversed evidentiary burden, everybody cheers and says: `Are we not like little Jack Horner pulling out his thumb with a plum on it, saying we are good boys; we have done the right thing in terms of the proper operation of the legal system?'. We do not have to put our thumbs in a particular pie to fix this section because it is cast in like terms and has been since 1974. Nobody has turned a hair about that. Senator Haines —Including the Scrutiny of Bills Committee, which does salivate at the mention of these Bills. Senator GARETH EVANS —I am very happy to incorporate that contribution from Senator Haines because it makes the point very neatly and succinctly. This is simply a campaigning point, a debating point, which, inevitably, has appealed to Senator Baume, who has leapt to his feet with his tail wagging and seized upon it as another point to be advanced in the campaign against the Government's iniquity. This point is absolutely nothing of the kind. There is no reverse onus of proof involved. I think even the Law Council should feel just a little sheepish at having had the gall to advance an argument in those terms and to seduce poor Senator Michael Baume into making the sorts of points that he has felt himself obliged to make publicly tonight, points which have no foundation whatsoever and do not really stand up to any kind of scrutiny at all. Senator SHEIL(Queensland)(9.21) —I have listened very carefully to the definitive explanation by the Minister for Resources and Energy (Senator Gareth Evans) of the spirit and the intent of proposed new section 74 of the Trade Practices Act and it has filled me with a mounting sense of apprehension. When I interjected while he was speaking before and asked him who would decide on all these matters, he said that the courts would. I know there is an argument current in the courts today that they do not consider the spirit and the intent of the Act or use any lines of guidance; they take the words of the Act specifically and operate from there. The Minister, in his explanation, tried to make out that tradesmen and professionals were the same and should be treated in the same way. I beg to differ, because tradesmen are qualified to practise their trades, but the important quality about their work is that it does have to be inspected by somebody. Professionals, on the other hand, are qualified and licensed to practise and take complete responsibility for their own actions. I think it is a characteristic of the socialist objective, if I might call it that, to downgrade all the people of professional character to try to make them fit into some sort of a world where everybody is supposed to be accountable for everything. I have practised as a professional myself and have taken complete responsibility for my actions. I know just what that entails. I am not saying that tradesmen do not do the same job but their work, by its very nature, requires inspection no matter what they do. The amendment proposed in this legislation requires a statutory warranty, in effect. People will have to guarantee the outcome of their work. I just cannot accept that that should be translated into law. Let us take, for example, professionals in the field of sport such as the McEnroes of this world or the Sydney Swans. They are all paid professionals who take responsibility for their work, but they cannot guarantee that they will win. One can even hire professionals. I can hire or buy boxers or people involved in any sport, but those people cannot guarantee that they would win a world championship for me. I think that shows how ridiculous this kind of legislative exercise is. Over and above that, this proposal downgrades the trust and the goodwill that exist between people. In my profession of medicine it would downgrade research, and it would do it through fear. I know that if a hospital had a routine for treating ulcers of the gastrointestinal tract, for example, and any doctor wanted to step outside that routine of treatment and something went wrong-I should say only if something went wrong because that is what this legislation is talking about-he would be subject to an inquiry by a committee of his peers. Because he had stepped outside the routine, the odds are that they would find him guilty of professional negligence. That would put us all in a straitjacket. No doctor would be game to try to experiment with a new technique on a patient. I have seen it go a step further than that in England, which has a national health scheme. The doctors who rise to the top of the academic world, in order to get further kudos, are able to say: `All right, we will alter the routine of treatment for this disease and we will try something else'. They have tried something else which has not been successful. A whole lot of patients have suffered because of doctors trying to prove that they can step outside a treatment routine and find a better method. The more appropriate approach is to allow research to be done by a doctor who is working in a certain field and who has a patient who he realises will accept the odds involved in trying a new treatment and will have a go at it. It that treatment is successful they can both be happy, and if it is unsuccessful he will not be sued, as would happen under this Bill. The proposed amendment would create a climate of litigation brought about by people who felt they had been offered something or who had a lawyer. I notice that the Minister himself admitted there were different categories of lawyers. In an aside during his definitive explanation on the Bill he said that some lawyers were better than others. I think he was talking particularly about trial lawyers at the time. So it is in all professional spheres; some people are better than others, and that should be recognised. We should not all be put into a category in which we are subject to all sorts of litigation, litigation that is opened up to people because of this type of legislation. This is another piece of legislation which, if it is visited on the people of Australia with the kind compliments of the Australian Democrats, I am going to make sure the people of Australia know was given to us by the Democrats, just as they have given us the Australian Sports Commission and a lot of other ridiculous things. Senator MacGibbon —Assets test. Senator SHEIL —And the assets test. I could go on for quite a while about what they have done to us. I am sure that none of us in the National Party or in the Liberal Party could agree with this kind of amendment to the Trade Practices Act. Indeed, I think this is the sort of legislation that cripples even socialists. It cripples the scintillating stars of the socialists such as the Evanses and the Walshes. They are all reduced by this sort of thinking. Senator MICHAEL BAUME(New South Wales)(9.27) —I am concerned about the appeal to authority that Senator Gareth Evans resorted to. Appealing to the authority of an Act passed by the Labor Government 1974 does not appear to me to be terribly impressive. I would have hoped that there might be some better examples on which the Minister could rely. I simply say that law which is, frankly unnecessary and which the Law Council of Australia claims to be unnecessary, which imposes burdens and risks and which certainly imposes, as Senator Sheil has pointed out, the risk of vexatious litigation, obviously merits close attention. I suggest that it merits amendment along the line that Senator Durack has proposed. I simply draw the attention of the Committee to another paragraph in the letter from the Law Council which has been incorporated in Hansard, which states: The Law Council considers the common law duty of care and skill presently imposed on a profession is the appropriate one. However, the extension to contracts for the supply of professional services of the statutory warranties contained in Section 74 would place an unreasonable burden on the professional in that the warranties would apply to every contract regardless of the circumstances of the case. It seems to me that Senator Gareth Evans, as Minister representing the Attorney-General (Mr Lionel Bowen) has glossed over the fact that the Law Council has taken a strong position against this amendment. Senator Gareth Evans has dismissed the position of the Law Council as simply a negotiating point that is not meaningful and is not in fact genuine. That is really the burden of what Senator Gareth Evans was saying. He said that the Law Council is not in fact fair dinkum and that it has simply put up an Aunt Sally to see whether I would salivate. I can assure Senator Evans that my bite is worse than my bark. I suggest to him that it does him and his Government no merit to dismiss serious objections by a body such as the Law Council in that fairly flippant way, by saying that it is simply an ambit claim, an all-embracing attempt to con the Opposition to take up arms for it. In fact it fits in with an eternal verity that the Opposition has constantly maintained; that is, that unless there are overwhelming reasons for reversing even the evidential onus, one should seek not to do so. That has been a position that the Standing Committee for the Scrutiny of Bills has consistently maintained, and it is a proper one. The key point here, as the Law Council has pointed out, is that the Government has failed to explain the mischief at which this amendment is directed, despite several requests from the Law Council. We have not heard today what mischief this is being directed at fixing. I wonder whether there is any such mischief. The Minister's failure to include it in his detailed statement for the guidance of judges who will have the misfortune to look after this legislation is clearly significant. In the absence of any clear statement of such mischief which has such an urgent need to be corrected, I suggest to the Senate that there is great merit in supporting Senator Durack's amendment. All we hear about this is in the explanatory memorandum, which says `this definition is unduly restrictive'-because of the fact that it related only to certain groups included in a 1977 amendment to the Trade Practices Act 1974. I find little merit in the whole thing as it is, before amendment, because I much prefer to rely on the common law duty of care. In the absence of anything meaningful in the explanatory memorandum and anything meaningful at all in the comments by the Minister, I think the clear merit lies in supporting Senator Durack's amendment. Senator JESSOP(South Australia)(9.33) —I also express my apprehension about the proposal we are discussing in Committee. I have listened with interest to Senator Michael Baume and his reference to the Law Council of Australia, which represents about 20,000 lawyers and therefore, in my view, should not be treated in a flippant way at all, as has the Minister representing the Attorney-General, Senator Gareth Evans. I draw attention also to the comments that have been made by the Australian Council of Professions, which incorporates approximately 16 professional associations, including the Law Council of Australia. A letter I received from the Australian Council of Professions on 24 April suggests, among other things, that it remains concerned at proposals to amend section 74 of the Trade Practices Act as proposed by the Trade Practices Revision Bill currently before the Senate. The letter contains other matters of interest and I seek leave, Madam Temporary Chairman, to incorporate in Hansard the letter from the Australian Council of Professions. Leave granted. The letter read as follows- THE AUSTRALIAN COUNCIL OF PROFESSIONS GPO Box 2233 Canberra, ACT 2601 Tel. 062-488787 Secretary Major General R. A. Hay (RL) CB MBE 22 April 1986 Australian Medical Association The Royal Australian Institute of Architects The Institution of Engineers, Australia Australian Dental Association The Australian Veterinary Association Ltd The Royal Australian Chemical Institute Law Council of Australia Australian Society of Accountants The Institute of Chartered Accountants in Australia The Institution of Surveyors, Australia Pharmaceutical Society of Australia The Institute of Actuaries of Australia The New South Wales Council of Professions South Australian Council of Professions Inc. The Queensland Council of Professions The Victorian Council of Professions Senator D. S. Jessop The Senate Parliament House Canberra Dear Senator, The Australian Council of Professions at its Annual General Meeting held in Canberra yesterday unanimously adopted the following statement: The Australian Council of Professions remains concerned at proposals to amend Section 74 of the Trade Practices Act as proposed by the Trade Practices Revision Bill currently before the Senate. The amendment, as the Council understand it, is designed to impose on the providers of professional services in certain circumstances a statutory warranty that would have a more stringent effect on professionals than does the existing law. At present a professional must use due care and skill and, if negligent, can be sued for damages. The proposed amendment will impose on professionals such as accountants, lawyers, doctors, dentists, pharmacists and others a statutory warranty that the services they provide will achieve whatever result the client expected. This clearly would impose an impossible demand on the provider of professional services and one which is completely unnecessary. It is understood that the Government will agree to an amendment to Section 74 by which engineers and architects will be exempted from the provisions of the proposed amendment. There seems to be no other reason why other professions should remain subject to it. The Government to date has not been able to provide any evidence of the wrong which the proposed amendment is intended to right, nor of the alleged inadequacies of the protection already afforded the clients of professionals by the existing law. Accordingly, the Australian Council of Professions can only assume that there is no need for the amendment. It is improper to proceed with this legislation unless the wrong which is implied is first specified. The Council, further, is not clear as to the precise scope of the increased liability which the proposed amendment would impose on professionals and believes that scope should be clearly spelled out before debate on the matter proceeds. The Council wishes to draw to your attention that the imposition of the extra burden of warranty now proposed will lead inevitably to additional costs, already rising significantly-for example in increased professional indemnity insurance premiums-which will be passed on to clients. There is a strong trend towards incorporation of many professional practices and this legislation would therefore affect increasing numbers of them. It would also affect all professionals in the Australian Capital Territory and in any State which chose to pass complementary legislation. It also creates uncertainties as to its cross-border effects between States and Territories or between States themselves. There is a duty upon the Government to clarify these issues before progressing with the legislation. The Council proposes that it should be made clear in the legislation that the Section does not apply to services provided by a person in the course of his profession. I hope that you will accept the recommendations of this statement in your deliberations on the amendments to Section 74 of the Trade Practices Act. Yours sincerely, R. N. JOHNSON President Senator JESSOP —I thank the Senate. The Australian Medical Association also has been very concerned about this matter and has issued a Press statement with respect to it. The Press statement is headed `Australian Medical Association-A Cure Cannot Be Guaranteed'. I think that statement also is worthy of incorporation in Hansard and I seek leave, Madam Temporary Chairman, to incorporate it. Leave granted. The statement read as follows- Patron: Her Majesty The Queen AUSTRALIAN MEDICAL ASSOCIATION Incorporated in A.C.T. Secretary General: GEORGE D. REPIN M.B., B.S., D.P.H., D.I.H., F.R.A.C.M.A., F.A.I.M. Telephone: (02) 660-6466 International: + 612 660-6466 Telex: 24814 77-79 Arundel Street Glebe, N.S.W., 2037 Postal Address: Box 20, Glebe, N.S.W., 2037 Cables and Telegrams: ``AUSTMEDICAL'' Sydney Press Statement AUSTRALIAN MEDICAL ASSOCIATION-A CURE CANNOT BE GUARANTEED Doctors may put up signs that no cures are guaranteed and lawyers that they cannot promise an acquittal if an amendment to the Trade Practices Act is passed