2nd Parliament · 3rd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– Can the Prime Minister inform the House what subjects are to be discussed at the Imperial Conference in London next year at which Australia is to be represented? I should like to know also if we shall have an opportunity to make known our opinions upon such of those subjects as particularly concern, Australia?
– The Under-Secretary for the Colonies recently mentioned a list of subjects, affecting mail communication, education, and the adjustment of laws relating to a variety of other matters; but there can be no complete programme until the Prime Ministers who have been invited have submitted the lists of subjects which they have been requested to furnish. Until all these lists are published, which will probably not be until shortly before the meeting of the Conference, the full register of subjects which may come before the Conference will not be known. No doubt this Government could lay on the table a list of the questions which its representatives propose to bring forward, and those which the Imperial Government have so far promised to introduce.
– Can the honorable and learned gentleman give the House an assurance that nothing done at the Conference will be binding upon us until this Parliament has had an opportunity to ratify the decisions arrived at?
– It is generally impossible, without legislation, to give effect to the resolutions of a Conference. The only agreement which our representatives could make which need not be referred to Parliament would relate to administration, over which this House, of course, exercises control through the Government. The propositions to be submitted will relate mostly to proposed changes in the law. with! which this Parliament will be free to deal when they are laid before it.
– Seeing, that in discussing any resolution of the Conference this House will be trammelled to some extent by the fact that the representatives of
Australia have already agreed to it, would it not be advisable for the honorable and learned gentleman to allow us an opportunity to debate any proposal which he intends to bring forward, so that he may be supported by our opinions, and may thus be in a position to advocate it with greater freedom and weight?
– That course, except in regard to a very limited number of questions, is impracticable, because the amendments to-be made in any proposition submitted to the Conference cannot be known beforehand.
– It would not be a Conference if each representative went bound to support certain opinions.
– It is impossible for any Parliament to decide at any time what it will determine in the following year, and it is equally impossible for it to deal with proposals which have to go before the representatives of various parts of the Empire, and may be materially amended before they are finally disposed of.
– Is the Prime Minister aware that the Imperial authorities have decided to send a special officer to inspect the process of meat packing in Chicago? Does he not think it advisable to invite the same or another officer to inspect our meat packing arrangements, to enable a comparison to be made?
– I have read a cablegram to the effect mentioned by the honorable member. There can be no objection to such an invitation, though I doubt whether it need be accepted. The Agents-General in London have already called public attention to the inspection laws of their States; and, in reply to a question asked in the House of Commons last week, it was admitted by the Imperial Government that there can be no doubt as to the high character of Australian meat exports. The making of the offer might, however, enhance the’ already high reputation of Australian meat.
– The PostmasterGeneral is reported to have said to a newspaper interviewer that, after the next elections, there will be a stable Government in Australia, and I wish to ask him whether, in making that statement, he desired to reflect upon the present Government.
– I think that if the honorable member will look at the report again he will find that my answer was that, after the next election, there will be a continuation of stable Government.
– I wish to know from, the Minister of Home Affairs what principle, if any, guides Appeal Boards in coming to decisions under the Public Service Act? Are those decisions based on the evidence placed before them, or upon other grounds, and, if so, upon what? I am given to understand that certain decisions have been against the weight of evidence, and I wish to know if that usually happens, and whether, if so, the Minister considers it a desirable state of affairs ?
– I understand that an Appeal Board makes its decision upon the evidence given before it, and that that decision is sent on to the Commissioner for his final recommendation.
– Can an Appeal Board take cognisance of anything not coming before it?
– I understand that a Board’s decision upon an appeal is based on the evidence relating to the question at issue, though there may be placed before it, for comparative purposes, general information in respect to the classification of the Service throughout the States. If the honorable and learned member will give notice of his question, I shall make inquiries, and try to let him have an answer to-morrow.
– The London Daily Mail, of the 21st May, reports that the Sydney Daily Telegraph has computed that, within the last two years, no less than £12,000,000 of Australian money has been shipped out of this country for investment, principally to London, owing to the unrest here. Does the Minister of Trade and Customs know if there is any truth in the statement, or can he give us any information in regard to the matter?
– As the money was not exported through the Customs, I have no special information on the subject. I have seen the statement referred to, and, for reasons which have been given, I do not think it correct. Of course, we know that the newspaper making it does not always tell the truth.
– We have more money than we know what to do with.
– There is more money in Australia now than there ever was before. It is statements like this that injure Australia in the public mind abroad.
.- Speak ing last week on the amendment of the honorable member for Dalley to the motion for the second reading of the Australian Industries Preservation Bill, I quoted from an interview published in the Argus some time ago, showing the flourishing condition of the firm of Thompson and Company, of Castlemaine. I did so to refute the statement that the introduction of the Bill is necessary because Australian industries, particularly of this character, were alleged to be declining for want of more protection. The honorable member for Melbourne Forts, however, interjected that the firm is a free-trade firm, paying its employes1s. per day less than is being paid by other firms in the same industry, and added that it is not prosperous now, but declining. As those interjections made it appear that I was misleading the House, the honorable member for New England wrote to the firm to inquire as to the truth of my statement, and has received, in reply, the following letter: -
Castlemaine, 2nd July, 1906.
We have to thank you for the information contained in yours of the 27th ult. with regard to the interjection made by Mr. Mauger relative to our firm, when Mr.Johnson was speakingon that day. The statements as to wages, made by Mr. Mauger, are entirely false, and with regard to our industry being a declining one, we beg to state that for the past three years we have not been able to cope with the orders that have come to us, and that at the present time we are extending the buildings and putting in additional machinery which will give us an increased output of at least 50 per cent, over what we are now doing.
MINISTERS laid upon the table the. following papers: -
Amendments of Public Service RegulationsNos. 102, 104, 149 - General Division transfers, line repairers, travelling allowances - Statutory Rules, 1906, No. 46.
Naval Forces, financial and allowance regulations,paragraph 49 amended, Statutory Rules, 1906, No’. 45.
asked the Minister of Trade and Customs, upon notice -
What is the total tonnage and value of goods exported to European countries, via Singapore, from Geraldton, Carnarvon, Onslow, and Broome during three years ended 31st December, 1905?
– The answer to the honorable member’s question is as follows : -
asked the Minister representing the Minister of Defence, upon , notice -
– The reply to the honorable and learned member’s questions is as follows : - 1 to 4. No regulations have been prepared which provide for the payment of pensions in time of war to the Commonwealth Naval and Military Forces. The Minister intends to ask the Military Board to go into the whole question of compensation to be paid for injuries received by members of the forces when on duty, with a view to a revision of the regulations if considered advisable.
asked the PostmasterGeneral, upon notice -
Morning Herald, in which the following statements are made : -
It has been a subject of common remark for some time that the post and telegraph messengers at the GeraldtonPost-office are employed for unduly long hours. Indeed, it may be said that the whole of the local staff are more or less overworked. That there is a seriously disjointed system of administration is evident. Only a short time ago the Chamber of Commerce drew attention to the unsatisfactory position existing here. Confirmation has been given in an unexpected manner by two messenger boys giving notice and leaving last week. The youthful employes complained that they were overworked. These boys were seen laden with correspondence for delivery through the town, and, besides, they had to deliver telegrams at all hours and in all directions. The postmaster is now perplexed with the difficulty of letter and telegram deliveries, as he cannot obtain boys to replace those who left? 2.Is it not a fact that numerous complaints have been previously received from Western Australia that the salaries offered to telegraph messengers are insufficient to attract the best class of boys to the service?
– The answers to the honorable member’s questions are as follow: -
asked the PostmasterGeneral, upon notice -
If any arrangement has been come to with the Commissioner for Railways for the State of Queensland, for the payment of commission to stationmasters and others doing post-office work, on the sale of postage stamps, and, if so, what is the nature of that arrangement?
– The answer to the honorable member’s question is as follows : -
The Deputy Postmaster-General, Brisbane, has furnished the following information : - The Railways Department accepted£700 per annum as a fair equivalent in lieu of commission on postage stamps sold by stationmasters and other railway officials doing post-office work. The question of a satisfactory basis of distribution among officials concerned has been under consideration for some time by the Railway Department and this office, and a schedule has now been prepared apportioning amount.
asked the Minister representing the Minister of Defence, upon notice -
Referring to a report in the Argus of the 28th ultimo of an interview with the Minister of Defence, in which the following passage occurs : - “ During my administration they (the Council of Defence) met twice - on the same question. They met to consider Captain Creswell’s report - the one recommending a fleet. Then they met again to consider the report of Colonel Bridges on the same subject. And the two reports were so diametrically opposite that everybody was in a fog.”-
– The answers to the honorable member’s questions are as follow : -
asked the Minister representing the Minister of Defence, upon notice -
With reference to another portion of the same interview reported in the Argus of the 28th ultimo, in which the Minister admits that he may have altered the phraseology of the Report of the Military Board - Will he lay the same in its original form on the table of the Library for the information of honorable members?
– The answer to the honorable member’s question is as follows : -
The report of the Military Board was compiled by the Secretary to the Department (Captain Collins) from memoranda furnished by members of the Board. It was adopted at a meeting of the Board, and was not altered in any way by the Minister.
asked the Minister representing the Minister of Defence, upon notice -
Mr.EWING. - The answers to the honorable and learned member’s questions are as follow : -
– We were told that a fortnight ago. I desire to ask the Minister representing the Minister of Defence, upon notice -
I do not. think Webb saw the officers. You do not think he saw them? - No.
From what you noticed, do you think it a reasonable thing that he should have seen them? - No, I do not think he should have seen them, but the two officers were talking, and he should have been on the alert.
Was his back to the officers when they came from that corner? - Almost full back to them.
Did Senator James Styles, a member of the Board, find as a fact that Webb was, by mistake, wrongfully punished, and deprived of certain privileges which had been granted to him, for having failed to salute Le Mesurier and Hawker, whom he did not see, at about 6 p.m. on the 14th April, 1905?
As Bombardier Webb, in consequence of the loss of such privileges, was compelled to leave the Service, will the Minister reinstate Webb in his former position, with such promotion and extra pay as would in ordinary course have come to him, and also compensation for loss of office through the tyrannical exercise of arbitrary power?
– The answers to the honorable and learned member’s questions are as follow: -
In Committee: Consideration resumed from 27th June (vide page 809) -
Clause 2 -
This Act is divided into Parts as follows : -
Part I. - Preliminary.
Part II. - Repression of Monopolies.
Part III. - Prevention of Dumping.
– I should have thought that the Minister would have made some statement to the Committee in explanation of the complete change which he proposes to make in one portion of the measure. It is proposed to make the Bill an almost entirely new one, and I think it is due to honorable members that the Minister should explain the scope and character of the amendments.
– I do not think that I am called upon to make a detailed statement with regard to the first or second portions of the Bill. The really important amendments relate to what are known as the dumping clauses in the third part of the Bill.
– Not all of them.
– Not all, but the most important relate to the dumping provisions. I do not desire, and I do not intend, at present to say anything with reference to that part of the measure, but shall leave any explanation I may have to make until a later stage. The amendments which it is proposed to make in the second part of the Bill, copies of which have been circulated amongst honorable members, are not very serious. In connexion with the provisions dealing with the repression of monopolies we propose to substitute for the word “ wilfully “ wherever it occurs, the words “ with the design of.”
– Do I understand that the Minister is making a general statement ?
– I do not desire to make a general statement, but I am prepared to say a few words with reference to the first and second parts of the Bill. If, however, any statement that I might make would lead to a general discussion, I shall not proceed any further.I prefer to deal with the amendments clause by clause, but I did not wish to appear rude to the honorable member for Parramatta, who desired that I should make an explanatory statement.
.- In the clause as it stands, Part II. of the Bill relates to the “repression of monopolies.” The discussion that has taken place shows that honorable members are not so anxious to repress monopolies as to regulate them. The Government have shown that they desire to regulate monopolies, and the members of the Labour Party have indicated that whilst they do not consider that regulation will do any good, they expect that the measure will have a regulating effect upon monopolies.
– We say that we do not think regulation will be sufficient.
– The Bill aims at a repression of destructive monopolies.
– Then probably the Prime Minister would be willing to insert the word “destructive” as aqualification of the word “monopolies.” We should amend the clause either in that way, or by providing for the “ regulation of monopolies.” I understand that the Prime
Minister is willing to insert the word “ destructive.”