in the Senate, Dr Trevor Pickering, President of the Australian Medical Association said today. The amendment (to section 74 of the Act) is being debated today. It would extend to all professional people whose practices operate as registered companies an `implied warranty' that the services they provide will be fit for their purpose. Currently this provision applies only to non-professional services. Dr Pickering said: ``When patients visit a doctor the implication is that they are sick and want to be cured. If the doctor treated the patient but failed to achieve a cure the patient could sue under the change proposed to the Act on the basis that the implied contract had been broken. ``Pharmacists, dentists, veterinary surgeons and lawyers would face a similar risk. ``This would place professional people in an impossible position. It is unjust because human beings and other living things do not behave in a predictable manner. ``What happens to them is subject to the whim of fate or the will of God and no particular outcome can be guaranteed by any professional person. ``If a patient or a client succeeded in winning damages in a case brought under the proposed change to the law, professional indemnity insurance premiums would rise alarmingly and this would inevitably result in increased fees for professional services. ``Currently a patient can sue if their doctor fails to exercise the skill and care that can be expected of a reasonable doctor or if their doctor is negligent. This provides perfectly adequate protection to the public and the amendment is unnecessary. ``The Trade Practices Act only applies to corporations (and individuals in the A.C.T.) ``This means that patients and clients of professional people whose practices have not been formed into companies, and that is probably the majority, would receive no benefit from the amendment.'' Dr Pickering said. ``The amendment would create a double standard, benefiting some but not others.'' It is understood that Liberal Senators will vote to exclude professional people from the implied warranty provision. It is believed the Australian Democrats are prepared to exclude engineers and architects, on the basis that their designs and advice are put into effect by others, but not the remaining professions. The Australian Medical Association, other professional bodies and the Australian Council of Professions have been actively lobbying against the amendment for some days. Issued by: Dr George Repin Secretary General Australian Medical Association 77-79 Arundel Street Glebe, N.S.W. 2037 Media Contact: Nick Lloyd 02-660 6466 02-810 1262 (home) April 9, 1986 Senator JESSOP —I thank the Senate. There is no doubt that an alteration to this part of the Trade Practices Act will fundamentally change the relationship between those practising a profession and their clients, to the disadvantage of the clients and the community at large. At present a professional must use due care and skill and, if negligent, can be sued for damages. The proposed amendment will impose on professionals a statutory warranty that the services they provide will achieve whatever result the client expected. That is an unreasonable imposition and impossible demand to place upon professionals. Why is this Government introducing such an amendment? The Government has not stated the aim behind it. I believe that this amendment could make extraordinary changes to professional practices in Australia. I believe that I can offer a reason, and if the Government finds it unacceptable, Senator Gareth Evans might give us the Government's reason why it is proposing to change this part of the Act. The Government does not have a very enviaable record with professions, particularly the medical profession, and I suggest that this amendment will affect doctors more than most professionals. Not content with bringing in this amendment, the Minister for Health, Dr Blewett, is about to impose another organisation, the community participation groups, as non-elected, self-appointed health consumerists, which are about to share the Minister's responsibilities, including the control of his budget, which amounts to approximately $7.6 billion. Those groups are also to act like the Human Rights and Equal Opportunity Commission-manufacturing grievances in this case against doctors. The groups from which these health police are to be drawn include such prominent leftist dominated groups as the Australian Consumers Association, the Australian Federation of Consumer Organisations and, believe it or not, the Australian Conservation Foundation, which undoubtedly has the great support of the Australian Democrats. Heaven knows why it is included in these groups at all. The Australian Consumers Association is supposed to represent 200,000 consumers. A little while ago there were only 157 members of that Association at an annual general meeting, of whom 59 cast votes, 15 of which were proxies. A block of 20 votes was needed to be elected, and 20 councillors were elected. I regard that as being a very incestuous affair at best. When the Senate realises that the ACA is controlled and serviced by Professor Wheelwright, no less, of Sydney University, whose main claim to fame is that he lectures in Marxist economics-I believe that is quite remarkable-the nature of this matter becomes clear. The ACA of course publishes Choice magazine-- Senator Sanders —Oh! A Marxist publication. Senator JESSOP —Communist, I would say, or almost communist. Much of the research is done for this magazine by Wheelwright's transnational corporations research project. Some time ago Wheelwright indicated in a Press interview that as a communist he is no longer interested in the blue collar workers. Senator Michael Baume —But he is getting CEP funding for his operations. Senator JESSOP —Of course he is. According to the Professor, those workers were too conservative, and he declared that the consumer movement was the leading edge of radicalism. On another occasion in Bangkok he stated: What we are saying is that modern capitalism is frightfully undemocratic, whether transnational or local. Let's get it clear, the capitalist system is the cause of the problem. It becomes quite clear why this clause is being amended in this way. Once it is in place and once Dr Blewett's community health groups are established, Professor Wheelwright and others, such as Dr John Braithwaite, a criminologist who is a former director of the equally doubtful consumer organisation, the Australian Federation of Consumer Organisations, will be in a position to vet our doctors and their activities and use this amendment to drive them out of private practice. I believe that is what is really behind this amendment. I certainly oppose it and support wholeheartedly Senator Durack's amendment to this measure. I am quite surprised that the amendment that has been put forward by the Australian Democrats does not go further. I believe the Democrats have some conscience about this matter, but to include only architects and engineers is quite extraordinary. Senator Michael Baume —They only have part of a conscience-it's like being partly pregnant. Senator JESSOP —I believe that is a good analogy. I am surprised and disappointed in the Australian Democrats in this matter. I am not surprised, however, when I look at the people who have been elected to this place to represent the Australian Democrats, but I think Senator Haines is a reasonable person and I would have thought that she would have been intelligent enough to recognise-- Senator Haines —Not a chance. Senator JESSOP —Well, Senator Haines, says she is not intelligent and I take her word for that. I am really disappointed that the Democrats have not gone further and included all professionals in this amendment. Having said that, I repeat that I support Senator Durack in this regard. Senator HAINES(South Australia)(9.45) —What Senator Jessop has just outlined is, of course, a clear indication that the Opposition parties support or oppose something according to the other groups in the community who support or oppose it. In listing that extraordinary group of people whom he sees as supporting this as justification for his opposing it, he has laid his ideology fairly clearly before us. I guess there is no harm in his doing that, but I am not so sure that he has done Senator Durack's argument a great deal of good. The Opposition is resting its case here to a very large extent on the arguments put forward by the Law Council of Australia as if the Council were not only infallible in its judgment, but also as if it represented every single lawyer in Australia, which of course it does not. I would say in its favour that whenever the Law Council has dealt with me it has always made it perfectly clear that its committees do not necessarily, and in fact cannot be expected to, represent the views of all lawyers. As everybody in this chamber probably knows, if one put two lawyers in a room and gave them a single problem they would come up with at least three arguments and take three different positions. To cite the Law Council of Australia as being the only body whose opinion is worth following is nonsense. Even if that were so I would ask Senator Durack why he did not accept the Law Council's amendments to the Judiciary Act Amendment Bill. When that was introduced it did all sorts of things in relation to appeals to the High Court. The simple fact is that in this chamber, as in courts or anywhere else, people who are putting an argument will use the cases and the sources which best suit that argument. That is as true of the Opposition citing the Law Council of Australia as it is of the rest of us citing anybody else, or Senator Jessop quoting with some complaint the fact the Choice magazine and various other consumer organisations support the legislation. Senator Gareth Evans —There is pure objective reason on this side of the chamber. Senator HAINES —There is a first time for everything, I suppose. The interesting thing about the debate on section 74, of all the debate on the amending clauses in this Bill, is that this one has hit new depths of banality at some points and new heights of hysteria, some of which I mentioned during the second reading debate on the Trades Practices Revision Bill of 14 April and others of which have come to my attention since then. For example, there was the extraordinary statement made by a law firm that if section 74 were to apply to professionals there would be an implied term that the services rendered by them would be done with due care and skill, as if there were something outrageous in that proposition. Today I had a letter from a medical professional organisation which said that it had not yet read the legislation but it sensed that it would cause problems. I am surprised that someone on the Opposition benches has not waved that at us as being a very good reason to oppose this clause which amends section 74. As far as various other complaints about the reverse onus of proof are concerned, as I said in an interjection to Senator Evans, not even that bloodhound group on the matter of reverse onus of proof, the Senate Scrutiny of Bills Committee, raised that issue in any way, shape or form in its seventeenth report of 4 December last year. The Committee stopped its concerns at section 65 and did not proceed any further. Presumably since it did not proceed any further, it was not concerned that any reverse onus of proof applied to this. The more outrageous of the claims have been that if this legislation goes through in its present form, any far-fetched result which is desired by a consumer or a client of a lawyer, doctor or professional organisation will somehow have to be met or the provider of the service will find himself faced with litigation. I would have thought that that sort of thing was too ludicrous even to put forward. To hear it expressed in one form of another-- Senator Durack —Have you read the section? What about just reading it? Senator HAINES —Senator Durack pointed out himself that the section he finds most offensive applies in the main to corporations. Our amendment picks that up to a certain extent in exempting architects and engineers, although not for the reason that they are corporations. Even in the United States of America, where people have a mania for litigation, the situation does not go as far as suggesting that if a client is not acquitted or a patient is not cured, then the lawyer or the doctor responsible will be up on a charge of some sort or another. If that were the case we would certainly have no oversupply of lawyers or doctors in this country because, as Senator Evans pointed out, in every case that goes to trial at least one lawyer has to lose, and the profession itself would be in severe difficulties, I would have thought. It is simply not something that is likely to happen, and to suggest that it is is rather irresponsible scaremongering. As far as Senator Sheil's argument that this is going to stop doctors experimenting on patients is concerned, I have great difficulty in imagining that he was even serious in suggesting that doctors have been leaping around the place, plunging into patients' bodies with a will, or filling them up with all sorts of new preparations just to see what happens. If he is suggesting that that is what is going on and approves of it, I am glad that he is in this place and not out taking an unprepared community by surprise. I will be speaking to our amendment in due course. Suffice it to say at this time that we will not be supporting the Opposition. Senator MICHAEL BAUME(New South Wales)(9.51) —Trying to establish the basis on which Senator Haines dismissed the Law Council of Australia's cogent arguments is at best disappointing. The issues surely are the things that should be concerning her, not whether the Law Council's attitudes are supported 100 per cent by members of the Law Council. It seems to me churlish at best and unintelligent at worst to deal with the Law Council's points in such a way. The fact is that the issues themselves and the manner in which the Law Council so adequately dealt with Senator Haines's earlier nonsense have obviously irritated her to the extent that she seeks to use curious debating tactics to try to diminish the import of what the Law Council has to say. In response to another point Senator Haines made about incorporation-and this was one of the reasons for her having architects and engineers-I wonder whether she is aware of the fact that a very large number of medical practitioners are incorporated. I have a letter from the New South Wales Medical Defence Union Ltd, which is a professional indemnity organisation representing some 5,000 medical practitioners in New South Wales and the Australian Capital Territory who are very concerned about this legislation. Among many points the Medical Defence Union makes which are generally supportive of the Law Council's position-once again I have to say, to fit into Senator Haines's proposition, that perhaps not 100 per cent of the 5,000 medical practitioners involved agree with this, just as, no doubt, not the entire membership of the Australian Consumers Association would even know what sort of tricks that lot get up to-is the following point: It is now common for medical practitioners to incorporate a company (in accordance with guidelines laid down by the AMA) to carry on a medical practice. Accordingly, the amendment will have a substantial application to the profession as it is practised today. So let us hear some logical response if we can from Senator Haines about why in this circumstance doctors should be excluded from her particular amendment. The Defence Union also makes the point that what is clear is that a new head of liability is to be created against which medial practitioners will have to insure, and the cost of such insurance will have to be passed on to the public. The letter also states: The proposed amendment will enable a medical practitioner to be found liable for damages in the absence of any lack of care or skill on his or her part (and in some cases result in strict liability). It further states: The amendment could result in an increase in defensive medicine where a medical practitioner avoids a pro- cedure in order to prevent litigation. It could result in practitioners limiting their fields of practice, thereby placing strains on the public health system. It could also lead to a very real reluctance to perform new procedures or techniques. It continues-and this is what Senator Sheil