– I do not propose to accept the suggestion. Honorable members, as they proceed, will find that the clauses speak for themselves.
– I do not wish to quarrel about a word, but it seems to me that we cannot be too careful as to the terms we employ in this measure. The bald expression “ repression of monopolies “ would carry us far beyond the desire that has been expressed by honorable members. I understand that it is desired to regulate monopolies of all kinds, and to repress destructive monopolies. If however, honorable members say that their intentions go further than that, no more need be said.
.- When the second-reading discussion was proceeding, the Minister promised that before the close of the debate he would give honorable members some information as to the dumping that had taken place within the Commonwealth. Personally, I want to know something about the matter, and I should like the Minister to fulfil his promise.
– I gave a good deal of information. ,
– The Minister did not give us any information as to specific cases of dumping.
– The Minister says that he will give us some information now, if it does not lead to a discussion.
– The Minister promised that he would give us the information indicated before the debate on the second reading of the Bill had closed, and I think it is only fair that he should keep faith with us.” The title of the Bill tells us that its object is “ The preservation of Australian industries and the repression of destructive monopolies “ ; whereas, according to the clause now under discussion, Part II. of the Bill relates, to the “ repression of monopolies.” I think that it should be made to read “ repression of destructive monopolies.” I, therefore, move -
That the word “ destructive “ be inserted before the word “Monopolies.”
.- On the face of it, the amendment looks very fair indeed, but under close inspection its aspect becomes altered. What is a monopoly ? The mere fact of a monopoly being non-destructive or beneficent should not place it beyond the scope of the powers of repression given by the Bill. It might be said that despotism should only be repressed when it was destructive. But it is a cardinal principle of democracy that despotism is wrong anyhow.
– That a monopoly is.
– No ; that a despotism is. As for monopolies, we should repress them the more when they are destructive, but we want the power to repress them anyhow. I am very much astounded to learn - because I presume that the honorable member for Wentworth has spoken with the full authority of the party to which he belongs - that he proposes to destroy a monopoly only when it is destructive. Why, it is a cardinal principle of his creed that a monopoly is a very bad thing. It is competition that he wishes to insure.
– What about the honorable and learned member’s Socialism?
– The honorable member forgets that when he is speaking, he does not hold the opinions that he entertains when he is interjecting.
– The honorable and learned member should welcome me as a convert on this occasion, and should vote with me.
– It appears to me that we require the power - not necessarily to exercise it - to repress all monopolies. Let me give an instance of a monopoly which is certainly not a destructive one, but which nevertheless, it might be very desirable to repress. I refer to the Shipping Combine upon the Australian coast. The evidence tendered to the Royal Commission, of which I had the honour to be Chairman, was to the effect that in many instances that combine produced beneficent results. It regulated rates.
– The honorable and learned member knows what other witnesses stated.
– I am saying what others said. I do not care what the honorable member says. The evidence given by a number of witnesses was that the Shipping Combine regulated rates, and that it prevented the fluctuation of prices, and enabled the people to see ahead, and thus to enter into contracts. They asserted that its existence was a very good thing.
– The shippers did not say so.
– The witnesses said so - the members of the Chambers of Commerce in the various States said so.
– Only some of them.
– It is only some honorable members who are objecting to my statement, but apparently they are a little hundred. The Shipping Combine, I repeat, is not a destructive monopoly at all. On the contrary, it is a very good monopoly, and one which is for the benefit of the people of Australia. The late Mr. Grayson emphasised the good points of the combine. He pointed out that formerly a shipper might be charged £5 per ton freight upon goods shipped from Fremantle to Melbourne during one week, and that during the next week the rate might be increased to £7 per ton, or reduced to 27s. 6d. per ton. Thus, shippers never knew where they were. The combine, however, has enabled rates to be struck and maintained for a long time. That in itself is a good thing. It is a good thing that there should be uniformity in many cases. What does the Standard Oil monopoly say ? It says that its existence is a good thing because it regulates rates without levying excessive charges. The evidence given before the Tobacco Commission was to the same effect, namely, that it did not increase the price of tobacco, and that the only benefit conferred was to be found in the lesser number of persons who are employed by the combine in the manufacture and distribution of the article. Therefore, I hold that it would not be wise to insert the word “ destructive “ in the way that is proposed. We require power to repress monopolies, and to regulate them. I hope that the Minister will not consent to emasculate this Bill. The amendments which are already before us are sufficiently formidable. They cover four pages of print, and represent only a fractional part of the proposals that will doubtless be considered by the Committee, and accepted. If the Bill is to be cut about in the way that seems to be threatened, it may as well be put under the table at once. The insertion of the word “ destructive “ would confine the title of the Bill-
– That word is already in the Bill.
– But we can alter that.
– Only by altering, the Bill.
– I propose to alter it by striking out the word “destructive” in the title, whereas the honorable member for Wentworth wishes to amend it by inserting the word “ destructive “ before the word “ monopolies “ in this clause. There are always two ways of doing a thing. I desire to do something in one way, and the honorable member proposes to do it in another. I suggest to the Minister of Trade and Customs that he should not agree to the amendment.
– I do not intend to.
– Then I shall resume my seat at once.
– It is marvellous how quickly things are decided at the table of the House. The Minister has merely to say that he agrees with the final words uttered by the honorable and learned member for West Sydney, and the matter is settled.
– He said it long ago.
– Did he?
– He did.
– I should like to raise another point. I am not at all sure that this Bill is in order. I can find in it no trace of anything which corresponds with its title.
– We can alter the title.
– But we have not altered the title. On the contrary, we have specifically affirmed it.
– We have affirmed very mar.v things in our time.
– I ask that the honorable and learned member should cease his inane chatter. He seems to have a fit upon him to-day. I claim that the body of the Bill should be in conformity with its title. I submit that it does not do so in any particular. We have before us a proposal to put upon the face of the Bill something which is already embodied in its title, and which has already received the affirmation of the Committee.
– The title of the measure has still to be put to the Committee.
– The title has not yet been put.
– The short title of the Bill has been affirmed.
– Clause 1, which relates to the short title of the measure, has already been agreed to. The Committee is now discussing clause 2. But I would point out to the . honorable member for Parramatta that the title of any Bill is the last thing which is dealt with in Committee, the object being to afford honorable members an opportunity - should it be desirable to do so - of so altering it as to make it conform with the general provisions of the measure.
– Has the order of leave been put?
– The deputy leader of the Opposition is upon the wrong track.
– I am glad that the honorable and learned member is taking such a keen interest in this Bill. Personally, I think that the word “ destructive “ ought to be inserted in this clause. Its inclusion would be in keeping with the trend of the debates which have taken place, and with the admissions which have emanated from all quarters of the House. To quote the leader of the Labour Party -
A combination, a corporation is the inevitable tendency of trade all over the world.
Consequently, I think that instead of aiming at the repression of monopolies, which may be harmless - which may in themselves be productive of good results so far as the consumers of Australia are concerned - we ought to limit the operations of this Bill to the repression of monopolies which have proved their destructive character.
– The honorable member wishes to restrict the scope of the measure.
– I do. I think it is very necessary to restrict the scope of the Bill, and I hope that many attempts will be made in that direction before it emerges from Committee.
– To which Bill is the honorable member referring?
– I suppose to the number 2 revise of the measure.
– Why does the honorable member say that?
– I do not understand why the Minister should take up the attitude that he has adopted. He has limited the scope of the Bill in many ways. He has altered its machinery in a most drastic manner, and one which will require to be looked into very carefully at a later stage. Why he should steel his mind against any further suggestions, the adoption of which would tend to improve the Bill, and to limit its scope, I fail to understand. I believe that the more reasonable the limitation’s we impose upon these monopolies, the more firmly will fair and reasonable competition be safeguarded and maintained. Reasonable competition is the best destroyer of monopolies that I know of, or that political economists have discovered.
– We all piously hope for the millennium.
– I am afraid that we cannot follow the leader of the Labour Party in this matter, because he has already declared that he does not think the Bill will accomplish much good.
– The honorable member’s own attitude is even more inexplicable. He pretends to be in favour of the measure, but votes against it.
– The honorable member for Bland has already told us that he regards this Bill merely as a step towards the nationalization of monopolies. Taking the little interest in the measure that he does - regarding it merely as a passing economic phase, and as only one step in the process of evolution which he believes to be inevitable, we cannot accept him as a guide in so shaping the Bill as to make it of real service to the community. He does not believe that it can be so altered as to make it possible for these corporations to remain in private hands, having in view the best interests of the community. We, upon the other hand, take up the position that there is no need for nationalizing these proposals, and, therefore, our aim is to eliminate from the Bill anything which will interfere with the ordinary processes of the co-operative principle as it is applied to the satisfaction of human needs. Consequently, any proposal which aims at the repression of destructive monopolies - that is at monopolies proved to be destructive - is a fair subject for consideration in any Parliament in the world.
– Does the honorable member argue that a co-operative concern is a monopoly ?
– It all depends upon what is its end and aim. There are some co-operative enterprises which are monopolistic in their character - I mean monopolistic in its harmless sense - in that they embrace within their control and operations the whole of the available trade upon which they act. That fact in itself need not necessarily be harmful to the public. Let us suppose that there is a cooperative enterprise controlling the whole of the trade of one of our up-country towns. It need not necessarily be of a harmful character. The whole thing depends upon its purpose, its structure, and its intent. Co-operation as such is a thing which ought heartily to be commended wherever Ave see it engaged in its best work.
– The honorable member is referring to voluntary co-operation?
– Of course. But, as with all human effort, and all human contrivances, abuses inevitably spring up, and will continue to do so, unless we can eliminate the passions of men from our ordinary human nature. So long as men are greedy, ambitious, and powerful there is need for these restraints of Parliament being placed upon them. But these evils, as I pointed out the other day, do not necessarily inhere in any system. They are part of the common failing which manifests itself in every relation of life, and it becomes the supreme duty of any Parliament to try to clear away the evils without abolishing, if it can be so arranged, all the good side of cooperative enterprises:. The Bill, so far as I can see, aims at interference with cooperative combines, no matter how harmless or destructive they may be. One of the cardinal principles of the Bill, so far as I am able to see its structure, is that, if a co-operative business is succeeding, it must be regarded as necessarily bad. If it proves its success, whether by way of superior machinery, or better means of distribution, or better administrative skill, no matter by what method it achieves its purpose, and how much in the direction of human progress in general it may be, the Bill indicts it, and regards it as a bad thing, to be challenged with a view to its suppression. I do not take up that attitude at all.
– Nobody else does.
– -Yes; the honorable member, for one, does. Instead of suppressing co-operation in the ordinary sense, he would take it under his wing and control .
– The honorable member has put up an “ Aunt Sally “ to knock it down.
– In every speech which the honorable member makes he does that very thing. Therefore, I shall be in good company if I am doing it; but I am not. The Bill having been brought in ostensibly to repress monopolies where harmful, there can be no harm in making this definitive clause say what the Bill intends to do. Therefore, I shall support the amendment to insert the word “ destructive “ before the word “ monopoly.”
– I do not think it matters very much whether the word “ destructive “ is inserted or left out, because it cannot possibly affect the text of this part of the measure. It is only where the Court is in doubt as to the meaning of a section that it falls back upon the title or heading, which is then regarded as capable of explaining the doubtful phraseology. But, whether we insert the word “ destructive “ here or not, unless we alter the clause too, we shall not to any extent affect .the Bill as it stands. So that these descriptions in the preamble and in parts of the Bill seem to be more like pious homilies introduced by the Minister of Trade and Customs in order to render more palatable the clauses themselves. If there is an amendment to be made in the clause, I think it ought to be in connexion with the word “ repression,” because to repress means to put down. This, however, is a Bill to prevent monopolies from arising. As the Minister has shown, a disposition, as he did in the case of the Trade Marks Bill, to gradually destroy the whole structure of the measure by the amendments- which he is introducing, .perhaps he will agree to omit the word “ repression “ and’ insert the word “ prevention.” According to clause 4, the whole object is to prevent monopolies from arising. Surely we cannot repress a monopoly before it has arisen. The aim of the Minister is to prevent so-called foreign companies] from coming in here and destroying the existing trade, or which are at present in competition with existing manufacturers. If the competition exists at present there is not a monopoly. The object of the Bill is to stop competition which may result in the destruction of local manufactures.
– But an Act of Parliament is always speaking in the present, and so it represses it at the time.
– The Attorney-General wants to make the provision speak only in the future. If it speaks in the present it must speak the moment it is passed, when the monopoly will still be future. It will speak hereafter, no doubt, and then the hereafter will become the present. But the present, in the Attorney-General’s mind, is the hereafter, which cannot arise until some time after the Bill is passed. As we are on the question of phraseology, and the Minister is apparently so delighted ‘to change the phraseology, of the Bill, perhaps he will agree to strike out the word “ repression,” and put in the word “ prevention.” The honorable member for West Sydney has referred to certain classes of monopolies which ought to be put down as obnoxious in themselves, although they do not do any harm to the public. He referred to a certain shipping combination which ought to be put down, and which is being put down by the Bill. Now, this is a very farreaching measure. It aims at combinations which in themselves are harmless, and are not obnoxious to the public interested, or to the extent which requires the intervention of the Legislature. I hold that a monopoly ought not to be put down unless it is a true one. I agree with many of my friends in the Labour Party in the destruction of true monopolies. There is a monopoly in 1’and; there may be a monopoly in a land grant railway or in tramcars. It may be beneficial to the State or municipality to assume their control, and so far as that is concerned I am with them. But agencies which hurt particular producers or manufacturers are not monopolies, because they may be met by competition in the open market. I therefore think I am entitled to say that these descriptions are put at the top of the parts of the Bill in order to render the clauses more palatable. As a matter offact, in America the so-called monopolies as to which the honorable member for West Sydney and the Bill seem to be so solicitous, are put down against a very strong public opinion. The legislation has gone far beyond what was intended. For instance, in State and Federal Control of Persons and Property, a work by C. G. Tiedeman, several State decisions are referred to, in which it is declared that where the operations of a particular combination - and they do not talk of monopolies there - are harmless-
– The Sherman Act uses the word “monopoly.”
– The terminology in the text-books, and in most of the State Acts I have seen, is “ combinations and trusts in restraint of trade.” But in this book, at page 404, attention is drawn to the fact that several State decisions were given, acting upon a primary instinct of justice, in a direction which was subsequently found to be wrong by the Supreme Court, because the legislation went beyond the instincts of moral conduct and ethics. It was held by the State Court that-
The test of the validity of such contracts or combinations is not the existence of restriction upon competition imposed thereby, but the reasonableness of that restriction under the facts and circumstances of each particular case.
– At common law.
– They were following the common law, no doubt. This Bill reverses the principles of British common law, because there restraint of trade must be unreasonable. It shows the care which we must exercise when we find that the ordinary principles in relation to trade which, have’ been laid down by Judge after Judge as the very essence of our common law are being reversed by this kind of legislation, and in a way which shocks the sense of justice of some of the State Courts in America. It is pointed out, for instance, that-
The same Question was raised before the Supreme Court of the United States in the Joint Traffic Association, the purpose of which association was stated in the preamble of the articles of agreement to be to “ aid in fulfilling the purpose of the Inter-State Commerce Act, to cooperate with each other and adjacent transportation associations, to establish and maintain reasonable and just rates, fares, rules, and regulations on State and Inter-State traffic, to prevent unjust discrimination, and to secure the reduction ‘and concentration of agencies and the introduction of economies in the. conduct of freight and passenger service.”
Notwithstanding that these were the objects, and that they were being carried cut, it was held that, owing to the wording’ of the Act, which, like this Bill, was directed against restraint of trade, the innocence and character of the competition did not give it any immunity, and that the operations of a joint traffic association were illegal within the meaning of the Act. Similarly -
It has been held in a number of States that all contracts and agreements between fire insurance companies for the establishment of uniform rates of premium are in violation of these anti-trust Statutes.
The text-book writers acknowledge that verv often they are harmless, or, at all events, not obnoxious within the spirit of the thing.
Mr. DUGALD THOMSON (North Sydnev) [3.25!. - The Minister of Tradeand Customs has not told us whether heagrees with the suggestion of the honorable and learned member for Angas.
– I propose to ad1here to the words in the Bill.
– The Minister is now adhering very strictly to the wording of the Bill. We have had an intimation from the honorable and learned member for West Sydney that in another part of the Bill he intends to move for the excision of the word which it is proposed to insert here. I think that we will have evidence as to whether the intention of the Ministry is to support the policy of the Corner, that is, the dealing with all monopolies, whether they may be offensive or not, by the attitude which the Minister now assumes as regards the use of the word in this position, and that which he may assume as regards its use in another position.
.- I think that before going to a division we should know definitely from the Minister of Trade and Customs his attitude in the whole matter. He has told us that he is going to stand to the Bill. Does that mean that he is going to stand to the Bill right through ?
– He has not used that expression ; he has said that he proposes to adhere to the words in the Bill.
– Will the Minister give us an assurance that he will leave the word “destructive” in the title? If he will .give us that assurance it will put us in a much better position.
– Wait until we come to it.
– Surely the Minister must see that one question is bound up with the other. At the present moment we are asking the Minister to bring this part of the Bill into line with the rest. We ask him to allow us to use the same word here as appears in the title. In answer to a sudden demand from a member of the Labour Party, he expressed his immediate determination not to put in the word which we wished . to be inserted.
– That is not fair.
– Is there anything not accurate and strictly fair in what I said ?
– The honorable member insinuates that the Minister had not told us before.
– I think that my words were that the Minister gave voice to his immediate determination not to put in the word “ destructive.”
– I did it some considerable time before the honorable and learned member for West Sydney said a word.
– If the Minister did say anything of the sort, it must have been sotto voce.
– I said it very distinctly.
– Then I am afraid that I am doing the Minister an injustice.
– I am sure of that.
– The honorable gentleman had apparently decided not to put in the word “destructive” lone before he heard the loud voice of the honorable and learned member for West Sydney. The point is that that honorable and learned member has told us that he is going very much further than the Minister has declared his intention to do, and proposes to move that the word be struck out of the title of the Bill. Is the Minister prepared to .go that far with the honorable and learned member for West Sydney ?
– The honorable member will find that out when we get there.
– That is not good enough for honorable members on this side. We have accepted assurances from the honorable gentleman which have been of no use to us, and, therefore, possibilities and probabilities are not likely to be of much use. The honorable gentleman must see that if he is going to stand by the title of the Bill, which describes its purpose, and if the title is to include the term “ destructive monopolies,” our opposition would not be so strong as it would otherwise be. If the title is to remain as at -present, what we are fighting for now is merely the use of the same phraseology here as that used throughout the rest of the measure ; but if, on the other hand, the word “ destructive “ is to be removed from the title of the Bill, our fight now must be for a principle, and not merely with respect to mere phraseology. The honorable and learned member for Angas raised the question as to whether it would not be wiser to alter the description of Fart II. by using the phrase “ Prevention of monopolies” instead of “Repression of monopolies,” and the honorable and learned gentleman’s arguments on that point were very forcible.
– If the word “prevention “ were used, how should we deal with monopolies already existing? By the use of the word “ prevention “ we could deal only with monopolies which cropped up after the passing of the Bill.
– We could continue to prevent. The use of the word prevention would not necessarily mean that we should prevent once, and once only.
– The word “ prevention “ is used in the Constitution in the reference to the “ prevention and settlement of industrial disputes.”
– Exactly, and we have acted upon that use of the word.
– Honorable members will find the word “settlement” used in that connexion as well as the word “prevention.”
– We can go on preventing. The Attorney-General will admit that in the arbitration measure which we passed we have used the word “prevention.”
– Yes ; but we have used the word “settlement” as well. Arbitration applies to both settlement and prevention.
– The word “settlement “ is used for an entirely different purpose in that connexion, as the AttorneyGeneral knows.
– If the word “ prevention “ covers the whole ground, what is the objection to the word “repression” ?
– Because we wish to make the Bill verbally perfect, if possible.
– The word “ prevention “ is used in the next line, to describe Part. III. of the Bill.
– The next line is “ Part III., prevention of dumping,” because Part III. deals with that.
– We cannot deal with dumping which has taken place in the past. We must deal with dumping in the future.
– The Minister must see that the word “prevention” has a continuous sense, and the objection taken to it does not apply. The last argument used bears very much against the honorable gentleman’s position, because if prevention can have a future tense, why can it not have a present tense? Part II. of this Bill deals entirely with the prevention of monopolies, as the Attorney-General must see, and not with the repression of monopolies in the ordinary sense of the term. I think that the Minister might very well accept the suggestion of the honorable and learned member for Angas. We have a right to know definitely from the honorable gentleman what is his attitude in regard to the use of the phrase “ destructive monopolies.”
– My attitude is to stick to the Bill.
– To stick absolutely to the Bill?
– Excepting with slight variations.
– What variations?
– The honorable member will see as we go on.
– I am afraid that the Minister does not help us. I have no wish to delay the consideration of the Bill, but it seems to me that we must know what the Minister is prepared to do. We wish to know whether we are fighting for a principle or merely for an alteration of the verbiage of the Bill. If only a verbal alteration is involved, the matter does not require strenuous attention, but if we are fighting for a principle, we should make the fight at this stage once and for all. I ask the Minister whether he really means to repress all monopolies or only destructive monopolies? If the honorable gentleman means to repress all monopolies, the question as to what is a monopoly will arise, and he will find himself in a maze of difficulty, which will certainly not facilitate the passing of the measure. The honorable gentleman must see that if he does not use the word “ destructive “ here the question must be raised whether a monopoly is destructive or not. The honorable and learned member for West Sydney has no doubt a monopoly of some things that other people may want.
– What is it?
-The honorable and learned gentleman may be said to possess a monopoly of his effects so far as the people who desire to get them are concerned. I say that the Minister must consider this question now if he wishes to pass the measure with due celerity.
– I hardly think that it is necessary for the honorable member for Wentworth to take up so much time in demanding an assurance from the Minister that he is going to stand by his own Bill, because the Bill as drawn, and according to its express scope, is not a Bill for the repression of monopolies generally. It it a Bill for the repression of destructive and injurious monopolies, and the Minister will, therefore, have to stand by the words in the title. I cannot see howhe can possibly abandon the terms of the title without at the same time abandoning the fundamental principle of his own Bill. That fundamental principle is the repression, suppression, or prevention of combinations and monopolies injurious to the public, or to the public detriment, or that are conducted with the intention of destroying industries. The Minister could not, therefore, abandon the words in the title without the abandonment of his own Bill.
– I did not say that I was going to abandon the words in the title.
– I should apprehend thatthe honorable gentleman would not say that. It is therefore rather an unnecessary reflection upon the Minister to ask him at this stage if he is going to abandon the fundamental principle of his own Bill. I assume that he will not. If the honorable gentleman does attempt to abandon it, that will be time enough to challenge his attitude, and I shall be prepared to support the honorable member for Wentworth if the Minister does assume an attitude of abandonment of the principle of his own Bill. With reference to the suggestion of the honorable and learned member for Angas that the word “ prevention “ should be substituted for the word “repression, “ I would point out that it might be that there are at the present time existing agreements and combinations which it is necessary to suppress. When we come to the clause dealing with this matter I shall be prepared to inform the honorable and learned member of certain agreements or combines in existence at the present time, or which were in existence at so nearly the present time as to justify our regarding them as present evils which might be suppressed under this measure.
Clause agreed to.
Clause 3 -
In this Act, unless the contrary intention appears - “ Commercial Trust “ includes a combination, whether wholly or partly within or beyond Australia, of separate and independent persons (corporate or unincorporate) whose voting power or determinations are controlled or controllable by -
the creation of a trust as understood in equity, or of a corporation, wherein the trustees or corporation hold the interests, shares, or stock of the constituent persons ; or
an agreement; or (c) the creation of a board of management or its equivalent; or
some similar means; and includes any division, part, constituent, person, or agent of a Commercial Trust. “Lower remuneration forlabour” includes less pay or longer hours, or any terms or conditions of labour or employment more disadvantageous to workers. “‘Person” includes corporation and firm and a Commercial Trust.