said: The entitlement of a patient to damages from a medical practitioner and the correlative liability of such practitioner is presently governed by the law relating to negligence. The patient is entitled to the proper exercise of the relevant care and skill of the practitioner . . . to depart from this criterion, without any available investigation, would be quite wrong. I mention that to indicate that there is another solid body of professional opinion, and I presume those people are not simply ringing a bell to see whether I salivate. I believe they have a real concern. It is worth mentioning in passing that this question of fear of action is a practical one, and that quite recently, in October last year, the American Consulting Engineers Council expressed some concern about this matter of widespread escalation of insurance premiums and the unavailability of insurance for manufacturers, small businesses, accountants, doctors, engineers, and other professions which is now beginning in the United States and which the Council says could be solved if the court system returned to a view of tort law based on the concept of fault. The Council made the point that the trend towards liability without fault of proof of caus- ation is based upon emotionalism and the unprincipled willingness to award recoveries against deep pocket defendants. This sort of law encourages that kind of activity, inciting people, particularly through the uncontrolled consumerism that Senator Haines supports. This, as I mentioned before, creates an atmosphere of enthusiastic pursuit of professionals, and this law underlines that trend. I stress again the comment by the American engineers that the trend towards liability without fault or proof of causation is based upon emotionalism in particular-and that emotionalism has been demonstrated here tonight-and the unprincipled willingness to award recoveries against deep pocket defendants. Let us recognise that in Australia the providers of these services are not people with unlimited deep pockets. The usurers of people in this area will charge rates which will ultimately be forced to be reflected upon the users of those services. This kind of law, by encouraging a much more enthusiastic pursuit of providers of services, in effect without fault, or without proof of causation, seems to me a step in the wrong direction in the interests of everyone, not only of the professionals involved, but particularly of the great bulk of users of these services, who are not vexatious litigants, who are not the pains in the neck who in so many instances are funded by government to pursue honest, decent suppliers of goods and services and who, frankly, take advantage of this excessive move by governments like this one into protecting what is, quite frankly, a fringe element of our society which is adding to the disadvantage, discomfort and cost of the great bulk of users of services. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(9.59) — The squalid little burst of McCarthyism that we heard from Senator Jessop a little while ago was just about all we needed to round off the complete intellectual shambles the Opposition has made of its case on this particular clause. There are just a few matters that I think need to be rounded up out of that shambles before this matter is brought to finality. The first point I want to make clear, because it has been a recurring theme of Senator Michael Baume's contributions as well as some others, is that the Government has not put together its position on this by reference to either appeals to authority, or the kind of appeals to the nastiness of the opponents of the clause that we have heard from a couple of speakers tonight. The Law Council of Australia, which has taken a major interest in the progress of this legislation, has made a very large number of submissions on the trade practices amendments going back to the original Green Paper in 1984. A great many of those submissions, proposals and suggestions have been adopted by the Government because each one has been treated on its merits, and many of the proposals put by the Law Council have been thoroughly meritorious. That is not to say that everyone has had the same degree of force or acceptability. Certainly, we have found it necessary on balance to reject the Law Council's arguments in relation to this particular clause, not least so far as they bear up on this question of onus of proof. Let my last word on the subject of onus of proof be in response to Senator Michael Baume's suggestion that these clauses were all the product of some social security conspiracy back in 1974. I remind him of a new sub-section in identical terms-section 74b (2), which probably dates from 1978 and which casts exactly the same kind of evidentiary onus, if you like, and gives exactly the same kind of defence. Senator Michael Baume —Mea maxima culpa. Senator GARETH EVANS —I cannot hope for a more handsome apology than that from Senator Baume, so the case rests. I refer to another theme of Senator Baume's, one which I think was repeated by Senator Jessop as the foundation for his assertion that this clause was all about Marxist millennium. The objection is that the Government simply has not stated at any point the aims behind this particular clause. Let me finish up by saying something about that. The aims have been clearly stated. The mischief simply is this: The present Act selectively exempts all classes of professionals from duties which are imposed upon suppliers of other kinds of services as well as suppliers of goods and that selective exemption has no rationale and no justification. That is the mischief-that there has been some selective exemption granted to a particular section of the community which does not need nor deserve such exemption. All that is being sought here in the extension, in particular of section 74 (2)-it has not been doubted by anyone that the duties in section 74 (1) already exist as a matter of common law-is that a natural and logical addition formulation of duties and responsibilities be extended to professionals in a way that brings them into line with others in the community equally worthy of attention and support from the community and that they should be treated in the same way. The kinds of warranty we are here talking about, of fitness for purpose in the particular service that is rendered is a duty that is quite appropriately one of universal application. If a concreter were employed to pour foundations for a coastal house to be built on sand but did not render services fit for that particular purpose he would be liable-he ought to be liable-under section 74 (2). Equally, why should not a lawyer be liable if he fails to draft a valid will when he is employed for that particular purpose by a client? Senator Michael Baume —He is liable under common law. Senator GARETH EVANS —It is quite arguable-certainly it has been argued and clearly established by the courts in relation to architects and engineers-that there is an element of fitness for purpose built into the very concept of due care and skill. That, indeed, makes and meets the point that I want to make. Honour- able senators opposite are not talking about some fundamentally new class of obligation but essentially about another way of describing that same standard professional obligation. It is important that the obligation be expressed not in an absolute way but in a qualified way. It is important that there not be liability without fault or liability without causation, to mention two of the points that Senator Baume raised. There is not liability without fault or liability without causation in the way in which these sections are cast. It is important that professionals not be exposed to liability where it is clear that the consumer does not rely on the alleged warranty in question or where it would be unreasonable for a consumer to so rely. It is important that there be those qualifications and that those qualifications are built into the text and fabric of these provisions. It is important not that the services provided by the professional be absolutely and unequivocally in every conceivable sense fit for the purpose but that they be reasonably fit for the purpose identified. It is appropriate that there be that kind of qualification. That kind of qualification is there in the language of this provision as it applies to professionals. It sets standards which are capable of being met by all classes of professionals which arguably amount only to the most marginal extension, if at all, of the common law obligations that professionals already enjoy. They are standards which have been imposed on suppliers of goods all the way back. They are standards that have been applied to the providers of other kinds of non-professional services all the way back. There is a mischief in terms of the universal application of provisions of this kind in legislation of this kind. There is a mischief in saying that professionals are somehow above, beyond or outside the scope of these kinds of reasonable obligations. That is all this clause is about. It ought to be accepted on those terms. Senator MacGIBBON(Queensland)(10.06) —I have no wish to prolong this debate and I would not have entered it but for the astonishing statements of Senator Gareth Evans in the early part of his peroration when he carried on about how some group in the community had a selective exemption. He said that the professionals in Australia had this selective exemption from any obligation under the law to practice their profession. Senator Gareth Evans —Not under the law; under the Trade Practices Act. Senator MacGIBBON —I cannot believe that Senator Evans does not know that there are medical boards, dental boards and optometrical boards and that people in these professions are licensed to practise in the community. The people they treat-their patients-have recourse to common law against negligent practice, against carelessness and against professional incompetence in any way at all. To have to go through the business of bringing in this Bill in order to bring professionals under the umbrella of all these other things and put obligations on them is, as Senator Michael Baume said, putting a bonanza in the hands of the lawyers of the community-a bonanza which simply has to be paid for by the community. I come back to the point that got me up. Senator Evans's ignorance on this matter is just astonishing. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(10.08) —Just to set the record straight, Senator MacGibbon knew perfectly well before he embarked on that schoolboy debating extravaganza that I was not saying that professionals, doctors in particular, are exempt from liability for the services they render. There are, of course, a variety of obligations-Senator MacGibbon has described them-including obligations at common law, which I acknowledge. I was talking simply about exemptions from the liabilities and duties imposed by the Trade Practices Act and how that is indefensible in principle in legislation of this kind which is supposed to be, and should be, of universal application. Senator DURACK(Western Australia)(10.09) —When Senator Gareth Evans first rose in this debate to reply to my reasons for proposing my amendment, namely, to exempt professional services from the operation of section 74 of the Trade Practices Act, he read out a statement which he said had been prepared by the Attorney-General (Mr Lionel Bowen) to be read to the Senate for the purposes of the Acts Interpretation Act. That statement is supposed to be able to enlighten judges as to what on earth this section will mean in the light of the amendment now proposed to be made to it. All I can say is that it will be more likely to confuse the judges who are foolish enough to resort to it than if they were left to their own devices in trying to make sense of the legislation. Senator Evans is very keen on talking about schoolboy debating and that sort of thing. One bit of schoolboy debating that appeared in that statement was to the effect that the Opposition amendment is deficient because it will exclude the provisions of section 74 (1) from professional services. Section 74 (1) incorporates the ordinary common law principle that there is an implied warranty of skill and care in the supply of services. The exclusion of professional services from this section of the Trade Practices Act will have no effect whatever on the common law liability of exercising skill and care under a contract for service. So right from the beginning of this debate we have had a bit of schoolboy antics from Senator Evans. Senator Evans knows perfectly well that the exclusion of professional services from the Trade Practices Act will make no difference whatever to the obligations that professionals have under the common law and, as Senator MacGibbon said, under the other fairly stringent regulatory provisions of bodies that are established in respect of most professions in the States. The court, in trying to understand how this provision will apply, will want to know what the omission or mischief is in the existing state of the law which has led the Government to introduce this amendment. I understand from an answer that Senator Evans has just given to Senator Michael Baume that the mischief perceived by the Government was the limited nature of the application of section 74-limited, as I have already indicated, to certain types of services which are set out in section 74 (3). The Minister is saying that the sub-section is quite deficient and that we need to introduce a new amendment to apply to services generally. At least, that would be the logic of his argument. The amendment certainly applies to services but it excludes from its application two types of contracts for services. It is argued that the mischief is that the existing section does not apply to all services. But nor does the amended sub-section apply to all services. Quite considerable categories are excluded in the amended sub-section although not to the extent that they are excluded under the existing one. Proposed new sub-section (3) refers to: (a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on . . . by the person for whom the goods are transported or stored; or (b) a contract of insurance.'. I would have thought that they are two pretty large hunks of exclusions. Yet, Senator Evans's sole justification for this amendment is that the existing mischief is that there are exclusions and whole areas that are not covered by the existing Trade Practices Act. When one tries to unravel this mystery about why these exclusions are included, one finds that the explanatory memorandum states: However, a new sub-s. 74 (3) will provide that the section does not apply to contracts for the storage . . . of goods . . . or contracts of insurance. Contracts of insurance are covered by the Insurance Contracts Act 1984 and there is no need for additional regulation in this area. For heaven's sake, why is there any additional need for the regulation of professional services which are covered, and have been covered very effectively, by the common law? All professions are now covering themselves very extensively in terms of insuring against their liabilities. No professional man these days is under any doubt about what his liabilities are and their extent. Not only has professional indemnity insurance been taken up but medical defence organisations have been established to cope with the extent to which professional people are being sued for breaches of guarantee to exercise reasonable care and skill. In addition, as Senator MacGibbon and I have said, there are very strict provisions in State law. Yet, according to the Attorney-General, insurance contracts are excluded because there is already an Insurance Contracts Act and we do not need the Trade Practices Act in this area. Well, we do not need the Trade Practices Act to cover the regulation of professional services for the reasons that I have already given. The explanatory memorandum goes on to state: In the area of transportation and storage of goods for the purpose of a business, business parties have well-established insurance arrangements which sometimes involve the limitation of liability in a way contrary to s.74. In other words, there are appropriate ordinary contractural regulations. The explanatory memorandum continues: No useful purpose would be served in upsetting these arrangements, and for this reason contracts for the storage and transport of goods . . . have been exempted from the application of this section. So where is the rationale of the Government? Where is the principle that the Government is following in this area? When really pressed, Senator Evans has been able to give only one reason, namely that the existing section does not cover all services. The Government's own amendment does not cover all services. The Government's own explanatory memorandum for the amendment refers to other forms of regulation, either by State law, common law, common form or industry contractual arrangements. No doubt all of these sorts of things are very good reasons for accepting or not applying the Trade Practices Act. There are excellent reasons why the Trade Practices Act should not apply to professional services. There are perfectly adequate arrangements to ensure that professional people exercise skill and care and are obliged to compensate those who suffer if they fail to exercise that skill and care. All that the Government's amendment does is raise very great doubts about how that liability is going to apply in the future. I think that, almost certainly the amendment will extend considerably that liability. Senator Evans did not come in here and say: `Well, that is the mischief; we do not think the existing liability of professional people is good enough, we want to extend it'. That was not the rationale he gave. He gave a very specific rationale that was limited to the fact that the existing Act applies only to certain types of services. In our view the Government has advanced absolutely no reason why the existing obligations on professional people are not working perfectly well. In fact there are very considerable obligations on professional people. Widespread redress is available against professional people for failure to meet those standards. The Government has brought forward no adequate reason why the law is not working perfectly adequately and why it should be extended in the way it is seeking by way of amendment. It is simply another case of this Government wanting to create more problems by creating more legislation. The Government has incredible faith in the belief that it will somehow add to the good of the community if it keeps on legislating and passing more and more laws. We resist that view. That is why we have moved our amendment to exclude professional services from this clause. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(10.20) —There are a couple of points that need reply just to clarify the record. Senator Durack began with a great flourish of triumph saying that I had advanced some schoolboy debating point in arguing that the Opposition was off key not only in seeking to remove the application of section 74 (2) to professionals-the new obligation in respect of warranties of fitness for purpose-but also in going so far as to exclude section 74 (1), the guarantees of due care and skill from professionals. Senator Durack said: `Why should it make any difference to remove section 74 (1) from professionals, because those obligations already exist as a matter of common law?' That is perfectly true, as a matter of common law; there is an obligation of due care and skill. But the big difference between the common law duty, obligation, liability and the statutory duty, obligation, liability is that one can contract out, as a matter of common law, from exposure to that particular liability and one cannot contract out of that same liability or duty under the Trade Practices Act. No professional, no provider of a service, can contract out of a liability under section 74 (1) to provide that service with due skill and care by virtue of section 68 of the Trade Practices Act, which expressly prohibits that. There is no such limitation on what one can do at common law-thus the disclaimers that people are required to sign in all sorts of professional situations and in which they have no option but to sign. That is why it is, among other things, that we have argued that these sorts of obligations in the statute, from which people cannot contract out, are important to apply universally and not selectively. That brings me to the only other point I want to deal with in relation to what Senator Durack has said-that is, his claim that the Bill, as it is now drafted, is not, in fact, universal in its application; there is this exemption for transport arrangements between commercial parties and contracts of insurance. There was a very good reason for both those exemptions. The contracts of insurance exemption is founded on the fact that there is an existing framework of statutory liabilities and responsibilities-not common law ones, but statutory ones now-which make unnecessary, and indeed undesirable, the duplication of a statement of rules about liability. So far as the transportation and storage of goods is concerned, consumers are still protected by the operation of this particular statute, which is in this part, after all, a consumer protection provision, not one designed to protect business from each other in ordinary commercial transactions. Provision of transport services and storage services as between business parties are exempt essentially because, as paragraph 153 of the explanatory memorandum puts it: . . . business parties have well-established insurance arrangements which sometimes involve the limitation of liability in a way contrary to s. 74. No useful purpose would be serviced in upsetting these existing, real world, practical commercial arrangements. It would not be consumer protection legislation that one would be implementing if one cut across those arrangements; it would be business protection legislation, and that is not what this particular part is about. So there is a well reasoned, thought through approach to all these issues that have been the subject of critical attention tonight. It is not a matter of selective, ad hoc indignation or legislative adventures on the part of the Government; this is a sensibly thought through legislative scheme. It does rectify anomalies to the extent that the professions have been exempt in circumstances which, in principle, they should not have been in the past, and the balance sheet has now evened up appropriately in that respect. Question put: That the words proposed to be added (Senator Durack's amendment) be added. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 29 Noes . . . . . . . . . . . 35 —— Majority . . . . . . . . . 6 —— Archer, B. R. Knowles, S. C. Baume, Michael Lewis, A. W. R. Baume, Peter MacGibbon, D. J. Bjelke-Petersen, F. I. Messner, A. J. Boswell, R. L. D. Newman, J. M. Brownhill, D. G. C. Parer, W. R. Carrick, Sir John Puplick, C. J. G. Collard, S. J. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G. Durack, P. D. Short, J. R. Guilfoyle, Dame Margaret Teague, B. C. Hamer, D. J. Vanstone, A. E. Hill, R. Watson, J. O. W. Jessop, D. S. Withers, R. G. Kilgariff, B. F. Aulich, T. McKiernan, J. P. Black, J. R. Macklin, M. J. Bolkus, N. Maguire, G. R. Childs, B. K. Mason, C. V. J. Chipp, D. L. Morris, J. Coleman, R. N. Ray, RobertColston, M. A. Reynolds, M. Cook, P. F. S. Richardson, G. F. Cooney, B. Robertson, E. A. Crowley, R. A. Ryan, S. M. Elstob, R. C. Sanders, N. K. Evans, Gareth Sibraa, K. W. Foreman, D. J. Siddons, J. R. Gietzelt, A. T. Tate, M. C. Giles, P. J. Vigor, D. B. Haines, J. Walsh, P. A. Jones, G. N. (Teller) Zakharov, A. O. McIntosh, G. D. Walters, M. S. Coates, J. Townley, M. Button, J. N. Chaney, F. M. Grimes, D. J. (Senator Douglas McClelland did not vote, to compensate for the vacancy caused by the death of Senator Missen.) Question so resolved in the negative. Progress reported. The PRESIDENT —Order! The question is: That the Senate do now adjourn. Senator REID(Australian Capital Territory)(10.30) —Honourable senators will be astonished to know that it is necessary for me again to raise the question of the standard of health services in hospitals in the Australian Capital Territory. We again have the situation that there are strikes in the hospitals, the kitchens are not operating as they ought to, and food is having to be prepared by management staff. The strikes affect in particular, of course, the Jindalee nursing home to which I have referred previously, but it has also resulted in the cancellation once again of elective surgery in our hospitals. Once upon a time the waiting list for surgery was quite modest. Prior to 1984 it was never more than 500 patients, but now we have 1,127 people waiting for surgery, some of whom would have had surgery tomorrow but who again have been told that it will not go ahead. This means, of course, that many families have their lives and their arrangements disrupted, and they have the anguish of waiting some considerable time before they will have any idea as to when they will be able to go into hospital. I do not think those responsible have much thought at all for the sick who are affected as a consequence of their actions. I had a letter quite recently, before this event, from the ACT Society for Physically Handicapped Inc. That Society complained about the problems of physically disabled children requiring corrective surgery being, in effect, pushed around and having to wait and the fact that they had to approach a local member to get prompt attention. As the Society said, that is not the way the hospital system should be run. The Society's letter stated that families which have a disabled child are under a great deal of pressure without the additional burden of having to prepare their child for hospital over and over again when surgery is cancelled. Nearly 1,200 people have been awaiting surgery since last October. When we refer to elective surgery, we are not talking about things that people have done just for fun, we are talking about all those operations which do not come into the category of life threatening. Just think what it means to people with arthritis waiting for hip replacements who have to wait an extra six months or so for that operation-the pain and the inconvenience. For one constituent of mine who, until quite recently at least, had waited six weeks for a hernia operation and who had been off work for six weeks, the problems his family were facing in financial terms were enormous. It is very hard indeed to find out exactly what the problem is but it comes really under the category of demarcation disputes. The Hospital Employees Federation of Australia says that the ACT Health Authority will not talk with it. In the Canberra Times only last week there was a photograph of members of that union barging in to a meeting of the Authority wanting to discuss matters, but only a day or so before in the news I heard the union say that it was not free for meetings for about three weeks. Tonight on television the Secretary of the union said that the Authority always wanted to talk to them after the decision had been made. I wonder what there is to talk about until the Authority has decided that there are decisions to be made. It seems to me that the Authority has been making itself available. It has talked to other unions and the same problems do not exist with others involved in the production of health services, so I wonder what the real problem is and why it is that we are continually having problems. It is the sick, the ones in our community who are least able to get out and about and to show their anger, who are suffering as a consequence of what is again happening and affecting our government nursing homes and the hospital. Of course, I must mention in passing the Morling Lodge nursing home, in relation to which this same union has had bans on kitchen staff for nearly two weeks now, with the result that there are a number of empty beds. Honourable sen- ators will recall that I have said on previous occasions that there are about 186 frail aged in our community in need of nursing home accommodation but because of a demarcation dispute there are empty beds in one of our nursing homes and nothing seems to be done about it. I have not heard a word from the Minister for Employment and Industrial Relations (Mr Willis) as to what the Government feels should be done to keep our hospital system functioning properly and without these delays that continually occur and continually affect the sick in our community. I think it is time the Government faced up to its responsibility of providing a health service. We are all contributing our Medicare levies but we are not getting what we were promised would be available in the way of health care. I hope that by tomorrow we will get some solutions, but that does not seem too promising because it seems that the union may not be available to go to the court hearing that I understand is scheduled for tomorrow. If that is the case, I think the Government has to have a very close look at how the hospitals are functioning and what steps need to be taken to see that this does not continue. Senator GARETH EVANS(Victoria-Minister for Resources and Energy)(10.38) —I will ensure that Senator Reid's remarks are brought to the attention of the appropriate Minister or Ministers. The PRESIDENT —It has been brought to my attention that the special adviser to the Minister for Communications (Mr Duffy) and the Department of Communications, Mr James Oswin, retires from the Commonwealth Public Service tomorrow, 30 April. The Minister for Communications issued a Press release on 10 April concerning Mr Oswin's retirement. I take this opportunity to pay a personal tribute to the public service of Mr Oswin who, prior to joining the Public Service, had a long and distinguished career with the Channel 7 network. He was appointed Secretary to the Department of the Media when I became the Minister for the Media in December 1972 and he occupied that position for two and a half years before he became the Australian Ambassador to the United Nations Educational, Scientific and Cultural Organisation. In the period when Mr Oswin was the Secretary to the Department of the Media tremendous advances in Australian communications were made. To mention a mere few, for the first time in 40 years additional Australian Broadcasting Corporation and commercial radio stations were added to the airwaves of a number of Australian capital cities, namely, Canberra, Sydney, Melbourne and Adelaide. Frequency modulation broadcasting was introduced in this period. Public broadcasting stations were established and ethnic broadcasting was introduced. What was the old News and Information Bureau of the Department of the Interior became the Australian Information Service. The film division of that old Bureau became Film Australia. The concept of Australian Government bookshops in the capital cities was established and the Australian Film Commission was set up. As I have said, these are just a few of the initiatives that took place under Mr Oswin's stewardship in these 2 1/2 years. He contributed greatly to the development of the media resources of Australia. I wish to place on record my personal appreciation of his public service to the Australian community. I wish him and his wife, Frances, a long, healthy and enjoyable retirement. Question resolved in the affirmative. Senate adjourned at 10.41 p.m. The following papers were tabled: Administrative Decisions (Judicial Review) Act-Regulations-Statutory Rules 1986 No. 60. Australian Apple and Pear Corporation Act-Regulations-Statutory Rules 1986 No. 58. Builders Labourers' Federation (Cancellation of Registration-Consequential Provisions) Act-Regulations-Statutory Rules 1986 No. 59. Child Care Act-Regulations-Statutory Rules 1986 No. 52. Compensation (Commonwealth Government Employees) Act-Regulations-Statutory Rules 1986 No. 80. Criminology Research Act-Regulations-Statutory Rules 1986 No. 51. Currency Act-Regulations-Statutory Rules 1986 No. 83. Customs Act-Regulations-Statutory Rules 1986 Nos 76, 77. Defence Act-Determinations 1986- No. 15-District Allowance and Vehicle Allowance. No. 17-Intermediate Term Duty Living Allowance and others. Excise Act-Regulations-Statutory Rules 1986 No. 78. Export Control Act- Export Control (Orders) Regulations-Orders 1986-No. 7-Prescribed Goods (General) as amended (Amendment). Regulations-Statutory Rules 1986 No. 79. Federal Court of Australia Act-Rules of Court-Statutory Rules 1986 No. 61. International Organizations (Privileges and Immunities) Act-Regulations-Statutory Rules 1986 Nos 55, 56, 57, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75. Lands Acquisition Act-Statement by the Minister describing land acquired by agreement under sub-section 7 (1) of the Act, for