– In dealing with this clause, I should like to point out to the Minister that it containsno definition of an “ industry.” On the face of it, it might appear to be unnecessaryto define an industry ; but it appears to me that, from the experience we have from other countries: of the very ingenious ways in which trusts do climb out, it would be as well to define an industry, and I do not think that it could be done in a better place in this Bill than in this clause. I suggest that an industry is -
An occupation in which persons are engaged in producing, manufacturing, distributing, or introducing into the Commonwealth from foreign countries or from one State to another anything having an exchange value.
If persons are employed in the production, manufacture, distribution, or introduction from foreign countries into the Commonwealth or from one State of the Commonwealth into another, of anything having an exchange value, they may be said to be employed in an industry.
– The definition suggested would not cover a corporation trading in one State only.
– The definition suggested would not be wide enough. It would not cover a corporation engaged in a purely intra-State occupation.
– That is so. We might insert the words “or in any Statein the definition I have proposed, and I submit that, with that emendation suggested by the honorable member for North Sydney, the definition I have proposed would cover the ground. In any case, I submit to the Minister that it is very necessary for us to define what an industry is. Later on in the Bill honorable members will find reference made to “ any person who wilfully, either as principal or as agent,” does anything with a view to “ destroying an Australian industry.” Now. what is an Australian industry? What is an industry ? Because on the face of it anything might be an industry, but it would by no means follow when a case was brought before the Court. It might be said that what was complained of was no industry at all, and that the Bill was never intended to cover it. We should therefore put down- what we mean in plain words. We should not object to the repetition of terms, but should put what we mean in plain, explicit language. We mean to preserve Australian industries, and therefore we should not hesitate to declare what an industry is. I think that industries are those occupations which are connected with the production, manufacture, distribution, or introduction of anything from foreign countries, or from one State to another, having an exchange value. What is an industry ?
– Shipping is an industry ?
– Of course it is; there can be no sort of doubt about that. A whole heap of occupations are industrial, while a number are ora the border line. Suppose a trust were formed merely to control - without affecting any particular industry - the prices of commodities after they have come from an industry, and have been placed on the market, would that be regarded as an industry? I do not know. The Bill does not say, for instance, that selling commodities in a store is an industry ; and it is fairly questionable whether it is. In an Act of Charles II., the words, “All persons are subject to this Act,” have been held times out of number to mean not all persons, but only all persons within the meaning of the Act ; and that, of course, excludes by far the greater number of persons in the community. The party to which I belong have no great faith in legislation to repress monopoly, and believe that, if legislation can do so, it is only bv setting forth, in clear and emphatic terms, what an industry is. 1 should like to point out to the honorable member for North Svdney that there are some occupations which we might not de- . sire to repress, and which, under the Bill as it stands, might be killed. That is not a desirable result. I do not want to make this measure a drag-net, or to cause it to act in Donnybrook fashion, and1 smash a head whenever a head appears. I should like the Bill to be specific in regard to something as to which, I believe, a great many honorable members opposite are at one with honorable members on this side. We cannot be too clear and precise in our terminology; and, therefore, when we describe this Bill as one to preserve industries, we ought to emphatically declare what an industry is. I hope the Minister will agree to insert a definition.
– I think that the objection of the honorable and learned member for West Sydney is partly met by sub-clause a of clause 4. An association with the object he mentions, namely, the raising of prices after commodities have left the hands of the producer, would be an association endeavouring to restrain trade or commerce, and, therefore, would be partly met by that clause. I should like, however, to have an exposition from the Attorney-General of the meaning of this clause. I have read it several times, and it is about as difficult to construe as any clause could be. What is the meaning of “commercial trust”? On this I should like some explanation from the Attorney-General - an explanation that would give the Committee information as to what points the AttorneyGeneral desires to meet, and why he should make such a comprehensive definition to cover cases which have arisen elsewhere. We should have some explanation in order that we may not legislate in the dark. As to the proposed definition of “industry,” I think it would be unwise, because in such a proposal I can see something which might exclude certain restraints of trade and! commerce, which, in mv opinion, ought not to be excluded.
– For instance, what?
– The AttorneyGeneral knows full well that the Sherman Act has prevented restraints of trade and commerce, not merely as between States, but by means of trades unions. The case which I mentioned in the discussion on the Union Label Bill last year, was referred to by the Attorney-General himself as one which dealt with restraint of trade and commerce by means of trades unions. Honorable members will remember the case I then cited of a batmakers’ union which endeavoured to prevent trade and commerce between States by boycotting or otherwise restricting hats made in one State from passing to another State. In that instance the trades union was stopped under the Sherman Act ; and when I quoted that case the Attorney-General said, “ Yes, that was a case in which the trades union was sued for triple damages,” .and so forth. I am afraid that am attempt will be made to exclude from the application of the Bill all operations of that kind. If we are going to repress monopolies - to repress anything which restrains trade and commerce - it must be all-round repression. It must not be a repression which hits only at organized capital, and does not interfere with organized labour, allowing the latter to restrain trade and commerce as much as may be desired. That is the object of the proposal which I understand is about to be sprung on the House.
– By whom?
– I cannot give the name of the honorable member who may submit the proposal.
– The honorable member does not suggest that the Government intend to do so?
– No ; and I hope the Attorney-General does not think that that is what I intend to convey. I mean that in trying to define too much in the clause we may make a loop-hole, and permit it to be hereafter said that the Legislature did not aim at repressing restraint of trade and commerce, except by organized capital. To such a proposition I object. However, generally speaking, I hope the AttorneyGeneral will give an exposition of this very complicated clause.
.- I move -
That after the word “ appears,” line 2, the following words be inserted : - “ ‘Industry ‘ means any occupation in which persons are engaged in the production, manufacture, or distribution in any State of the Commonwealth, or the introduction from foreign countries into the Commonwealth, or from one State to another, of anything having an exchange value.”
I think that pretty nearly covers the ground.
– It covers a good deal, anyhow.
– At present I cannot see any necessity for this amendment, which, in my opinion, might do some harm. It might restrict the operation, to some extent, of the interpretation put on the word “ industry “ by a Court or by the Judge of a Court. It would be better to leave the interpretation to a Court; because every one, especially a Judge, knows what the word “ industry “ means. I find that in the Commonwealth Conciliation and Arbitration Act, the definition of the word “industry” is as follows: - “ Industry “ means business, trade, manufacture, undertaking, calling, service, or employ ment, on land or water, in which persons are employed for pay, hire, advantage, or reward
I think that definition, too, restricts the meaning of the word. I do not know that the honorable member for West Sydney intends to press his amendment, which, though it may not do much harm, may possibly do more harm than good. I do not see any danger in leaving the interpretation of the word “ industry “ to the Court or the Judge.
– - How can honorable members possibly grasp an amendment like this in the absence of any explanation on the part of the mover? The amendment may be dangerous, or it may be perfectly harmless - I do not know which. I should like the honorable member for West Sylney to explain the reason for proposing the insertion of this definition. What calamity is it intended to meet? What phase of the Bill is it intended to cover? I should have thought that the interpretation clause of this Bill was already far too wide, though it appears that the honorable member for West Sydney regards it as not wide enough.
– The honorable member did not hear me, but I said that in many cases the interpretation clause might be too wide.
– I should like to hear from the honorable member some explanation of, or reason for, this amendment.
– I say that the Bill ought to be limited to definite purposes.
– Is that why the honorable member proposes to insert an amendment which covers the whole gamut of economics, from A to Z?
– I do not think that the amendment does so.
– I cannot conceive a wider term than “industry.”
– The honorable member is quite wrong in saying that the amendment covers the whole gamut of economics, though he would be right in saying that it covers the whole gamut of industry.
– “ Industry “ will cover anything relating to the employment of labour - to the performance of labour, and to all connected with our industrial life. What is the idea of the insertion of a proposal of this kind in the forefront of clause 3 ? What circumstances not already provided for does the honorable member propose to meet? All I know is that the amendment is of the widest possible character, and would embrace within its scope and operation the whole of the operations of our industrial life. However, if the Ministry do not propose to offer any determined opposition to the amendment I do not see why I should.
– The amendment will take the trade unions out of the Bill - that is the idea.
– I hope the honorable member for West Sydney will not press the amendment. I agree with the Minister of Trade and Customs that the words “ Australian industry “ are of general import, and that there will not be much difficulty in understanding them. I am afraid that an artificial definition such as that proposed - and rather complicated it is, too - would make the clause more difficult to understand and interpret. The amendment might unduly extend or unduly restrict - I am not prepared at the present moment to offer an opinion as to what the effect would be. As to the attitude of the Government, I suggest that we keep to the ordinary, wellknown English words, “Australian industry.” We all understand what these words mean.
– They are wide enough for anything.
– They are wide enough, and narrow enough. They are well understood and it would be very difficult now to insert a definition, having some degree of artificiality, which could better express what we mean than do the words of the clause as it stands.
Mr.Johnson. - The proposed definition would clash with the definition in the Conciliation and Arbitration Act.
– Of course, the two Acts are separate.
Mr.Johnson. - But both Acts apply to the same thing.
– We have not had an opportunity to consider the proposed definition, and I suggest that the ordinary words of general import, namely, “Australian industry” should be retained, and that we trust to their regular and ordinary interpretation.
– Like the honorable and learned member for Wannon, I should like some explanation of the effect of the definitions in the interpretation clause The definition of “ commercial trust “ seems to me to be very wide. “Commercial trust” is not said to mean a certain thing ; it “ includes ‘ ‘ certain things; so that the word’s have their ordinary signification, and, in addition, the special meaning given here. The word “includes” is twice used. A “commercial trust “ includes something which includes something else - a method of definition which I have not seen adopted before. “Commercial trust” includes “ a combination, whether wholly or partly within or beyond Australia, of separate and independent persons.” All combinations are, I suppose, combinations of separate persons. If they were not separate, they could not be combined any more than they were already combined. So far the definition is pretty wide; but it is widest,not in paragraph a, which deals with a combination “ whose voting power or determinations are controlled or controllable by the creation of a trust,” but in paragraph b, which deals with a combination “ controlled or controllable by an agreement,” and in paragraph c, which deals with a combination “controlled or controllable by the creation of a board of management or its equivalent.” In the first place, I would ask how can a commercial trust be controlled or controllable by the creation of a trust. The control may follow as a consequence of the creation of a trust, but the combination is not controlled or controllable by the creation of the trust. Then the word “ trust “ is used “ as understood in equity “ ; but in equity a trust is a relation, whereas here it is an entity or combination. I do not know of any definition of the word “ trust “ in equity synonomous with the signification given to it here, where it includes a combination.
– The first trust alluded to is a concrete body - the “ commercial trust “ ; whereas the second trust is the relation understood in equity. A reference to trustees follows immediately.
– Perhaps so; but it is an extraordinary way of defining a term to explain its meaning by the use of a word employed in two significations. Are not all combinations controlled by an agreement? Surely every industrial combination must have its committee and body of rules, and its operations must be controlled by an agreement of some kind. The definition is very wide. The term “ commercial trust “ means any body formed by the combination of two or more separate and independent persons whose voting power or determinations are controlled by an agreement, however expressed ; or, under paragraph c, by the creation of a board of management, or its equivalent. Such combinations are not trusts in the ordinary sense of the word, but they would come within the scope of the measure. Moreover, as the ordinary principle of construction in criminal cases has been violated, guilt being regarded as proved until innocence has been established, such combinations will be prima facie guilty of the offences created by the Bill. Unfair competition, according to clause. 6, means “competition which is, in the opinion of the jury, unfair in the circumstances”; and it is to be deemed unfair in certain cases until the contrary is proved- If it is found to be unfair, the combination guilty of it will be liable, under clauses 4 and 5, to severe penalties. That is a very dangerous definition. It seems to me that paragraphs b and c and even d, might be struck out. That would confine the definition to an ordinary commercial trust, which is a body whose shares are vested in a committee or board of some sort im such a way that its mandates control the operations of all the associated companies or persons. That is the class of trusts against which the Bill is supposed to be directed, and if the paragraphs which I have mentioned were struck out, it would be efficacious for its alleged purpose, without being exceedingly dangerous to ordinary firms and partnerships.