specified public purposes. National Health Act-Regulations-Statutory Rules 1986 No. 53. Nursing Homes Assistance Act-Regulations-Statutory Rules 1986 No. 54. Public Service Act-Determinations 1986 Nos 11, 18, 21, 22. Public Works Committee Act-Regulations-Statutory Rules 1986 No. 82. Remuneration Tribunals Act-Remuneration Tribunal-Determination 1986-No. 3-The Secretary to the Department of Territories and others, dated 13 March 1986. Seamen's Compensation Act-Regulations-Statutory Rules 1986 No. 81. Seat of Government (Administration) Act-Ordinances 1986- No. 4-Seat of Government (Administration) (Amendment). No. 5-New South Wales Acts Application (Amendment). No. 6-Motor Traffic (Amendment) (No. 2). Telecommunications Act-Regulations-Statutory Rules 1986 No. 62. GOVERNOR-GENERAL'S PROCLAMATIONS-COMMENCEMENT OF SECTIONS OF AN ACT: A Proclamation by His Excellency the Governor-General was tabled, notifying that His Excellency had proclaimed the following sections of an Act to come into operation on the date specified: Customs and Excise Legislation Amendment Act (No. 2) 1985-Sections 4, 7, 12, 18 and 21-1 May 1986 (Gazette No. S 182, 24 April 1986). The following answers to questions were circulated: (Question No. 24) Senator Bolkus asked the Minister representing the Minister for Defence, upon notice, on 22 February 1985: (1) What satellites are: (a) currently being tracked by satellite tracking stations in Australia; and (b) receiving transmission from or sending data to satellite ground stations in Australia. (2) What are the: (a) formal designations; (b) orbital parameters; and (c) dates of launch of each of these satellites. (3) Where are these ground stations located and which stations are involved with which satellites. Senator Gareth Evans —The Minister for Defence has provided the following answer to the honourable senator's question: The comprehensive detail sought by the honourable senator is not available. Tracking of satellites in Australia is undertaken by universities, Federal and State Government authorities, and private companies and individuals for research, mapping and navigation purposes. The Department of Defence does not maintain records of such tracking activity. Nor is it concerned to monitor all users of satellite communications systems in Australia. Details of satellites tracked from or otherwise utilised by ground stations in Australia operated by Defence or in co-operation with Defence are as follows. No information is provided in respect of classified satellite programs. (1) a. 5 USN NAVSATS, 7 NAVSTAR and GEOSAT. b. DSCS II, FLTSATCOM and SKYNET 2B. (2) a. formal designation (international designations in brackets where known) b. orbital parameters c. date of launch NAVSAT (1967-48A) NAVSAT (1973-81A) NAVSAT (1977-106A) NAVSAT (1981-44A) NAVSAT (1984-110A) NAVSTAR 3 (1978-93A) NAVSTAR 4 (1978-112A) NAVSTAR 6 (1980-32A) NAVSTAR 8 (1983-072A) NAVSTAR 9 (1984-059A) NAVSTAR 10 (1984-097A) NAVSTAR 11 (1985-93A) unless otherwise indicated details were provided in response to House of Representatives Question on Notice No. 4881 of 19 August 1982 (Hansard 21 October 1982 p. 2467) 18/5/67 30/10/73 28/10/77 15/5/81 11/10/84 7/10/78 11/12/78 26/4/80 14/7/83 13/6/84 8/9/84 21/10/85 GEOSAT (1985-21A) Orbit between 760 and 815 km inclined at 108* with a period of 100 minutes Geostationary at 175* E and 60* E 13/3/85 DSCS II-Western Pacific and Indian Ocean satellites FLTSATCOM Geostationary at 72*E and 176*E The particular DSCS or FLTSATCOM satellite utilised may vary from time to time due to operational requirements SKYNET 2B (1974-94A) Drifting between 0*E and 140* E over a 2 year cycle (3) a. TRANET Smithfield, SA-NAVSATS, NAVSTAR and GEOSAT. b. Harold E. Holt Naval Communications Station, North West Cape, WA-FLTSATCOM and DSCS II. c. Watsonia Barracks, MacLeod, Victoria-DSCS II. d. Joint Defence Space Research Facility, Pine Gap, Northern Territory-DSCS II. e. Joint Defence Space Communications Station, Nurrungar, South Australia-DSCS II. f. Eight portable geodetic receivers used by Army Survey for mapping purposes within Australia-NAVSATS. g. In addition, the Advanced Engineering Laboratory, Salisbury, South Australia, while not strictly a satellite ground station, makes occasional experimental use, for periods of a few days at a time, of FLTSATCOM and SKYNET 2B. h. Further, eight ships of the Royal Australian Navy are currently fitted with FLTSATCOM receivers to provide communications interoperability at sea with ships of our allies. (Question No. 584) Senator Withers asked the Minister representing the Minister for Primary Industry, upon notice, on 9 October 1985: (1) What sum is allocated in the current financial year for hospitality/entertainment which may be expended: (a) by the Department; and (b) by each and every Statutory Authority for which the Minister has responsibility. (2) What were the guidelines in force as at 1 September 1985 for expenditure from the hospitality/ entertainment account of: (a) the Department; and (b) each and every Statutory Authority for which the Minister has responsibility. (3) Following upon the Statement by the Treasurer ``Reform of the Australian Taxation System'' on 19 September 1985 what action is proposed in relation to questions 1 and 2. Senator Walsh —The Minister for Primary Industry has provided the following answer to the honourable senator's question: (1) (a) $20,400 (1) (b) Statutory Authority Allocation $ Australian Apple and Pear Corporation... 5,000 Australian Canned Fruits Corporation... 500 Australian Dairy Corporation... 57,300 Australian Dried Fruits Corporation... 2,500 Australian Honey Board... 1,000 Australian Meat and Livestock Corporation... 58,950 Australian Meat and Livestock Industry Policy Council... 1,500 Australian Tobacco Board... 600 Australian Wheat Board... 309,500 Australian Wine and Brandy Corporation... 18,525 Australian Wool Corporation... 169,773 Pork Promotion Committee... 1,500 Total... 626,648 (2) (a) The Department of Primary Industry, in common with all Government Departments, is governed by Finance Directions 13/1 and 13/2 and Finance Guidelines 13/1 to 13/14. These Directions and Guidelines require all entertainment and hospitality expenses to be specifically approved and accounted for, and that any expenditure should be of direct benefit to the Commonwealth. Authority to approve entertainment and hospitality expenditure is restricted to three senior officers in Central Office and the Regional Director in each Region. All approved expenditure must be fully accounted for by receipts or vouchers. (2) (b) The Guidelines in force at 1 September 1985 for expenditure from the hospitality/entertainment accounts for each of the Statutory Authorities are as follows: AUSTRALIAN APPLE AND PEAR CORPORATION Entertainment expenditure can only be incurred in the course of bona fide Corporation business and must be specifically approved by the Chairman or General Manager. AUSTRALIAN CANNED FRUITS CORPORATION Entertainment expenditure requires specific approval from the Corporation's Board and must be fully accounted for by receipts. AUSTRALIAN DAIRY CORPORATION The Corporation Board establishes a budget for official functions for each of the Corporation's operating Divisions at the time of agreeing to the overall annual budget. Guidelines for incurring expenditure are: in normal circumstances the number of members and staff attending official functions should not exceed the number of guests members and staff are required to lodge receipts for official functions and provide details of guests the decision to hold official functions is taken by individual Divisional Managers who are required to have regard to the appropriateness of expenditure and budgetary constraints. AUSTRALIAN DRIED FRUITS CORPORATION Entertainment is only extended to overseas buyers and agents and expenditure is approved by the Corporation Board. AUSTRALIAN HONEY BOARD No formal written guidelines for entertainment or hospitality expenditure were in force at 1 September 1985. Any such expenditure is, however, specifically approved by the Board. AUSTRALIAN MEAT AND LIVESTOCK CORPORATION Claims for entertainment expenses must list the names of the individuals entertained and the organisations they represent. Receipts should support such payments wherever practicable. The following guidelines regarding entertainment expenses have been circulated to all Directors, Managers and State Managers entertainment expenditure should have a clear benefit and relationship to the functions of the Corporation staff are not to entertain one another even when on interstate or overseas visits staff are not under any obligation to privately entertain Corporation members the reaction from the trade and producers to generous entertainment expenditure by Corporation staff is one of resentment it is appreciated that expenditure on entertainment is at times necessary and unavoidable, and there are frequent occasions when such expenditure is on a reciprocal basis. AUSTRALIAN MEAT AND LIVESTOCK INDUSTRY POLICY COUNCIL Expenditure for hospitality or entertainment is at the discretion of the Chairman and is normally extended only to senior industry representatives. Detailed records are kept of all entertainment or hospitality expenditure. AUSTRALIAN TOBACCO BOARD The Board has no formal written guidelines for expenditure on hospitality or entertainment. Any such expenditure is approved by the Board as required. AUSTRALIAN WHEAT BOARD Australian Wheat Board (AWB) guidelines state that representational expenditure may be incurred where the provision of hospitality to non-AWB personnel is considered material to AWB activities and objectives. Its use is generally confined to more senior staff upon the authorisation of the appropriate Assistant General Manager or State Manager. In general, funds should not be expended on hospitality to AWB staff. AUSTRALIAN WINE AND BRANDY CORPORATION Authorised staff members are permitted to outlay moneys against the entertainment budget only to the extent to which it is necessary to further the aims of the Corporation in its development of the wine industry. AUSTRALIAN WOOL CORPORATION Control over hospitality and entertainment expenditures are exercised both at managerial level in instances where prior approval was sought before expenses were incurred and through reimbursement procedures detailed in the AWC manual of Policies and Procedures, Part 1. These procedures state that a claim for reimbursement must be supported by receipts or credit card vouchers, the purpose of the entertainment together with the names of people entertained are to be listed, and details of any special prior approval are to be provided. PORK PROMOTION COMMITTEE The Pork Promotion Committee has no formal written guidelines for hospitality or entertainment expenditure. Any such expenditure is approved by the Committee as required. (3) The Department of Primary Industry is, in accordance with Department of Finance Circular 1985/18, recording and monitoring entertainment expenses so that when the rules governing the liability for the new tax provisions are settled the necessary transfer of funds to revenue can occur. The Minister for Finance will provide a more detailed answer on this matter. Statutory Authorities, although not formally subject to the directives of Finance Circulars, have nevertheless generally adopted the practice outlined in Finance Circular 1985/18 and are recording and monitoring entertainment expenses so that when the rules governing liability are settled, appropriate taxation payments can be made. In addition, four authorities have provided specific information on action they have taken following upon the Statement by the Treasurer ``Reform of the Australian Taxation System''. AUSTRALIAN DAIRY CORPORATION The Corporation's budget for official functions is not being increased to take account of the new tax but rather the scale and number of functions is being reduced. AUSTRALIAN WHEAT BOARD The AWB is awaiting clarifications of the implications of taxation reform for its operations. The matter has been noted by the Board and will be reconsidered when the proposed fringe benefits tax becomes effective in July 1986. AUSTRALIAN WINE AND BRANDY CORPORATION Entertainment expenditure is being curtailed as an interim measure. The situation will be reviewed when the rules governing the liability for the new tax provisions are settled. AUSTRALIAN WOOL CORPORATION Pending settlement of the rules governing the liability for the new tax provisions the Corporation is taking steps to ensure that any contingent liability that may result from taxation reform is contained within the current 1985-86 Budget. (Question No. 618) Senator Bolkus asked the Minister representing the Prime Minister, upon notice, on 10 October 1985: Has the Australian Bicentennial Authority utilised the services of consultants; if so, (a) who were the consultants; (b) why were the consultants used; and (c) what amounts were paid to the consultants. Senator Button —The Minister Assisting the Prime Minister for the Bicentenary has provided the following answer to the honourable senator's question, based on information provided by the Australian Bicentennial Authority: Since March 1983 the Australian Bicentennial Authority has utilised the services of consultants as follows: (The following 33 pages complete the answer) The Australian Bicentennial Authority Senate Question No: 618 Consultants:-1 March 1983 to 11 October 1985 AAV Australia Purpose: To develop concept and production of audio visual for International Air Show. Working Plan: Written brief. Fee Paid: $27,590.25 Period: April 1985-June 1985 Excess Over Quote: Nil E. Abranson Purpose: Tall Ships Event-Prepare list of windjammers and related data. Working Plan: Briefing prepared by Authority's naval consultant. Fee Paid: $701.39 Period: May 1983 Excess Over Quote: Nil Active Marketing Pty Ltd, Purpose: Prepare Sponsorship Strategies for Tall Ships, Australian Exhibition and Pedal Australia Projects. Working Plan: Briefing notes objectives and proposed priorities provided by Authority. Fee Paid: $10,000.00 Period: May 1984-March 1985 Excess Over Quote: Nil Acumen Purpose: To design display for Australian Exhibition. Working Plan: Written brief. Fee Paid: $1,500.00 Period: June-July 1985 Excess Over Quote: Nil Alexander & Alexander & Reed Stenhouse Australia Limited (previously named Alexander & Alexander Australia Limited) 1. Purpose: Insurance Brokers Working Plan: Based on tender documents and subsequent discussion. Fee Paid: $5,000.00 Period: January 1984-March 1985 Excess Over Quote: Nil 2. Purpose: Insurance Brokers Working Plan: Continuation of previous consultancy. Fee Paid: $5,500.00 Period: April 1985 to March 1986 Excess Over Quote: Nil Alliance Francaise de Sydney Purpose: Interpretation Services Working Plan: Verbal instructions by Authority's senior staff. Fee Paid: $160.00 Period: May 1983 Excess Over Quote: Nil Anne Barton Graphic Design Purpose: To produce visual format of Annual Report. Working Plan: Written instructions. Fee Paid: $1000.00 Period: May 1985 Excess Over Quote: Nil Antipodean Productions Purpose: Prepare preliminary report on proposed travelling exhibition. Working Plan: Verbal instructions by appropriate Authority staff members. Fee Paid: $600.00 Period: May 1983 Excess Over Quote: Nil Anvil Press Purpose: Preparation of audio visual on ``Tall Ships'' for presentation in Quebec. Working Plan: Verbal instructions. Fee Paid: $680.00 Period: July 1984 Excess Over Quote: Nil G. Appleton Purpose: To assess film and T.V. proposals for possible funding and advise on feasibility of proposed national travelling film retrospective. Working Plan: Written brief. Fee Paid: $6,412.00 Period: October 1983-January 1984 Excess Over Quote: Nil N. Armstrong 1. Purpose: Advise on computer-based displays for travelling exhibition. Working plan: Written instructions. Fee paid: $3,021.60 Period: March-April 1985 Excess Over Quote: $10.00 2. Purpose: To study ideas for computer displays for the Australian Exhibition Working Plan: Written instructions. Fee Paid: $549.00 Period: May 1985-July 1985 Excess Over Quote: Nil Arthur Andersen & Co. 1. Purpose: To review the Authority's financial operations and advise on the installation of a computerised accounting system. Working Plan: Written brief. Fee Paid: $11,000.00 Period: June 1984-August 1984 Excess Over Quote: Nil 2. Purpose: To design and enhance the Authority's accounting systems with a view to their computerisation. Working Plan: Written brief. Fee Paid: $25,000.00 Period: March 1985 Excess Over Quote: Nil 3. Purpose: To assist in the implementation of a computerised accounting system. Working Plan: Written brief. Fee Paid: $55,000.00 Period: From March 1985 Excess Over Quote: Nil Associated Translators & Linguists 1. Purpose: Translate inwards correspondence. Working Plan: As required. Fee Paid: $681.00 Period: March 1985 Excess Over Quote: Nil 2. Purpose: Translate inwards correspondence. Working Plan: As required. Fee Paid: $347.00 Period: June 1985 Excess Over Quote: Nil Australian Exhibition Services Purpose: To design display for Australian Bicentennial Exhibition. Working Plan: Written brief. Fee Paid: $1,795.60 Period: June 1985-July 1985 Excess Over Quote: Nil Australia On The Move 1. Purpose: Prepare a brief for proposed Multicultural Centre. Working Plan: Verbal brief by senior staff. Fee Paid: $500.00 Period: February 1985 Excess Over Quote: Nil 2. Purpose: To prepare draft final report on proposed Multicultural Centre. Working Plan: Written brief. Fee Paid: $5,000.00 Period: April 1985-June 1985 Excess Over Quote: Nil Bates Smart & McCutcheon Pty Ltd Purpose: Submit ideas and drawings for proposed travelling exhibition. Working Plan: Written instructions. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil Besako Pty Ltd Purpose: Report on popular music. Working Plan: Written brief. Fee Paid: $1,500.00 Period: November 1983 Excess Over Quote: Nil The Billie Blue Group Purpose: Prepare a series of illustrations of the Australian Exhibition. Working Plan: Written brief. Fee Paid: $5,000.00 Period: March 1985 Excess Over Quote: Nil Black Inc Recorders Purpose: To translate and record foreign language versions of Authority audio visuals. Working Plan: Verbal brief. Fee Paid: $16,718.00 Period: March 1983-October 1985 Excess Over Quote: Nil B. Bokenstein Purpose: Develop elements of sport & recreation program for people with disabilities. Working Plan: Written brief. Fee Paid: $1,260.00 Period: March-April 1985 Excess Over Quote: Nil Susan Boyer Purpose: To develop illustrations on the Australian Bicentennial Exhibition Theme. Working Plan: Written brief. Fee Paid: $3,000.00 Period: July 1985-August 1985 Excess Over Quote: Nil Bruce Hamilton Pty Ltd 1. Purpose: Produce three audio visuals to update information about the Bicentenary for Business, Communities and International sectors. Working Plan: Written brief. Fee Paid: $103,553.13 Period: September 1984-February 1985 Excess Over Quote: $3,553.13 2. Purpose: Produce an audio visual on the Bicentennial Science Centre. Working Plan: Written brief. Fee Paid: $5,000.00 Period: August 1985-September 1985 Excess Over Quote: Nil E. Butel Purpose: Report on proposed interviewing program to develop the theme for the Australian Exhibition. Working Plan: Written instructions. Fee Paid: $675.00 Period: August 1984 Excess Over Quote: Nil Ceda Consulting Pty Ltd, 1. Purpose: Advise on the formation of an educational advisory committee. Working Plan: Written brief. Fee Paid: $1,917.52 Period: March 1983-April 1983 Excess Over Quote: Nil 2. Purpose: Prepare a brief on the proposed Bicentennial Schools Involvement Program, and assist the national advisory committee in co-ordinating a national education program. Working Plan: Written brief. Fee Paid: $6,008.15 Period: May 1983-December 1984. Excess Over Quote: Nil Clearing House on Migration Purpose: Report on Multiculturalism. Working Plan: Written brief. Fee Paid: $500.00 Period: October 1984 Excess Over Quote: Nil Clive Abbott & Associates Pty Ltd, Purpose: Provide Corporate Liaison Management services. Working Plan: Written brief. Fee Paid: $39,881.75 Period: December 1984-December 1987 Excess Over Quote: Nil K. B. Condon Ltd., Purpose: Prepare a marketing strategy to maximise the participation of the sales promotion industry in the 1988 Bicentennial celebrations. Working Plan: Written brief. Fee Paid: $3,500.00 Period: April 1985 Excess Over Quote: Nil Corporate Education Resources Pty Ltd (Formerly engaged as E Myers) Purpose: To conduct a national survey of education resource materials related to the Australian Studies Project. Working Plan: Written brief. Fee Paid: $9,159.56 Period: May 1985-June 1985 Excess Over Quote: Nil A. da Costa Purpose: Provide translation services. Working Plan: As required. Fee Paid: $30.00 Period: August 1985 Excess Over Quote: Nil Damien Parer Productions Pty Ltd Purpose: To conduct feasibility study of project `Youth Report'. Working Plan: Written brief. Fee Paid: $4,000.00 Period: April 1985-June 1985 Excess Over Quote: Nil Dr Kay Daniels Purpose: Report on women and the Bicentenary. Working Plan: Written brief. Fee Paid: $1,000.00 Period: August 1984 Excess Over Quote: Nil D'Arcy Emerson & Lorimer Pty Ltd Purpose: To design display for Australian Bicentennial Exhibition. Working Plan: Written brief. Fee Paid: $1,795.60 Period: June 1985-July 1985 Excess Over Quote: Nil Darlison Hobbs Project Management Pty Ltd, Purpose: To develop elements of sport and recreation program for people with disabilities. Working Plan: Written brief. Fee Paid: $5,876.70 Period: March-August 1985 Excess Over Quote: Nil David Prowse Graphic Design Purpose: To design presentation visuals for various projects. Working Plan: Verbal instructions. Fee Paid: $4,600.00 Period: April-September 1984 Excess Over Quote: Nil David Varani & Associates Purpose: Submit ideas and drawings for proposed travelling exhibition. Working Plan: Written instructions. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil Department of Housing & Construction 1. Purpose: Submit ideas and drawings for proposed travelling exhibition. Working Plan: Written brief. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil 2. Purpose: Stage II in the development of designs for the travelling exhibition. Working Plan: Written brief. Fee Paid: $5,000.00 Period: March 1984-June 1985 Excess Over Quote: Nil 3. Purpose: Assist in the management of the Australian Exhibition. Working Plan: Written brief. Fee Paid: $14,000.00 Period: March 1985-May 1987 Excess Over Quote: Nil Don Stephens Art Studio Pty Ltd Purpose: To design proposed Bicentennial Air Show symbol. Working Plan: Written brief. Fee Paid: $218.00 Period: July 1985 Excess Over Quote: Nil N. Dudgeon Purpose: Prepare detailed proposal outlining content, management and costs of staging a Military Tattoo. Working Plan: Written brief. Fee Paid: $6,298.23 Period: May 1983-September 1983 Excess Over Quote: Nil E.R.U. Research Services Purpose: Prepare feasibility studies covering transport modes and market research for the Australian Exhibition. Working Plan: Written brief. Fee Paid: $41,450.00 Period: November 1983-January 1984 Excess Over Quote: Nil Ethnic Communications Pty Ltd Purpose: Provide translation services. Working Plan: As required. Fee Paid: $556.00 Period: July 1985 Excess Over Quote: Nil E. Fell Purpose: Advise on methods of maximising women's involvement in the Bicentenary. Working Plan: Written brief. Fee Paid: $1,700.00 Period: December 1983-November 1984 Excess Over Quote: Nil Film Australia Purpose: To direct production of Tall Ships film. Working Plan: Verbal and written instructions. Fee Paid: $1,375.68 Period: June 1984 Excess Over Quote: Nil R. J. Fitzpatrick 1. Purpose: To advise on international aspects of Arts and Entertainment program and other elements of the Bicentennial program. Working Plan: Written brief. Fee Paid: $12,816.69 Period: December 1984 Excess Over Quote: Nil 2. Purpose: To advise on National Arts and Entertainment Program and act as the Authority's North American representative. Working Plan: Written brief. Fee Paid: $25,292.28 Period: March 1985-February 1986 Excess Over Quote: Nil Fitzwater Productions Purpose: Preparation of feasibility study, brief and budget ``Presentation 88''. Working Plan: Verbal instructions. Fee Paid: $500.00 Period: April 1985 Excess Over Quote: Nil Forcast Pty. Ltd. Purpose: To advise on Film and Television program. Working Plan: Written brief. Fee Paid: $2,600.00 Period: March-May 1983 Excess Over Quote: Nil Fynley Pty. Ltd. Purpose: Preparation of feasibility report of an exhibition proposal on the theme ``The Australian Search for Spirituality''. Working Plan: Written brief. Fee Paid: $600.00 Period: February 1985 Excess Over Quote: Nil C. Gardner Purpose: Copy written for brochure ``Celebrating Australia''. Working Plan: As required. Fee Paid: $160.00 Period: July 1984 Excess Over Quote: Nil R. Gibson 1. Purpose: Submit ideas and drawings for proposed travelling exhibition. Working Plan: Written instructions. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil 2. Purpose: Stage II in development of designs for travelling exhibition. Working Plan: Written brief. Fee Paid: $5,275.80 Period: March 1984-June 1984 Excess Over Quote: Nil P. Gillett Purpose: Preparation of Bicentennial Program Chart. Working Plan: As instructed. Fee Paid: $275.00 Period: May 1985 Excess Over Quote: Nil W. Hind Purpose: Assess film and television proposals for possible funding. Working Plan: Written brief. Fee Paid: $2,625.00 Period: March-April 1984 Excess Over Quote: Nil Historical Consultants Purpose: To identify, record and help conserve privately held paper based heritage records. Working Plan: Written brief. Fee Paid: $10,000.00 Period: July 1985-December 1985 Excess Over Quote: Nil H Rosemary Hooke Purpose: Provide advice on Bicentennial Teachers' Manual. Working Plan: Written brief. Fee Paid: $600.00 Period: June 1983 Excess Over Quote: Nil Horan Wall & Walker Purpose: To report on development of computerised mailing list. Working Plan: Briefing by senior staff. Fee Paid: $6,231.25 Period: April 1985-July 1985 Excess Over Quote: $1,231.25 R S F Hughes Purpose: To advise on proposed Exhibitions program. Working Plan: Written brief. Fee Paid: $10,364.75 Period: 15- 20 July 1985 Excess Over Quote: Nil A. Hutton Purpose: Advise on elements of film program for Travelling Film Retrospective. Working Plan: Written brief. Fee Paid: $7,819.23 Period: October 1984-February 1985 Excess Over Quote: Nil IFD Pty Ltd Purpose: Prepare a submission on a proposed Futures Project. Working Plan: Written brief. Fee Paid: $70,000.00 Period: July-October 1984 Excess Over Quote: Nil Inscan Design Pty Ltd Purpose: Interior design work for National Office. Working Plan: Written briefs. Fee Paid: $18,883.25 Period: August 1983-November 1985 Excess Over Quote: Nil International Cultural Corporation of Australia 1. Purpose: Advise on proposed Exhibitions program. Working Plan: Written brief. Fee Paid: $14,885.00 Period: August 1983-June 1984 Excess Over Quote: Nil 2. Purpose: To conduct feasibility studies on proposed Exhibitions program. Working Plan: Written brief. Fee Paid: $100,000.00 Period: April-September 1985 Excess Over Quote: Nil I. Irwin Purpose: To assist in conducting a seminar to discuss ideas for the Bicentennial program for people with disabilities and to report results of that seminar. Working Plan: Written instructions. Fee Paid: $210.00 Period: January 1985 Excess Over Quote: Nil D. Jackson 1. Purpose: Submit ideas and drawings for proposed travelling exhibitions. Working Plan: Written instructions. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil 2. Purpose: Stage II in development of designs for the travelling exhibition. Working Plan: Written brief. Fee Paid: $5,667.68 Period: March 1984-June 1984 Excess Over Quote: Nil James Murdoch & Associates Purpose: Assist in development of National Music, Theatre and Dance Commissionings Program of Australian artists etc. Working Plan: Written brief. Fee Paid: $2,236.16 Period: May 1985-July 1985 Excess Over Quote: Nil M. Kelly Purpose: Advise on publications program. Working Plan: Written brief. Fee Paid: $120.00 Period: September 1984 Excess Over Quote: Nil Kerrie Lee Purpose: Copy writer/Public Relations. Working Plan: As required. Fee Paid: $8,190.00 Period: July 1983-March 1985 Excess Over Quote: Nil J. Larkins & D. Sargent Purpose: Provide editorial/media relations services. Working Plan: Written briefs. Fee Paid: $1,750.00. Period: December 1984-March 1985 Excess Over Quote: Nil. P. Latos-Valier Purpose: To examine the feasibility of a Regional Touring Exhibition Working Plan: Written brief. Fee Paid: $5,868.29 Period of Consultancy: May-December 1985 Excess Over Quote: Nil. Geoff Law Purpose: Prepare article for publication concerning environmental aspects of Bicentenary. Working Plan: Written brief. Fee Paid: $400.00 Period: August 1984 Excess Over Quote: Nil. J. Mackinolty Purpose: Advise on development of Bicentennial re-enactment kits. Working Plan: Written brief. Fee Paid: $1,360.00 Period: April 1983 Excess Over Quote: Nil. Mahlab Hobbs Special Project Management Pty Ltd. Purpose: Advise on aspects of Women's Program. Working Plan: Written brief. Fee Paid: $20,441.75 plus travel fee $1,539.10. Period: March-April 1985. Excess Over Quote: Nil. Mary Davy Design Purpose: Prepare a complete issue of the June 1985 Bicentenary 88 Newsletter. Working Plan: Written brief. Fee Paid: $4,344.00 Period: March 1985-August 1985 Excess Over Quote: Nil. Massingham Research 1. Purpose: Undertake feasibility studies on attitudes of school children towards potential Bicentenary mementos. Working Plan: Written briefs. Fee Paid: $13,675.00 Period: November 1983 Excess Over Quote: Nil. 2. Purpose: Conduct further feasibility studies evaluating consumer's attitudes towards national medallion program. Working Plan: Written brief. Fee Paid: $15,000.00 Period: March 1985 Excess Over Quote: Nil. J. McCormick Purpose: Submit ideas and drawings for proposed travelling exhibitions. Working Plan: Written instructions. Fee Paid: $1,000.00 Period: December 1983 Excess Over Quote: Nil. W. Mellor Purpose: To compile a market research brief for proposed Australian Exhibition. Working Plan: Written instructions. Fee Paid: $45.00 Period: September 1983 Excess Over Quote: Nil. MDA Direct Pty Ltd Purpose: Provide marketing services. Working Plan: Written brief. Fee Paid: $9,248.00 Period: March-April 1983 Excess Over Quote: Nil. D. Modjeska Purpose: Advise on proposed Women's publications. Working Plan: Written brief. Fee Paid: $270.00 Period: September 1984-February 1985 Excess Over Quote: Nil. C. Mula Purpose: Advise on Historic Records Project. Working Plan: Written brief. Fee Paid: $7,514.00 Period: March-October 1984 Excess Over Quote: Nil. Bernice Murphy Purpose: Assist in the Development of National Commissionings Program of Australian artists, galleries, museums etc. Working Plan: Written brief. Fee Paid: $2,000.00 Period: May-July 1985 Excess Over Quote: Nil. National Film & Sound Archive Purpose: Prepare detailed feasibility study on the Travelling Film Retrospective. Working Plan: Written brief. Fee Paid: $30,000.00 Period: January 1985-September 1985 Excess Over Quote: Nil. J. North Purpose: Copy Writer/Public Relations Working Plan: As required. Fee Paid: $529.20 Period: February 1984 Excess Over Quote: Nil. D & J O'Brien Purpose: Video presentation for Japanese. Re Sponsorship opportunities. Working Plan: Written brief. Fee Paid: $535.40 Period: September 1985 Excess Over Quote: Nil P A Design Purpose: To design display for Australian Bicentennial Exhibition. Working Plan: Written brief. Fee Paid: $1,795.60 Period: June-July 1985 Excess Over Quote: Nil Paladin Scripts Pty Ltd Purpose: Editorial services. Working Plan: As required. Fee Paid: $750.00 Period: June-July 1984 Excess Over Quote: Nil Porter Eames & Associates Purpose: Provide Public Relations services. Working Plan: Written brief. Fee Paid: $7,089.45 Period: April 1985 to September 1985 Excess Over Quote: Nil R Pozzer Purpose: Advise on aspects of multicultural program. Working Plan: Written brief. Fee Paid: $13,149.78 Period: April 1985-March 1986 Excess Over Quote: Nil Proplan Pty Ltd Purpose: Provide planning, programming and reporting services. Working Plan: Written brief. Fee Paid: $40,000.00 Period: December 1984-December 1985 Excess Over Quote: Nil PYA Pty Ltd Purpose: Advise on proposed ``Foundation '88'' project and Sponsorship Campaign. Working Plan: Written instructions. Fee Paid: $4,248.20 Period: May 1984-July 1985 Excess Over Quote: Nil Remote Area Media Purpose: To produce Aboriginal audio visual for remotely located communities. Working Plan: Written brief. Fee Paid: $3,000.00 Period: August 1985 Excess Over Quote: Nil Jill Robb Purpose: Advise on implementation of film & TV program. Working Plan: Written brief. Fee Paid: $39,459.15 Period: August 1984-July 1986 Excess Over Quote: Nil Robin Wade Design Purpose: To design a display for Australian Bicentennial Exhibition. Working Plan: Written brief. Fee Paid: $1,500.00 Period: June 1985-July 1985 Excess Over Quote: Nil Roy Morgan Research 1. Purpose: Undertake awareness survey. Working Plan: Written instructions. Fee Paid: $6,790.00 Period: February 1984 Excess Over Quote: Nil 2. Purpose: Conduct omnibus survey. Working Plan: Written instructions. Fee Paid: $7,469.00 Period: February 1985 Excess Over Quote: Nil 3. Purpose: Undertake quantitative survey for Medallions Program. Working Plan: Written brief. Fee Paid: $7,720.00 Period of consultancy: May-June 1985 Excess Over Quote: Nil Sail Training Association U.K. Purpose: Advise on proposed Tall Ships project. Working Plan: Written brief. Fee Paid: $4,191.92 Period: October 1984 Excess Over Quote: Nil C. F. Salo 1. Purpose: Provide graphic design services. Working Plan: Written instructions. Fee Paid: $700.00 Period: December 1983 Excess Over Quote: Nil 2. Purpose: Provide graphic design services. Working Plan: Written instructions. Fee Paid: $620.00 Period: July 1984 Excess Over Quote: Nil H. M. Saxby Purpose: Advise on publications program. Working Plan: Written brief. Fee Paid: $120.00 Period: September 1984 Excess Over Quote: Nil W. D. Scott 1. Purpose: Conduct organisation review. Working Plan: Written brief. Fee Paid: $17,746.00 Period: December 1983-March 1984 Excess Over Quote: $2,784.00 2. Purpose: Advise on management aspects of proposed touring Australian Exhibition. Working Plan: Written brief. Fee Paid: $12,900.00 Period: November 1983-January 1984 Excess Over Quote: Nil R. Sharman Purpose: Editing services Working Plan: As required Fee Paid: $220.40 Period: May 1984-June 1984 Excess Over Quote: Nil J. Shortis Purpose: Advise on proposed Outback Children's Festival Working Plan: Written brief Fee Paid: $525.77 Period: February-July 1985 Excess Over Quote: Nil Studio 84 Purpose: Artistic services Working Plan: As required Fee Paid: $1,200.00 Period: February 1985 Excess Over Quote: Nil Chris Sullivan Purpose: To undertake a feasibility study of a National Folk Program Working Plan: Written brief Fee Paid: $3,125.23 Period of Consultancy: July-October 1985 Excess Over Quote: Nil Telecom Australia Purpose: Advise on proposed PABX installation Working Plan: Written brief Fee Paid: $1,200.00 Period: October 1984 Excess Over Quote: Nil Thompson & Butel Purpose: Advise on publications program procedures Working Plan: Written briefs Fee Paid: $6,446.85 Period: May-July 1984 Excess Over Quote: Nil Tony Dunford Studios Purpose: To provide illustrations of Bicentennial Air Show Site Working Plan: As required Fee Paid: $1,190.00 Period of Consultancy: June-July 1985 Excess Over Quote: Nil Understudies Pty Ltd 1. Purpose: Advise on Youth Festival Working Plan: Written briefs Fee Paid: $2,000.00 Period: August 1983 Excess Over Quote: Nil 2. Purpose: Advise on Womens Festival Programs Working Plan: Written briefs Fee Paid: $350.00 Period: November 1983 Excess Over Quote: Nil Virginia Braden Arts Management Purpose: Prepare proposal for Bicentennial Lecture Series (Forum '88) Working Plan: Written brief Fee Paid: $600.00 Period: November 1983 Excess Over Quote: Nil Warwick Freeman Productions Purpose: Advise on opening and closing ceremonies Working Plan: Written brief Fee Paid: $1,700.00 Period: December 1983 Excess Over Quote: Nil Richard White Purpose: Advise on development of theme for Australian Exhibition Working Plan: As instructed Fee Paid: $1,330.00 Period: March 1985 Excess Over Quote: Nil Consultants employed prior to March 1983 and retained since March 1983: Goodwin Design Purpose: Provide graphic design services as required Working Plan: Various Fee Paid: March 1983-October 1985 $141,641.48 Period: Prior to March 1983 to date Excess Over Quote: Not applicable Logica Pty Ltd Purpose: To advise on computer and word processing matters Working Plan: Written brief Fee Paid: March 1983-October 1985 $8,168.00 Period: Prior to March 1983 to date Excess Over Quote: Nil Meridian Advertising (Australia) Pty Ltd Purpose: Provide advertising agency services, primarily to conceive, develop and produce audio visual, brochure, poster and community kit materials forming part of the Authority's publicity program Working Plan: Various Fee Paid: March 1983-October 1985 $261,791.51 Period: Prior to March 1983 to date Excess Over Quote: Not applicable Noble Lowndes International Purpose: To administer superannuation scheme. Working Plan: Written instruction and subsequent liaison. Fee Paid: March 1983, October 1985 $33,778.00. Period: Prior to March 1983 to date. Excess Over Quote: Nil. Oaceen Pty Ltd Purpose: Design software for computer Working Plan: Written brief. Fee Paid: March 1983, October 1985 $127,462.40. Period: Prior to March 1983 to date. Excess Over Quote: Nil. Sir David Stevenson Purpose: To advise on proposed Tall Ships program. Working Plan: As required. Fee Paid: March 1983-June 1984 $5,159.21 Period: Prior to March 1983 to June 1984. Excess Over Quote: Nil. Consultants appointed but not paid any fees as at 11.10.85: J. Drummond Purpose: Advise on development of proposed Arts & Entertainment Program. Working Plan: Written brief. Fee Paid: Nil (Fee quoted $10,000 plus expenses). Period: April 1985-March 1986. Excess Over Quote: Not applicable. (Question No. 813) Senator Mason asked the Minister for Education, upon notice, on 11 February 1986: (1) How many statutory authorities currently exist under the auspices of the Minister's Department. (2) What are the names of these authorities. (3) What appeal mechanisms, if any, exist for the general public to lodge a complaint against these authorities. (4) If it is proved that any member of staff of any of these authorities is guilty of incompetence, what action, if any, could be taken by a member of the public to sue the authority for compensation; if it is not possible to sue the authority, why is that the case. (5) How many cases concerning these authorities are currently before the Administrative Appeals Tribunal, and what is the delay at present between the listing of a case and its hearing before the Tribunal. (6) If any statutory authority under the Minister's Department cannot be sued, will the Minister consider amending the relevant legislation to make this possible. Senator Ryan —The answer to the honourable senator's question is as follows: (1) Eight. (2) (i) Commonwealth Tertiary Education Commission (CTEC) (ii) Commonwealth Schools Commission (CSC) (iii) ACT Apprenticeship Board (iv) The Student Assistance Review Tribunal (SART) (v) Curriculum Development Council (CDC) (vi) Australian National University (ANU) (vii) Canberra College of Advanced Education (CCAE) (viii) Australian Maritime College (AMC) (3) The normal provisions of the Administrative Decisions (Judicial Review) and the Ombudsman Act are available. In the case of the Student Assistance Review Tribunal there is a right of review by the Administrative Appeals Tribunal. There is a right of appeal to the Court of Petty Sessions from certain orders of the ACT Apprenticeship Board. (4) The Attorney-General's Department has advised that, unless an authority is statutorily protected, it is liable for the torts of its servants committed in the course of their duty. Where employees, acting in the course of their duty are incompetent and, as a consequence, loss is suffered by a member of the public, it will commonly be found that the act or omission which was seen as incompetent was also tortious. For example, incompetent driving would probably be tortious. In the absence of a denial of liability the negligent giving of erroneous advice is tortious where the advice is given by a person having a duty of care to one who suffers foreseeable damage as a result of reasonably relying on that advice. Many other forms of incompetence would also be tortious, but each case would need to be considered on its own facts. None of the authorities listed in answer to Part (2) of this question is statutorily protected against general liability in tort. (5) There are 4 appeals before the AAT against decisions by the SART. The timing of hearings is a matter for the AAT. (6) Not applicable. (Question No. 816) Senator Mason asked the Minister representing the Minister for Primary Industry, upon notice, on 11 February 1986: (1) How many statutory authorities currently exist under the auspices of the Minister's Department? (2) What are the names of these authorities? (3) What appeal mechanisms, if any, exist for the general public to lodge a complaint against these authorities? (4) If it is proved that any member of staff of any of these authorities is guilty of incompetence, what action, if any, could be taken by a member of the public to sue the authority for compensation; if it is not possible to sue the authority, why is that the case? (5) How many cases concerning these authorities are currently before the Administrative Appeals Tribunal, and what is the delay at present between the listing of a case and its hearing before the Tribunal? (6) If any statutory authority under the Minister's Department cannot be sued, will the Minister consider amending the relevant legislation to make this possible. Senator Walsh —The Minister for Primary Industry has provided the following answer to the honourable senator's question: (1) and (2) I have interpreted the question as relating to such authorities within my portfolio as are incorporated by statute. There are twelve of these: Australian Apple and Pear Corporation Australian Canned Fruits Corporation Australian Dairy Corporation Australian Dried Fruits Corporation Australian Wool Corporation Australian Honey Board Australian Meat and Livestock Corporation Australian Meat and Livestock Research and Development Corporation Australian Tobacco Board Australian Wheat Board Australian Wine and Brandy Corporation Pork Promotion Committee (3) and (4) The Acts establishing these authorities as incorporated bodies specifically provide that the authority can sue and be sued in its corporate name. None of them is statutorily protected against general liability in tort. Further, where it has been regarded as desirable certain decisions of these authorities have been made reviewable by the Administrative Appeals Tribunal. The provisions of the Administrative Decisions (Judicial Review) Act and of the Ombudsman Act would also apply, in an appropriate case, to the decisions or actions of these authorities affecting the interests of a member of the public. (5) Two. Any question of delay between the listing of a Tribunal case and its hearing is a matter properly directed to the Attorney-General. (6) See answer to (3) and (4) above. Aside from the incorporated authorities dealt with above, there are a number of bodies within my portfolio responsibility which are established by statutes but are not incorporated. These bodies cannot therefore sue or be sued as such, although in a proper case the provisions of the Administrative Decisions (Judicial Review) Act and Ombudsman Act would apply to their activities. They are bodies which either operate in specialised fields (e.g. Research Councils servicing the different rural industries) or they have narrowly defined functions (e.g. Selection Committees which recommend persons for various official appointments). The incorporation of such bodies is not regarded as necessary or appropriate. (Question No. 831) Senator Mason asked the Minister representing the Minister for Local Government and Administrative Services, upon notice, on 12 February 1986: (1) How many statutory authorities currently exist under the auspices of the Minister's Department. (2) What are the names of these authorities. (3) What appeal mechanisms, if any, exist for the general public to lodge a complaint against these authorities. (4) If it is proved that any member of staff of any of these authorities is guilty of incompetence, what action, if any, could be taken by a member of the public to sue the authority for compensation; if it is not possible to sue the authority, why is that the case. (5) How many cases concerning these authorities are currently before the Administrative Appeals Tribunal, and what is the delay at present between the listing of a case and its hearing before the Tribunal. (6) If any statutory authority under the Minister's Department cannot be sued, will the Minister consider amending the relevant legislation to make this possible. Senator Gietzelt —The Minister for Local Government and Administrative Services has provided the following answer to the honourable senator's question: (1) One. (2) Albury-Wodonga Development Corporation. (3) The Albury-Wodonga Development Act 1973, as amended, provides that the Corporation may be sued in its corporate name. decisions made by the Corporation in relation to formal town planning applications are subject to appeal to the relevant body under the NSW Environmental Planning and Assessment Act 1979, as amended, and the Victorian Town and Country Planning Act 1961, as amended. the Administrative Decisions (Judicial Review) Act 1977, as amended, provides for review through the courts of decisions made under Commonwealth legislation. (4) The Attorney-General's Department has advised that, unless an authority is statutorily protected, it is liable for the torts of its servants committed in the course of their duty. Where employees, acting in the course of their duty are incompetent and, as a consequence, loss is suffered by a member of the public, it will commonly be found that the act or omission which was seen as incompetent was also tortious. For example, incompetent driving would probably be tortious. In the absence of a denial of liability the negligent giving of erroneous advice is tortious where the advice is given by a person having a duty of care to one who suffers foreseeable damage as a result of reasonably relying on that advice. Many other forms of incompetence would also be tortious, but each case would need to be considered on its own facts. The Albury-Wodonga Development Corporation is not statutorily protected against general liability in tort. (5) Nil. (6) N/A (Question No. 900) Senator Maguire asked the Minister representing the Minister for Social Security, upon notice, on 14 February 1986: (1) Is the place of birth of persons receiving unemployment benefits recorded by the Department of Social Security; if so, what were the numbers of persons born in- (a) New Zealand; (b) United Kingdom; (c) Greece; (d) Italy; and (e) Yugoslavia, receiving unemployment benefits according to the latest information. (2) What was the percentage represented by each of the categories in (1) above of the total number of persons receiving unemployment benefits. (3) What residential criteria apply before persons can receive unemployment benefits. (4) Are the general residential criteria less restrictive for persons arriving in Australia from any particular countries. Senator Grimes —The Minister for Social Security has provided the following answer to the honourable senator's question: (1) Yes. The table below shows the number of persons receiving unemployment benefit at 8 November 1985, who were born in- (a) New Zealand...11,035 (b) United Kingdom/Ireland...36,457 (c) Greece... 5,400 (d) Italy... 5,883 (e) Yugoslavia... 6,116 (2) The percentage represented by each of the categories in (1) of total unemployment benefit recipients are- (a) New Zealand... 2.2 (b) United Kingdom/Ireland... 7.1 (c) Greece... 1.1 (d) Italy... 1.2 (e) Yugoslavia... 