– When the honorable and learned member for Angas was speaking, several illustrations occurred to me of the wide sweep which this clause gives to the measure. In the district represented by the honorable member for Newcastle, there have been, almost from the very first, what are known as coal vends, which are combinations of colliery proprietors, formed to fix the selling price of coal, which the Arbitration Court takes as the basis on which to fix its hewing price. Apart from being bound by the agreement as to prices, the companies concerned are free to carry on their business as they choose. The vend system came into vogue as a means of selfprotection, because in the district the conditions under which coal is obtained vary extremely, in some places coal being difficult and costly to obtain, and in others easy and cheap. The colliery proprietors, to protect themselves from the evil effects of the under-cutting which takes place when competition is severe, and is always followed by the reduction of wages, agreed among themselves to sell only at certain prices. Unfortunately, some of the collieries remain outside the vend, and they as a rule create most of the troubles which arise in the district, because they pay lower rates than are generally paid, and adopt various measures to bring down the hewing price of coal, under-cutting in order to get trade. In the western coal district of New South Wales a similar arrangement exists. Last year a Royal Commission was appointed by the Government of New South Wales to inquire into certain allegations made in the Legislative Assembly in respect to the letting of coal contracts by the Railway Commissioners. The vend or agreement operating at Lithgow had raised the price of coal to a very fair rate, and the Railway Commissioners, acting upon strictly commercial lines, gave their orders to a small colliery. which offered to supply them at a verv much lower rate, their idea being to keep it going in order, by introducing the element of competition, to bring down prices. But years ago, before there was an agreement, the price of coal in that district was very low indeed. The result of the agreement has been to raise prices to a fair rate - -because thev are not now abnormally high. The Bill, however, might put a stop to such agreements, although, ;n my opinion, they are legitimate, and do_ not affect consumers detrimentally. If such fair trade agreements are interfered with, the Bill will do what it is said to be intended to prevent - that is, it will bring about sweating by creating conditions tending to the lowering of wages.
– It is easy to say so; but it is hard to prove the statement.
– I should like to hear the position explained by the AttorneyGeneral. To my mind, it will be ai very serious matter if all trade agreements are indicted merely because they are agreements, although they may control the parties to them only in certain particulars. If that happens, it will strike a blow at the conditions which we wish to maintain, namely, fair agreements providing for fair remuneration, fair conditions of trade, and standards prescribed by means of a voluntary co-operation. I think we ought to encourage that kind of thing, instead of striking a blow at it. That is the distinction between some of us who believe that co-operation can be brought about voluntarily under the aegis of the State, so far as the prevention of abuses is concerned, and those who would bring all such enterprises under the control of the State itself. Unless this clause is altered, it will aim a blow at voluntary co-operations of a fair and reasonable character, instead of confining itself to the repression of destructive monopolies, which we are all anxious to suppress.
– I think that honorable members are reasonable in asking for some explanation of the definition of “ commercial trust.” There is no Act that I am aware of that contains the definition, but it has been educed from the various American decisions, as we have them recorded, and I shall explain to the Committee how the clause took its present shape. It is necessary to understand to some extent the development of the trust system, as we call it, in America, and I shall very briefly explain the way in which that evolution took place. There have been three stages in the development. The first stage was this : Separate and independent persons - by that is meant, of course, persons carrying on different businesses, .either as single individuals, or firms or corporations separately and independently as regards each other - entered into what are known in America as simple combinations. That Ls to say, these various separate and independent persons entered into an agreement, and formed what was then known as a combine - that is the strict meaning of the word - bv which they determined that they would surrender their individual discretion in carrying on their respective separate businesses, and agreed that they should be conducted only in a particular manner. Some of these agreements were perfectly good, but others were held by the Courts to be bad. An illustration cif a. case of a simple combination was. found in T892, in the case of the Texas Oil Company and another v. Adoue, 83 Texas Reports, 650. The gist of the agreement is given as follows: -
A contract between five cotton-seed oil mills, fixing prices of cotton seed, and naming the markets wherein each mill was to buy, and guaranteeing certain profits to each mill, is illegal and void, upon the following grounds : That the prices paid for cotton seed by the parties to the agreement were arbitrarily fixed without reference to the market, and were changed only by mutual agreement. That the selling prices of the products of the mills were arbitrarily fixed, and each party to the agreement was expressly prohibited from selling its products at less than the minimum price so fixed.
The Court held that such provisions were contrary to public policy and void. It said -
If the object of the contract had been merely to provide in good faith a uniformity of prices among the parties thereto, to avoid unhealthy fluctuations in the market, or if the contract had contemplated a joint and mutual association between the parties for their common benefit in the nature of a partnership, and had simply fixed the prices at what they considered the business would bear, instead of a combination between independent manufacturers and dealers for the purpose of at least destroying all competition between themselves, then there might have been nothing in such an arrangement which the Courts could pronounce as pernicious and forbidden by law. There is no pretence, however, that any partnership was contemplated in this instance ; and if there had been, the entire absence of any community of interests in the profits, losses, or capital employed, would have effectually repelled the assumption. Each party retained, after the contract as before that time, the control of his capital and the operation of his own mills, and did not throw his capital or manufacturing concerns into a common stock. He continued to operate with his own separate means, “but surrendered his right of competition and of supplying his mills with raw material at the best prices he might otherwise have obtained in the markets of the State, and consented to submit to rates artificially established. But the contract - rather, I say, the combination - did not stop at establishing prices merely.
It was pointed1 out that the parties had practically entered into a conspiracy. That was a case of a simple combination where separate and independent persons agreed amongst themselves to do something to the detriment of the public. The Court suppressed that kind of combination. Then the ingenuity of the American manufacturer and trader evolved the trust. In Eddy on Combinations, at page 550, we find the following : -
The trust form of combination was simply an effort to evade the force of the many .decisions against simple combinations. The Courts having held, in the cases reviewed in the last chapter, that neither parties nor corporations could become parties to agreements, pools, or associations for the control of prices and products, it was suggested that the same practical result might be accomplished by the organization of constituent corporations, each stockholder of which would deposit his stock with certain trustees, giving them the power to vote same, and thereby control all the constituent corporations, the stockholder receiving in return for the stock surrendered trustees’ certificates. It was argued, with some show of reason, that a man could do as he pleased with his own, and if he saw fit to place his stock in the hands of another with power to vote it, he could do so. But, as will be seen, the Courts condemned the “ trust “ as illegal combination under another form and name.
In other words, what they said was : “ If we cannot as separate individuals agree with one another as to prices and profits, we shall have no agreement at all as to what we will do, or what we will not do. We shall have a corporation, and hand our shares over to trustees, who will manage the whole of our businesses for us. We shall not say that we will not sell below a certain price, or will not pay above a certain price. We shall not agree to restrict our products or refuse to deal except under discriminating terms, because the Court would hold that to be wrong ; but we shall put our shares in the hands of trustees, and get certificates for them. The trustees can exercise our voting power, and our businesses will, therefore, be controllable by them.” They, therefore, used the well-known equity system of trust law to aid them in their attempts to get rid of the simple combination decisions. The Court held that that also was bad, and I must say that at present that particular form of monopoly is disappearing in America, because the Courts have hit it very hard. Then the members of the trusts, being prevented from forming simple combinations or trust combinations, adopted another system, which is described in the Merger case. They formed an entirely new corporation, which was to have as its own particular function the holding of the stocks of the separate corporations. The new business was managed on corporation lines. The Court said that that form of trust or combination was equally bad, and crushed it in the Northern Securities case. If honorable members will follow the definitionas it appears in the Bill, they will find that it deals: with the various forms of evolution as we have found them in America. In the first place, it is provided -
In this Act, unless the contrary intention appears - “ Commercial Trust “ includes a combination, whether wholly or partly within or beyond Australia, of separate and independent persons.
That does not mean separate individuals in the one partnership. If persons become partners they are no longer separate individuals. (corporate or unincorporate) whose voting power or determinations are controlled or controllable by -
That plainly indicates various separate and. independent persons who join combinations.
– Or firms.
– Then the Bill would apply to the case mentioned by the honorable member for Parramatta?
– A firm as a whole would be one person. The honorable member will see that, according to the definition, “person” includes “corporation and firm and a commercial trust.” But the members of a firm would not be separate and independent towards each other.
– A number of firms in combination would be brought within the scope of the provision.
– Three firms would be three independent persons.
– Then the explanation of the Minister must have been misleading.
– I do not understand the honorable member. I have not said anything that could be calculated to mislead. I think I have been perfectly consistent in all that I have said. The definition continues -
If a number of firms come together and say that they will have a board of trustees or a board of management, we say that that is a trust in another form. We could not follow these combinations throughout all their possibilities, in view of the Protean forms taken by American combinations, and, therefore, we could only leave it to the Court to decide what were “similar means.” Then the definition continues - andincludes any division, part, constituent, person, or agent of a Commercial Trust.
Some of these huge commercial trusts embrace within the scope of their operations America, England, and these Colonies, and we could not meet the case if we restricted the operation of the Act to cases in which a trust confined its business to Australia. These trusts have their divisions. For instance, the International Harvester Trust has what is called its Australian division, and under the Bill we shall be able to deal with that portion of the trust that finds its place in Australia.
– But the provision would include very much more.
– I do not think that it includes the case mentioned by the honorable member for Parramatta.
– The decision read by the Minister would prevent a combination such as the coal vend.
– No. It prevented a combination which was intended to shut out legitimate competition.
– Among themselves?
– Yes; but it did not prevent the payment of prices that the competition would honestly bear. In other words, if the vend were intended to prevent such cut-throat competition as would wipe out legitimate competition, and ultimately leave the public, the workers, and everybody else, at the mercy of those who remained, it would be legitimate, but if it were intended to prevent legitimate competition, and from the first to put every person at the mercy of the combination, it would be illegitimate.
– Summed up, it would remain with the tribunal to decide upon the facts whether or not the competition was fair?
– Exactly. It is impossible to predicate in advance what is reasonable, and what is not.
– What would be a fair price for one colliery to pay might be an unfair price for another.
– In the Great Nordenfeldt case in the House of Lords, it was pointed out that it was for the Court to determine whether the combination was to the detriment of the public, or whether it was reasonable under the circumstances.
– Or whether it was a restraint of trade to the injury of the public.
– It is simply impossible to say beforehand what would be a crime and what would not.
– I understand that the matter will be decided by the Court, but I think that what we embody in this Bill will prove of guidance to that tribunal.
– Obviously it is to be a Court for the regulation of prices.
– No. There is no difference between this Bill and any other measure which is intended to restrain offences. Everything will depend upon the view which the tribunal ultimately takes of the facts of any case. We cannot get nearer than that. In answer to the honorable and learned member for Angas, I would point out that the definition of a “ commercial trust “ will not have the effect which he apprehends, because, although there is in the Bill a clause which declares that the fact that a body is a commercial trust, shall raise a prima facie assumption, it is not a prima facie presumption of guilt.
– I did not say that it was. I said that the parties had to disprove the allegation of guilt.
– That is not so. I would point’ out to the honorable and learned member that the definition of a commercial trust does not enter into any charge that he can imagine, such as “ a wilful combination in restraint of trade or commerce to the detriment of the public.” Perhaps that is a complete answer to the position put by the honorable member for Newcastle. The only provision relating to a prima facie presumption in regard to a commercial trust has reference to paragraph b of clause 4 of the Bill which deals with the repression of monopolies. If the honorable member for Newcastle is merely directing his attention to paragraph a of that provision, I would point out that the definition of a commercial trust has no reference whatever to it. Clause 6 is the only clause which provides that there shall be a prima facie presumption in the case of a commercial trust, and, that being so, it relates only to unfair competition. That “ unfair competition “ is not a phrase used in connexion with paragraph a of clause 4. Consequently the definition of “commercial trust” would have no relation whatever to the decision of a question under paragraph a of that clause.
– Many of these combinations are established merely to raise prices.
– The combination to which I refer was not formed for the purpose of raising prices, but incidentally it has that effect.
– If it is formed merely for the purpose of maintaining a fair and equitable price, such as the business will honestly bear, I have no hesitation in saying that it falls within the class of cases to which I have referred, and that its establishment constitutes no offence at all.
– We must take some power to deal with persons who might put a price of£5 per ton upon coal.
– Of course. If I rightly understand the position put by the honorable member for Newcastle, he need have no apprehension whatever that the definition of “ commercial trust “ will be applied to the case to which he has referred.