1.2 (3) A claimant for unemployment benefit must have resided in Australia for not less than 12 months immediately prior to lodging his/her claim, unless the delegate of the Secretary of the Department of Social Security is satisfied that he/she is likely to remain permanently in Australia. (4) Under the reciprocal agreements Australia has with the United Kingdom and New Zealand, residence in one of those countries can be treated as residence in Australia. Thus, for people coming to Australia tem- porarily (for less than 12 months) from these countries, unemployment benefit may be payable by virtue of the agreements. Of course other unemployment benefit criteria, such as availability for work, must be met. A person merely visiting Australia from the UK or NZ would not generally be able to meet these other criteria. There is no provision which would enable payment of unemployment benefit to people from Italy who are temporarily in Australia in the proposed Reciprocal Agreement with Italy. Australia is seeking to rescind these provisions in its agreements with the UK and New Zealand. (Question No. 910) Senator Jones asked the Minister representing the Minister for Primary Industry, upon notice, on 18 February 1986: (1) How serious is the wheat price situation, given predictions of a forthcoming collapse in world wheat prices by as much as 20 per cent by the end of 1986, and what are the reasons for the impending collapse. (2) Are there any measures the Australian Government could take at this stage to head off this potential disaster, and protect the interest of Australian growers. Senator Walsh —The Minister for Primary Industry has provided the following answer to the honourable senator's question: (1) The Government views with serious concern the expected significant decline in world wheat prices. The expectations of reduced prices are principally an outcome of provisions of the US Food Security Act 1985 (the US Farm Bill), in particular, the announced reduction of 27% in the loan rate from $3.30 per bushel for the year from 1 June 1985 to $2.40 for the year from 1 June 1986. The reduced level of the loan rate combined with other provisions of the US Farm Bill increases the amount of US wheat for direct sale, thus lowering prices in an over supplied world market. (2) There is no quick or easy solution to the problem of depressed grain prices. Longer term recovery depends largely on decisions by the US Government and the European Community (EC) which between them account for almost 50 per cent of world export trade in wheat. Production and stock levels have increased significantly in both regions in recent years in response to domestic subsidy programs. World prices will continue to be affected while US and EC producers are insulated from market forces. Of most immediate concern, however, are those elements of US and EC agricultural policies which distort world trade through the subsidisation of exports. The Government is committed to pressing for urgent and aggressive reform of the EC's Common Agricultural Policy. In this regard, the Government strongly supports the US in its efforts to address the shortcomings of world agricultural trade in the forthcoming multilateral trade negotiations. The Government has serious reservations, however, concerning the US Export Enhancement Program (EEP) in particular, by which the US proposes to counter EC export subsidies. There is a danger that countries like Australia which do not subsidise production or exports will suffer most from US and EC trade subsidies. The Government's views on agricultural protectionism have been made clear in various international forums and at various times by the Prime Minister, the Minister for Trade Mr Dawkins and myself. Recently, Mr Dawkins reported to Parliament on a visit to Europe and the US. In regard to the US Farm Bill he conveyed Australia's concerns in discussions with senior US Cabinet Ministers, members of Congress and the Administration, obtaining an encouraging degree of support and understanding for Australia's position. Subsequent amendments to the legislation, which include a reduced level of mandatory funding of EEP, represent some improvement from Australia's viewpoint. As part of a visit to the US and Europe in April, the Prime Minister has made arrangements to meet with President Reagan, Prime Minister Thatcher and Mr Delors the European Commission President, to discuss agricultural trade issues and implications for Australian agricultural exports. (Question No. 953) Senator Bolkus asked the Minister representing the Minister for Foreign Affairs, upon notice, on 11 March 1986: Were 12 Australian peace marchers recently denied entry to Honduras and El Salvador as members of a peace march through Central America; if so, what was the reason for this denial of entry. Senator Gareth Evans —The Minister for Foreign Affairs has provided the following answer to the honourable senator's question: The Department of Foreign Affairs was advised in October 1985 that 13 Australians would take part in an international peace march from Panama City to Mexico City in December 1985 and January 1986. The marchers left Panama City on 10 December. Following harassment of the marchers by right-wing groups in Costa Rica, and their welcome by the Government of Nicaragua, the governments of Honduras and El Salvador announced in late December that the marchers would be denied entry into both countries. The Honduran Government referred only to ``unspecified problems'' in explaining its decision. The Salvadoran Government was similarly reticent in explaining its action. However, Government officials in both countries were reported to have claimed that the marchers were ``leftists'' on a propaganda march for Nicaragua. I understand that after failing to enter El Salvador, some of the Australian participants flew from Managua to Guatemala City and then travelled to Mexico City, while others remained in Nicaragua for some time before returning to Australia. (Question No. 967) Senator Reynolds asked the Minister representing the Minister for Immigration and Ethnic Affairs, upon notice, on 14 March 1986: (1) What is the determined policy of the Department of Immigration and Ethnic Affairs in relation to de facto relationships. (2) How does this policy affect interpretation of status for immigration purposes. Senator Grimes —The Minister for Immigration and Ethnic Affairs has provided the following answer to the honourable senator's question: (1) and (2) As a matter of policy genuine heterosexual de facto relationships are treated as if the partners are formally married. While this policy applies for migration purposes, there is a difference in relation to Change of Status. Section 6a of the Migration Act prohibits the grant of resident status unless the applicant satisfies one of a number of qualifications. One of these (Section 6a (1) (b)) is the spouse of an Australian citizen or resident. De facto spouses cannot qualify for consideration under this Sub-Section. However they qualify for consideration under Sub-Section 6a (1) (e) ``strong compassionate or humanitarian grounds''. To establish whether the relationship is genuine, de facto spouses are required to demonstrate a current, lasting and exclusive relationship containing elements found in marital relationships such as public recognition of the couple as husband and wife, shared accommodation, income or financial assets. (Question No. 974) Senator Reynolds asked the Minister representing the Minister for Housing and Construction, upon notice, on 14 March 1986: (1) What is the determined policy of the Department in relation to de facto relationships. (2) How is this policy implemented in departmental assessment of individual claims for benefits. Senator Ryan —The Minister for Housing and Construction has provided the following answer to the honourable senator's question: (1) and (2) Assistance provided under the First Home Owners Scheme is made available by the Department pursuant to the provisions of the First Home Owners Act 1983. The Act provides for identical treatment of legally married persons and persons living together on a bona fide domestic basis although not legally married. The Federal Government also provides funds to the States and the Northern Territory for public housing through the Commonwealth-State Housing Agreement (CSHA). The States and Northern Territory use these funds together with their own funds to provide public rental housing and home purchase assistance for low-income earners. The States and Northern Territory are responsible for determining eligibility criteria for obtaining assistance. In determining eligibility criteria, States must have regard to the detailed principles covering the allocation of assistance which are outlined in the 1984 CSHA. One of these principles states that ``housing assistance provided under this agreement will be available to all sections of the community irrespective of age, sex, marital status, race, religion, disability or life situation.'' (Question No. 987) Senator Kilgariff asked the Minister representing the Minister for Arts, Heritage and Environment, upon notice, on 19 March 1986: (1) Is the Minister for Arts, Heritage and Environment now in a position to supply the information to my questions without notice in the Senate on 17 and 20 February 1986 concerning Kakadu National Park in the Northern Territory, and the Gazettal of stage two of the park as part of stage one. (2) If this information is not yet available, when will the Minister, in view of the potentially major implications of the Gazettal for the future development of tourist facilities and mining within the park, and indeed the considerable effect on the future viability of the Northern Territory, and the development of this particular area of the Territory, be in a position to make the information available. Senator Ryan —The Minister for Arts, Heritage and Environment has provided the following answer to the honourable senator's question: (1) and (2) Yes. In accepting the recommendation of the Ranger Uranium Environmental Inquiry that a major national park be established in the Alligator Rivers Region, the previous Government accepted that it would need to be proclaimed in stages. Stage 1 of Kakadu National Park was proclaimed on 5 April 1979. When the present Government moved to proclaim Stage 2, technical legal reasons required that it be proclaimed as a separate national park rather than be incorporated in the existing park, as had been the intention all along. Consequently Kakadu (Stage 2) National Park was proclaimed on 28 February 1984. Subsequent amendments to the National Parks and Wildlife Conservation Act, which received Royal Assent on 2 September 1985, enabled Stage 2 to be incorporated into Kakadu National Park. The necessary proclamation was gazetted on 20 December 1985. There was no addition to the area of national park or change in status of the areas concerned. Amalgamation of the two areas provides administrative advantages, allowing the whole park to be operated under the name `Kakadu National Park' and under one plan of management and achieves the Government's long term intention for the area. Conditions applying to any operations for the recovery of minerals were unchanged by the amalgamation of the two areas. The article by Errol Simper in the `Australian' of 19 February under the heading `Addition to park locks up $40 bn in minerals' is inaccurate and misleading. Since the status of the land has remained unchanged by the amalgamation, there was no need to advise Aboriginal owners and the Northern Territory Government formally. There was also no need to seek legal opinion. However, the proposed amalgamation was brought to public notice through the Parliamentary debate when the legislative amendments were considered in both Houses. No plan of management currently applies to the former Stage 2 of Kakadu National Park. The Australian National Parks and Wildlife Service has advised that a plan of management covering the whole of Kakadu National Park will be released for public comment later this year. The plan is expected to take account of tourism needs including accommodation. The incorporation of Stage 2 in Kakadu National Park does not alter implications for the development of tourist facilities and future mining developments. The former Stage 2 area is not inscribed on the World Heritage List. At the time that Stage 1 of Kakadu National Park was accepted for inscription on the World Heritage List, the World Heritage Committee noted Australia's intention to proclaim additional areas in the Alligator Rivers Region as part of the National Park. The Committee recommended that such additional areas should also be included in the World Heritage Listing. The possibility of now adding the former Stage 2 area to the List is presently under consideration. (Question No. 992) Senator Reid asked the Minister representing the Minister for Social Security, upon notice, on 20 March 1986: (1) For what purpose has the Department of Social Security rented 158 square metres of building at 71 Dundas Court, Phillip. (2) Have the premises been leased through the Department of Local Government and Administrative Services since December 1984 at the request of the Department of Social Security at a rent of $16,895.30 per annum. Senator Grimes —The Minister for Social Security has provided the following answer to the honourable senator's question: (1) The Department of Local Government and Administrative Services has leased 158 square metres of space at 71 Dundas Court, Phillip to provide accommodation for the Audio/Visual Unit of the Department of Social Security. The Audio/Visual Unit produces staff training videos for distribution throughout the Department's network of regional offices across Australia. (2) Yes. Senator Grimes —On 19 February 1986 (Hansard, pages 597-8) Senator Haines asked me, as Minister representing the Minister for Health, a question without notice concerning the lack of an answer to an earlier question she asked of Senator Walsh during the second reading debate on the Health Legislation Amendment Bill 1985 on 30 May 1985 in relation to the need for friendly societies that provide ancillary benefits only, to be registered under the National Health Act 1953. Senator Walsh was representing the Minister for Health at the time during my absence. The Minister for Health has provided the following information: I note that in response to a follow-up question on 30 May 1985 (Hansard, page 2883) by Senator Harradine concerning this matter, Senator Walsh provided the following answer: `Most of the friendly societies are already registered under the National Health Act, but there are a few small ones that are not currently registered. The reason that registration will be required from these very small friendly societies is in order to enforce effectively the community rating principle.' Accordingly, it was considered that the question raised by Senator Haines had been answered. I have received representations from friendly societies concerning the possibility of being granted an exemption from the registration requirements of the National Health Act. However, I have been unable to accede to their requests. Most, if not all, of the benefits being provided by the friendly societies would be identified in the definition of `ancillary health benefit' in sub-section 67 (4) of the Act. Accordingly, any attempt to use the exemption powers contained in the Act would have the effect of excluding a kind of business specifically included in the legislation. In the circumstances, I do not consider that it would be appropriate to attempt to exclude ancillary benefits, as a kind of business, provided by friendly societies, when all other insurers are subject to the legislation. Apart from the discriminatory connotations that would be attached to such an exemption, it would negate the intention of Parliament. If the friendly societies in question do not wish to apply for registration, they could negotiate an agency arrangement with an existing registered organisation to provide ancillary benefits coverage for their members. Those members would, if they have private insurance, be covered already with a registered organisation for hospital benefits purposes. I should add that the main point made by Senator Haines was that friendly societies that provided ancillary benefits on a community rated basis should not need to be registered under the National Health Act. While it is accepted that the main objective of the legislation was to preserve community-rated health insurance it was considered that all organisations that provide health insurance business should be brought under the control of the National Health Act and be on a common footing with all other insurers that conduct such business. Senator Button —On 20 March 1986 (Hansard, page 1344), Senator Elstob asked me a question without notice concerning the result of analyses carried out on the Priority One: Young Australia national phone-in. I undertook to obtain the relevant information. The Minister Assisting the Prime Minister for Youth Affairs has provided the following answer to the honourable senator's question: Over 26,000 calls were made to the Priority One phone-in. Of these, 15,254 provided ideas which will be taken into account in the on-going development of Priority One. The Government will be releasing a full report of the outcome of the National Youth phone-in in the near future.