– But what if the combination unduly raises the price of coal to the consumers ?
– If it does that, not merely for the purpose of maintaining such a price as the business will honestly bear, but for the purpose of excluding legitimate competition, it will, of course, be hit by this Bill. But that fact does not depend upon the definition of a “ commercial trust.” The two things are entirely separate. The definition of a “commercial trust “ does not enter into the question that has been raised by the honorable member for Newcastle in connexion with the coal difficulty, because that matter would fall within the purview of paragraph a of clause 4, with which the definition in question has nothing whatever to do.
– How is the price which an article can honestly bear to be determined ?
– It can be determined only by the facts of the case. Of course, the guilt of the person must be proved, but in that relation there is no presumption whatever against the accused. The only presumption contained in the Bill is embodied in clause 6. In that provision there is a presumption of one inference only, and even then facts have to be proved to raise that inference. But in the case which we are now considering there is no presumption of any fact whatever against the accused. I think that I have now answered the question put to me in regard to the definition of a “commercial trust.” If there is any other point upon which honorable members desire me to give more detailed information, I shall be happy to do my best to supply it.
.- I have endeavoured to follow the AttorneyGeneral in his very difficult task of interpreting this clause. But I cannot get away from the fact that the proprietors of the coal mines in the Newcastle district are now about to do what they did in years past, namely, arrive at an understanding between themselves, under which they will fix the selling price of coal from year to year. They will determine its selling price at the beginning of the year, not merely for contract purposes, but with a view to fixing the hewing rate payable to miners throughout that year. With the deputy leader of the Opposition, I would point out that, owing to the internal competition which has existed between the colliery proprietors in the Newcastle district, the price of. coal has been reduced so that it is now possible to purchase it in the different States at some shillings per ton less than it could be purchased three or four years ago.
– The selling price of coal in Australia to-day is the lowest in the world, I think.
– It was the lowest in the world before it was reduced1.
– It is quite high enough now for the poor people who have to buy it.
– It is the shipping companies which make it high.
– Assuming that the colliery proprietors combine to raise the price of coal at the beginning of next year from 9s: to11s. per ton, will not the people of the other States invoke the aid of the machinery of this Bill with a view to ascertaining whether the former are not hampering the other industries of the Commonwealth ?
– I hope that they do.
– I would also point out that in years gone by, whenever the colliery proprietors have been competing with each other as keenly as they have been doing recently, tremendous pressure has been brought to bear with a view to inducing them to put the selling price of coal upon a paying basis.
– If they merely seek to put its selling price upon a paying basis there can be no question about their action. They are committing no offence at all.
– But I would point out that the lowest hewing rate fixed by the combine has always been adopted by the colliery proprietors who stood outside of it.
– Outside the monopoly?
– There is no monopoly at all.
– It was very nearly a monopoly.
– How can there be a monopoly, seeing that only one-third of the trade of the Newcastle collieries is done within the Commonwealth. The remaining two-thirds is done with the outer world.
– The colliery proprietors dump their coal outside of Australia, and make the people of the Commonwealth pay a higher price for that article.
– That is what the Tasmanian growers do with their apples.
– I do not think that the honorable member for Franklin would bother to tell the. colliery proprietors the price at which he intended to sell his coal-
– The Newcastle coal is all sold at the same price.
– But the colliery proprietors sometimes fix a lower export price for coal.
– There may have been a chance shipment abroad for the purpose of testing the market. Before this clause is agreed to, I wish it to be clearly understood that the position at Newcastle ought not to be disturbed. Because I believe that to disturb an arrangement of that description would be to do something which would bring an injury not merely upon the combination of proprietors, but upon all the employes at their collieries. I believe that from time to time there has been a sort of vend established by colliery proprietors in the western district of New South Wales, to prevent internal competition amongst themselves, and to enable them to compete on something like a fair basis. My experience of the vend in the northern district is that, while the proprietors do not limit the total output of the collieries in any way, they agree to sell not below a certain price, and whatever trade comes to the port from time to time is, within certain limits, divided according to the capacity of the collieries.
– That is exactly the same as the trust system in America.
– Not necessarily, because in America they shut down different industries and limit the output. Under the vend system in operation at Newcastle there is no limit to the output. The smaller collieries are allowed to fill up to a certain trade limit during the currency of the year, but the bigger collieries, which may be able, perhaps, to command more trade, are only allowed to fill up to a certain capacity, and the balance of the trade is divided among the others. It is a matter of equitable arrangement.
– It is a combine.
– It is a combine for certain purposes, but not in the sense in which the word is used in America, because there is no limitation of the total output.
– It is a combination to prevent sweating.
– That is what Rockefeller said when he floated the Standard Oil Company.
– At Newcastle miners have practically gone out on strike to get a general agreement with their proprietors, and incidentally to bring the proprietors into a combination, so as to put the business on a fair basis. During the last three or four years, in the Newcastle district, the hewing rate has fallen from 4s. 2d. to 3s. 6d. a ton, which, taking an average of 21/2 tons a day, means that a miner has been losing is.10d. a day. The object of the men now is to get the proprietors to fix the selling rate at 11s., or thereabouts, per ton, so that they may get back to the old hewing rate of 4s. 2d. a ton.
– Does not the honorable member think that they could increase the wages without putting up the selling price?
– We have often thought so, but we have never been able to get the proprietors to take that view. I am not too certain, that the proportion is not a fair one.I do not think that, in comparison with other commercial concerns, many colliery companies in the Newcastle district have been able to make an immense fortune. However, for the purposes of this clause, I wish the Minister to be absolutely certain as to the composition of thecombination, because I know, from bitter experience in past times, that a combination can exist for the benefit of all those engaged in the industry. I am not here to attempt to justify any monopolies such as we read exist in America, or any concerns which attempt to combine for the purpose of grasping the whole of the trade, and then doing what they like. I do not think that a genuine, honest combination, which was formed for the purpose of improving the whole condition of those engaged in the industry, and whose prices are determined by open competition in the open markets of the world, can hurt any one.
– They are not struck at by the Bill.
– Then I am satisfied.
– In spite of what the AttorneyGeneral says, under the Bill there will be danger to even such combinations as the vend at Newcastle. For instance, clause 11 - and I only allude to this to show the process which will be followed - says -
Any person who is injured in his person 01 property by any other person.
– Let us keep to the clause.
– I have a right to try to show what would be the result. The honorable and learned member went over half-a-dozen clauses.
– I only answered objections which were raised by an honorable member.
– I do not care why the honorable and learned member took that course. I believe, sir, that I am not out of order in showing the process under which such a combination as the vend would be affected. Any person who was affected, or considered that he was injuriously affected1 by it, could take action. According to the statement by the Attorney-General, the vend is a combination of companies or firms, and is a commercial trust. It is quite true, as he said, that it would not matter in a way if it were not a commercial trust, because any person who restrained trade or commerce to the detriment of the public could be proceeded against; but there is a difference in this respect, that that trust would be held to be conducting unfair competition. The vend would be held to be a commercial trust until the contrary was proved, and as a commercial trust it would be held to be guilty of restraining trade.
– The , honorable member will see that paragraph a of clause 4 has nothing to do with a- commercial trust.
– Clause 6 reads as follows: -
For the purposes of the last two preceding sections, unfair competition means competition which is, in the opinion of the jury, unfair in the circumstances; and in the following cases the competition shall be deemed to be unfair until the contrary is proved : -
If the defendant is a commercial trust or agent of a commercial trust.
In that case, I admit the Attorney-General is right in his view. But action could be taken against the vend.
– No. If it is in restraint of trade, that does not apply to a commercial trust; there is no unfair competition. And if it is unfair competition, it is not in restraint of trade.
– Under clause i’i, action could be taken.
– If there was an offence. The honorable member will see that the definition of commercial trust does not’ affect paragraph a of clause 4, and that it is the only case where the vend comes in.
– It would affect the vend if, for instance, it were injuring an Australian industry by raising the price of coal to the manufacturers.
– Injuring by means of unfair competition. With which Australian industry would it be unfair competition ?
– In what case would clause 11 operate?
– I am not going to discuss clause 11 now, but it has no relation to what the honorable member is talking about.
– AIM say is that if the Act could not interfere, with a combination such as the vend put! ing up its price to any extent, then it would be inoperative.
– I did not say that. I said that if it only charged what the business could fairly bear, and for the purpose of maintaining fair prices and fair wages, it would not be an obnoxious combination.
– That is not the point at all. Action could be taken against the vend, and if it were considered that the rates being charged by the vend were too high or excessive, then its operations would come under the penalty provisions of the Act.
– Any person in the community can have proceedings taken against him for any alleged crime, though he may be perfectly innocent.
– The AttorneyGeneral does not want to allude to clause 1.1, and I do not wish to discuss it at this) stage.
– I honestly think it does not affect this case; but when it is reached I am prepared to discuss its application.
– I think quite the opposite, though, of course, I may be wrong. The honorable and learned member will not deny that under the provisions of the Act the vend would be a commercial trust, and as such would be subject to all the responsibilities and penalties provided therein.
– I am not sure that it is a commercial trust.
– That is what we wish to know at this stage. In a very lucid explanation of clause 3, the honorable and learned gentleman defined a combination of firms or corporations operating in any of the ways named therein to be a commercial trust. The vend is a combination of firms or corporations operating under an agreement, and in the way described in that clause. Therefore, I maintain that, according to his clear exposition of the meaning of the clause, the vend is a commercial trusts
– It may be.
– It is. Although its results may be beneficial in the way of raising wages with the selling price, just as high wages paid by other trusts might be beneficial - in America working men support the trusts, because the wages are put up - still the vend would be subject to all the responsibilities of a trust, if a case could be established by the action of an individual, or a firm, or the Attorney-General. In other words, if ordinary consumers complained of the price of coal, or if the steam-ship owners and manufacturers generally said that they were being called upon to pay too much for their fuel, and therefore were hampered in their operations, action could be taken,and the vend, as a commercial trust, would be subject to all the penalties and responsibilities prescribed.
– I do not quite know where the honorable member for North Sydney is on this matter. He has not indicated whether he thinks that there ought to be a provision to control the operations of such a vend or not.
– I am saying that this is one of the purposes of the Act.
– It would be more interesting to know whether the honorable member approves of that as a purpose or not.
– That is one of the beneficial purposes, but the AttorneyGeneral, in his answer to the honorable member for Newcastle, said-
– The honorable member gave us a very lucid exposition of what, in his opinion, the Bill would permit, but he did not indicate, even in a general way, his view of this matter.
Mr.Joseph Cook. - What has that to do with the question?
– It is a matter of interest sometimes to know whether honorable members approve of a particular proposal or not.
Mr.Joseph Cook. - We know distinctly where the honorable member is.
– Yes, on this as well as on a number of other matters. My view quite coincides with that of the honorable member for North Sydney, so far as the definition of a commercial trust is concerned. I believe that the vend at Newcastle would be a commercial trust within the meaning of the Bill, because that term is here defined as - a combination … of separate and independent persons (corporate or unincorporate) whose voting power or determinations are controlled or controllable by . . .(a) an agreement.
The vend in Newcastle - and I believe there is another in existence at Lithgow - is controlled by an agreement. There are separate and independent bodies engaged in the exploitation of a similar product, and they come to an agreement to sell it at a given price. To my mind, under clause 3 of this Bill that agreement would constitute those bodies a commercial trust. I see no reason why the vend at Newcastle should not be brought within the purview of this measure, and recognised as a trust. The central idea of the measure, as I understand it, is to deal with combinations operating to the detriment of the public. As the honorable member for Parramatta said a little time ago, the gauge in regard to the desirability or otherwiseof these combinations is whether their action is beneficial or detrimental to the public interest. Surely it is a proper thing that the vend at Newcastle, or any other combination formed to carry on certain industries, should be subject to a simple investigation.
– It is the instruction to the Court under this ‘Bill that we require to look after.
– I am quite with the honorable member that we should take care that nothing is done to prevent such legitimate combination amongst coal mine-owners as may be found necessary to enable them to get a fair profit on their capital invested, and to insure fair wages to their employes. But, after all, the test cannot be applied by members of this Parliament. We can only set up machinery that will apply the test. In the tribunal contemplated’ by this Bill the machinery is provided by which these agreements can be investigated, under the ordinary rules of evidence, and pronounced upon by some body of competent jurisdiction. So fax as my limited knowledge of the operations of the vend amongst coal mine-owners is concerned, I have not heard that any outrageous price has been fixed as the result of their operations. In fact, I am inclined to think that, from the New South Wales stand-point, and also from the national point of view, we were for years pouring out our natural wealth from the coal-mining districts, to outsiders in particular, at a ruinously low price. Assuming that there were no great developments in regard to power production in other directions, we were giving away at an infinitesimal price what we could never replace - at a price which yielded no profit to the owners, to the miners, or to the State as a whole. Any system which would overcome that, and operate in the direction of fair and reasonable trading, might be welcomed by any person.
– They sold coal outside at a lower price than they were getting for it in Australia.
– I am not aware of that.
– No. There might have been chance shipments sold at a lower price.
– I say that, so far as my investigations ‘have carried me, I am under the impression that, taking quality into consideration, our coal has been cheaper over the last twenty years in Newcastle and other coal-mining districts of New South Wales than in any other part of the world.
– That is true.
– I do not say that I have any objection to the vend as at present carried on, but we must recognise that power of an irresponsible character nearly always leads to abuse. And suppose that the coal mine proprietors in the vend found it practicable to fix the selling price of coal at10s. a ton, they might be tempted at some time to raise the price to several times that amount, always placating the men in their employby handing over to them a certain proportion of what was improperly taken from the public. That would not be a state of things which we could contemplate with any resignation from the stand-point of the public. Surely it is a proper thing to put the persons comprising a vend in the position of having to justify any large increase in the price of the article they control, of having to show, that their industry demanded such a price in order that it might be carried on successfully.
– They could not do what the honorable gentleman suggests under the simple agreement which exists now. They would have to make the vend into a trust before they could do so.
Mr.WATSON. - Even so, I understand that the main purpose of the Bill is to regulate-
– It makes a combination a trust which otherwise would not be a trust.
– Does not the honorable member for Mernda see that the Bill, if it is to be worth the paper on which it is printed, must deal with combinations operating to the detriment of the public?
– I know that, but my reference was to an interjection which showed that the effect of this Bill would be to create trusts. I am not saying whether they are right or wrong.
– What is there ina name, after all? What difference does it make if we speak of a trust, a body of people working under an agreement, a combination, or of a monopoly ? Call the combination what we will, the fact which should appeal to us as trustees for the public is that here is a body of men already working inharmony, and under an agreement, and apparently in a perfectly justifiable way, but with the potential power to use their combination to the detriment of the public. The test is whether the power of the combination is being used to the detriment of the public.
– Although the Bill might force a combination to become a trust, it would not be affected unless its operations were destructive.
– The fact of calling it a trust will not in itself injuriously affect the combination. It will only be affected injuriously if the tribunal constituted under this Bill decides that the agreement is detrimental to the public. That is where the acid is put on. The test is whether a particular combination is acting detrimentally to the public interest, and that, after all, must be decided by a competent tribunal in open Court.
– That is what we want.
– Will not the raising of the price of an article be acting detrimentally to the public?
– Not necessarily.
– I think it will.
– The use of the words imply at least, if the statement is not specifically made, that it must be unjustifiably to the detriment of the public. Of course, to charge anything for an article is in a sense detrimental to the public, because it would be better for the public if they could get every article for nothing. The mere fact that the vend charge some particular price for a ton of coal does not convict them of acting to the detriment of the public. It would have to be proved to the satisfaction of the tribunal that the price charged was. more than sufficient to pay reasonable wages to those employed, and to return to the mine-owners a reasonable profit on their capital. That case would have to be made out under this Bill before any action would be taken by the Court with a view to hampering or controlling their action under their agreement.
– Suppose a mine were over-capitalized ?
– I say that the Court should take that into consideration. If it were merely a paper capital, and the money had never really been put into the business, the Court would take that into consideration.
– Sometimes a mine is overcapitalized with golden sovereigns. ‘
– It is sometimes. One cannot attempt to follow all the ramifications possible in business in arranging the form this Bill should take. All we can do is to invest some tribunal with power to investigate these cases, and decide on their merits whether combinations are, or are not, to the detriment of the public. That is all we can do, and that, as I understand the measure, is all that this Bill sets out to do. It is true that it does say that the mere fact that a combination is a commer cial trust is: to be prima facie evidence that it is detrimental to the public.
– Not on the question of the restraint of trade, but only in relation to the question of unfair competition.
– I should have no objection if it were considered prima facie evidence as applied all round. If certain men enter into an agreement, they are surely in a position to justify it - to prove that it is necessary to the conduct of their business on reasonably profitable lines. Assuming, as I do, that that is the object of the Bill, and that it reasonably carries it out, I have heard no reason why we should object to the form it now takes.
– The information which is coming out as we discuss the details of this measure begins to throw some light upon its scope as a whole. What the honorable member for Bland calls a simple investigation means that these vends may be indicted because they are vends. They may be brought to the Court simply because they exist as vends. The Judge and jury are to investigate the whole of their proceedings, including the construction of the companies, the question whether their capital is legimitate or watered, and whether there is too much or too little of it. And the result of that investigation will be to determine the price of the product, and consequently, the rate of wages to be paid in the industry.
– Does the honorable member object to that?
– That simply seems to me to be duplicating the machinery of the Arbitration Court.
– It is quite a different question.
– I cannot see the slightest difference.
– The Arbitration Court fixes a minimum rate, but this Bill does not « purport to do anything of the kind.
– This Bill goes further than does the Arbitration Act. That is the difference.
– It may go a very great deal further.
– The Arbitration Court does not fix the selling price of an article, it only regulates the rate of remuneration after the selling has taken place.
– This Bill does not fix it either.
– This Bill goes further, and empowers the Court to regulate the selling price.
– No, it does not. The Court under this Bill may say that the selling price fixed is too high, but it will not say what shall be the selling price.
– Unfair competition may be the competition of those selling at too low a price. An article maybe sold by a combination at so low a price that some other person who cannot afford to sell it so low must go out of the business. A complaint is made, an investigation takes place, and the Judge may say, “ You must carry on your operations only in such a manner as to allow this man to make a reasonable profit, and you must therefore charge a certain price.” It seems to me that, having regard to their natural advantages, the amount of capital invested, distance from the market, and other things, what would be equitable as between the various competitors would in itself be detrimental to the public.
– Not necessarily.
– And would operate in restraint of trade.
– It would operate in restraint of trade, but would not necessarily be detrimental to the public.
– I hold that the coal vends in Newcastle have always carried on their business in a reasonable and legitimate way. Going back for twenty years, I cannot recollect that they ever put the price of coal up to an excessive figure.
– Because they could never get it.
– That is so, they could never get it.
– Would any jury find against them on present facts?
– I do not know; I have no idea.
– Does the honorable member think so?
– I know that the conditions of the industry are so unequal that one would never know what the decisionmight be.
– It would depend on what State the jury came from.
– That is not the Federal spirit.
– The whole Bill seems to me to duplicate the machinery of the Arbitration Court, except that the machinery is extended a little. Why a vend which is carrying on operations in a reasonable way, and securing fair prices to the industry, fair remuneration to the employes, and fair rates to the consumer, ‘ should be indicted at all, except for good cause shown, it is difficult to understand.
– There would be cause shown, would there not?
– No; the fact that there was a commercial trust would be sufficient.
– Some person must take action.
– All that has to be said is that there is a commercial trust, and then its affairs must be investigated.
– Does the honorable member think that the Attorney-General would act without some reason ?
– The AttorneyGeneral must act if the trust is brought under his notice, because the Bill directs him to do so.
– Not unless the AttorneyGeneral is satisfied there is some reason for proceeding.
– Under clause 11 the Attorney-General may take action without waiting for the trust to be brought under his notice.
– Surely the AttorneyGeneral would require some evidence beyond a mere assertion?
– What I have said is precisely what the Bill directs; a commercial trust must be indicted as a trust.
– No; the Bill says nothing of the sort.
– That is my reading of the Bill. I venture to say that a competitor would at any moment jump at the chance of uncovering all a rival’s operations by having inquiries made into the composition of his capital and the relations of his trade generally. Many trading operations are successful simply because of the knowledge gained as the result of long years of experience as to the best time and way of placing a product, and of all the thousand and one things which make up the difference between success and failure in trade. Are those matters to be open to public investigation before a jury, simply because they happen to exist under a combination of this kind? But what I desire to emphasize more particularly is the fact that this agreement - limited as its operations are, and confined to almost a single matter, namely, the fixing of the. price of the product - is to be regarded as constituting a trust which must be indicted as such, the operations of which are to be subject to close and! keen scrutiny and investigation, and as to which a Judge may say what price is to be paid for the product, and what wages are to govern the industry. I say that that is not repressing trusts; that is running their business; and therein lies the distinction. If we are to run businesses for people in order to repress trusts, it seems to me that the time for nationalization has pretty well come. People will not themselves take the responsibility when a Judge and jury may de- termine the conditions of their business - determine what price shall be paid for the product, and what wages shall be paid. When we reach that point we are not far off the wisdom and logic of the nationalization of industries.
– I thought the honorable member was in favour of regulating trusts ?
– I am.
– How does the honorable member propose to regulate trusts, seeing that he is against every proposal to that end?
– I am not in favour of tinkering and interfering unnecessarily with industries such as I am speaking of, because I do not regard them as destructive monopolies or trusts. These combinations are in existence, and the prime effect of them is to prevent sweating and unfair competition.
– There will be nothing done to them while that is so.
– And yet because these combinations are in existence for a legitimate purpose, and doing this work, and no other, they are to be haled up and have all their affairs investigated.
– How can we regulate trusts, or find out whether they are doing the proper thing, without haling them up ?
– Is every honest individual in the community to be haled up in order that there may be an investigation as to whether he is a thief? Is that the doctrine of the honorable member?
– The honorable member admits that this vend is a trust or agreement in restraint of trade.
– The honorable member for Bland is advancing the same theory that he lays down under the Immigration Restriction Act, namely, that every man who makes an agreement in London shall first of all lodge it in an office, and have it investigated and approved by the Minister at this end before he is allowed toland.
– Is the honorable member prepared to allow people into Australia under contract without limitation?
– No; I would attach a penalty to wrong-doing, and that is quite sufficient.
– How can we ascertain wrong-doing ?
Mr.JOSEPH COOK. - How is it ascertained generally?
– By investigation; and that is what the honorable member is objecting to.
– I must remind honorable members that we are in Committee, and that they can speak just as often as they think proper ; but with the continued interruptions we can hardly understand what the honorable member for Parramatta is arguing.
– According to the logic of the honorable member for Bland, the police ought to bail him up when he leaves his place, and ascertain whether he is a thief or vagabond.
– The police have power to do so.
Mr.JOSEPH COOK.- I am aware of that : and the honorable member for Bland’ would have his remedy afterwards.
– Quite so.
– But there is no remedy under the Bill.
– There is no remedy, against the Crown in any case.
Mr.JOSEPH COOK.- There is no remedy in this case. After the agreement has been investigated in Court, no matter what the consequences may be, there is no remedy.
– But the Crown has to prove the guilt.
– This is not a matter of proving guilt; it is a matter of haling the business of a trade, or company, or combine, before the Court, and no matter how legitimate the operations may be, there must be investigation in the light of day. I take it that an investigation of the kind could not be carried on without the chance of the trade ramification and secrets becoming public knowledge, and of that knowledge being made available to trade rivals, who may have set the machinery of the law into operation. If the detriment of the public is obviously to be looked to, and there is anything wrong going on, then by all means indict the trust, indict the agreement, and indict the company.
– How can we, in the first place, find out whether there is or is not wrong ?
– The public generally know when they are paying more than a fair price for an article.
– Some one besides the public must decide the question under the Bill.
– I know that, and it is time to take action when the pub- lic begin to cry out.
– That is all that will be done under the Bill.
– I intend to move an amendment in that clause when we arrive at it.
– I am very glad to hear that from the Minister, and, under the circumstances, I have nothing more to say.
– I know something of the question on which the discussion seems to foe concentrated, namely, the vend in relation to the production of coal at Newcastle. Under proper circumstances, I do not think that the vend would come within the scope of the Bill.
– The Attorney-General says that it would.
– I think that the Attorney-General said that it would not. So long as I remember, coal has been sold at Newcastle at a lower price than, perhaps, has coal of the same class in any part of the world. The miners are paid according to the price obtained for the coal ; so that, when the price is very low, wages are very low. On one occasion there was a threatened strike, and I was called in to arbitrate between the employers and the miners. The question to be decided was that of the vend, some employers having broken away from the vend, and enabled coal to be sold at 8s. per ton or less.
– Much lower than that.
– It has been sold at a less price than that recently.
– I have known the coal sold at 3s.10d. in Lithgow.
– At the time of the threatened strike, if I remember rightly, the price was about 8s. I shall not mention names ; but this was done by one set of owners. By acting as arbitrator, I was given an insight into the methods of the vend, which, since, has been useful in many ways. Coal was then selling at too low a price, and the men were getting too low a wage; and the object of the vend was not to make the price excessive, but to make it fair. As mentioned by the Attorney-General this evening, when speaking of the American law, if the price be a fair one the combination does not come within the scope of the Bill.
– Who is to decide whether the price be fair or excessive ?
– A jury.
– Action can be taken by any one.
– I am coming to that point. As honorable members may remember, I, on two occasions, tried to pass an Inter-State Commission Bill. One of the main reasons for that Bill was to deal with the shipping ring, which makes the price of coal so high in the southern States.
– Coal is cheaper in Victoria than in New South Wales.
– Just now it is.
– At the time of which I am speaking, the price of Newcastle coal in Victoria was as high as 32s., although it was delivered on board at 8s. per ton. The effect of the Bill will be, not to increase, but to decrease the price of the coal to the general public, because the provisions will affect the shipping combine. The result of the measure will be a reduction of freights, and it is that of which the shipping combine is afraid. The effect of the Bill on the vend will be to afford employers a fair price, while giving the people of the southern States a cheaper rate for the coal.
– That will not affect the oversea trade.
– I am only speaking so far as Australia is concerned. We are not considering Japan or other countries; we consider only how it will affect the people of Australia. I am endeavouring to show that the effect of the Bill, so far as it concerns the vend, miners’ wages, and the shipping combine, will be to reduce the price ofcoal in the southern States, and therefore it must be for good.
I have felt all through - and I have had one or two conversations with the AttorneyGeneral on the point - that clause n leaves al loophole for speculative actions, .and, perhaps, for black-mailing. When we reach that clause I shall, as I have intended to do, suggest that action shall not be taken without the concurrence of some person, who, I think, ought to be the AttorneyGeneral. At any rate, there should be some person to say whether there is reasonable justification for bringing an action, so as to avoid exposure to speculative proceedings or black-mailing.
– Why not have a penalty for failure to show justification ?
– I am now merely intimating to the Committee what I intend to do, and I hope honorable members will ,consider the suggestion. I shall confer with the Attorney-General, and be ready at the proper time to propose that some person - who, in my opinion, ought to be the Attorney-General - shall be empowered to say whether there is good cause for action. If the clause were left as it is, I feel sure that it would give rise to a good deal of trouble” at the hands of two sections of the public - the speculative section and the black-mailing section - and might do much injury to persons against whom no proceedings ought to be taken.
. The honorable member for Parramatta would have us believe that so soon as the measure becomes law all combinations declared to be trusts will be brought before the Courts; but I do not think that anything of the kind will happen. My fear is that the Attorney-General or other persons required to take action will need too much persuasion, even when a real injury is being done to the public. I should be opposed to rushing every one to the Courts where that was unnecessary, and am glad that the Minister of Trade and Customs intends to amend clause 1.1, because, as I pointed out when speaking on the motion for the second reading, as it stands at present it offers an inducement to persons to go to law in the hope that they will recover treble damages. Those who are opposed to the Bill should1 suggest amendments to get rid of the difficulties which they are trying tto create. If they can show that the Bill will operate injuriously to persons in business who are not acting to the detriment of the public, I will support them; but stronger argu ments than I have yet heard will be necessary to move me.
.- I am glad that the Minister of Trade and Customs! proposes to amend clause 11, because, as it stands, it is likely to be brought into operation by interested persons for the mere purpose of harassment and persecution of rivals in trade. I understand the Attorney-General to admit that the vends to which reference has been made would come under the definition of commercial trusts.
– The honorable member must not forget that it is one thing for a vend to come within the definition of a commercial trust, and another thing for any agreement that it may make to come within the scope of the measure.
– I take it that the fact that they are combinations in relation to trade and industry having a certain purpose will bring them within the definition of a trust, although the effect of their agreements may not be detrimental to the public, and may have for their object the prevention of sweating, and the payment of fair rates of wages.
– The vends may come within the definition of trusts, but their agreements, if as stated, would not be obnoxious to the measure.
– Would it not be better to omit paragraph b, relating to agreements ?
– That paragraph relates, not to the agreements made by combinations, but to the agreements by which they are constituted.
– The honorable and learned member for Angas has pointed out that the term “ commercial trust “ is not clearly defined in this clause. It is said to “include” certain things.
– -There is a drag-net interpretation.
– Yes. There seems to be no actual definition at all. The term “ commercial trust “ is said to include certain things.
– There is no other such combination conceivable.
– Let the honorable member put a case. If there is any other, it should be included.
– I dare say that I could put a case, if I set myself to do so. At any rate,. I can conceive the possibility of a commercial trust including other combinations than those set forth here. But if the Minister contends that no other combination can exist than those referred to as being “ included “ in this clause, then his contention simply clinches my argument infavour of substituting the word “ means “ for the word “ includes.” If “ commercial trust “ is a term meaning only the combinations specified here, the word “ means “ should be substituted for the word “includes,” and I therefore move -
That the word “ includes,” line 3, be left out, with a view to insert in lieu thereof the word “ means.”
.- When speaking 011 the motion for the second reading, I referred to the coal vends which have been mentioned so often this afternoon, and to another commercial arrangement which, it seems to me, would come within the definition of a commercial trust. Some years ago - it may still be in existence - a Board, representing the dairying industry of New South Wales, of whom the honorable member for Cowper was once a member, used to meet from time to time to regulate the price of dairy produce. Before the Board was created, prices in the industry were very low, but the operations of the Board enabled producers to obtain a fair return for their enterprise without requiring the public to pay unreasonably for the produce which they consumed. But it appears to me that the Board I speak of would come within the definition of a “commercial trust.”
– Even if it did, what harm would be done?
– If it did, it would be liable to be proceeded against at the instance of the Attorney-General, under clause 10, or of any busy-body who imagined that he might be injured, under clause 11.
– Only if it did something wrong. A trust, in that respect, will be in a position not differing from that of an individual.
– The Minister of Trade and Customs has indicated his intention to amend clause 11 so that proceedings shall not be taken under it except at the instance of a responsible person, and suggested the Attorney -General.
– The Minister indicated that he intends that practically neither civil nor criminal proceedings shall fake place without the consent of the AttorneyGeneral.
– On what grounds would the Attorney-General interfere? Would he act merely on the statement of some informant, or would he constitute himself a Court, and make full inquiries before initiating proceedings?
– It is an every-day occurrence for an Attorney-General to be asked to lend his name to the initiation of proceedings. There are many Acts under which his consent to proceed is required.
– I am aware that that is so. My object in rising is to call attention to the position of certain combinations in regard to this Bill.
– In my opinion, the coal vends to which reference has been made come within the definition of a commercial trust, because, not only do they regulate prices, but they also deal with the output of the mines. The vend also makes arrangements under which each colliery is permitted to ship only a certain quantity of coal. An arrangement of that kind would certainly come within the definition of a commercial trust. I can remember the time when certain mine-owners who were outside of the vend were actually giving higher wages than those paid by the parties to the vend, and at the same time selling their coal cheaper.
– When was that? I never knew of it.
– Nine years ago.
– There was no combination among the mine-owners then - there was no agreement in force at Newcastle for years.
– There was a tacit understanding among certain coal mine-owners to keep up the price of coal, and, at the same time, not to pay any more than a certain rate of wages. It seems to me that any body of men who regulate not only the price of a particular commodity, but also the output, must be regarded as a commercial trust. I do not think that the provisions of the Bill would apply to the board which fixes the price of butter in New South Wales. That board merely regulates the price of butter according to supply and demand. They sell the butter at a price which will enable them to retain the local market, and, at the same time, to obtain the last farthing from the consumer. All that is regulated by the law of supply and demand. There are, of course, persons who do not work under the control of the board, and who are always fighting against its determinations. Sometimes they declare that the price shall not be raised above a certain figure. If they prove to be right the board has to come down to the outside quotations. I do not think that such a board could be brought within the scope of the Bill, because long before any grievance could be dealt with the cause wouldhave probably ceased to exist.
.- I disagree with the honorable member for Cowper. I think that a combination such as he has indicated in connexion with the butter trade would come within the scope of the Bill. From time to time we have had combinations among tillers of the soil, who have been compelled to form trusts in order to secure a remunerative return for their labour. For instance, there is the Mildura trust, which fixes the prices at which the products of that irrigation colony shall be sold. Mildura is the only place at which certain products are grown to any great extent, and the trust practically commands the whole trade of Australia in those commodities. Every year they fix the prices, but they know that if they do not sell their goods at a reasonable figure, they will be swamped by the introduction of Californian fruits, which can be produced at a very much lower cost. Frequently, when the harvest has been bountiful, the price of wheat has fallen to as low as1s. 6d. or1s.9d. per bushel. We know that it is impossible for agriculturists to make wheat-growing pay if wheat realizes much less than 3s. per bushel, and it is quite possible that there may be a combination among the wheat-growers with the idea of pooling their produce, and declining to sell it for less than a certain price. I should like to know whether such an organization would come within the scope of the Bill? In the United States it is customary for the farmers in some districts to place the whole of their produce in the hands of one firm or company for sale at a uniform price. I am very strongly opposed to any restrictions of the character contemplated by the Bill being placed upon the tillers of the soil. They have sufficient troubles to cope with, and should be left free to manage their own business in their own way. I should like to hear the opinion of the AttorneyGeneral as to the two cases I have mentioned.
-Ifa combination of farmers or of any other class of the community agreed that they would not decide prices for themselves, but would leave it to the Board or trust - if they willingly surrendered’ their free choice and personal judgment, and agreed to be controlled by the majority - they would come within the definition of a commercial trust. It would hot follow, however, that the determination to hold their produce for a certain price would bring them within the scope of the Bill.” Although they might be a commercial trust within the definition contained in the Bill, a mere agreement that during a certain season they would not sell their produce for less than a certain price would not make them amenable to the law. If such a combination did fall within the definition of commercial trust, the question would arise whether the price they had. resolved! to ask for was a fair one - fairly remunerative to them. If the price fixed upon were fair, there would be no harm in such a combination, and the agreement would not come within the scope of the Bill. If a combination were entered into with the. object of fleecing the public - and it is not likely that any combination of farmers would have such an aim - it would come within the scope of the Bill. There is no. reason why farmers or any other section of the community should be permitted to work harm to the general public. Every one wilt have to be placed in the same position in, that regard.
– If a number of commission agents engaged in the sale of wheat met once a week to fix the selling price, would” they render themselves amenable to the law ?
– -The question of restraint of trade might be involved in such a case. I should like the honorable member for Echuca to understand this. The definition of “ commercial trust “ would not in the slightest degree affect the cases that he has put forward. If the definition now in the Bill were excised, the question would still arise under clause 4, as to whether the agreement was in restraint of trade to the detriment of the public. That question would arise whether certain action was taken by a commercial trust or by individuals. When we come to consider the question of restraint of trade, private individuals, as well as corporations, may be brought within the scope of the Bill, irrespective of whether they are acting- separately or in combination. The only case in which the question of a commercial trust enters into consideration is when it is desired to make out a prima facie case of unfair competition. In the cases mentioned by the honorable member for Echuca the question of unfair competition would not arise. It would be a question of restraint of trade to the detriment of the public.
– Would there not be a monopoly for the purpose of keeping up prices?
– Possibly, but that question would have to be dealt with, irrespective of the definition of a commercial trust. The provisions with regard to restraint of trade and monopoly apply equally to separate individuals or members of a trust or other combination.
– The more this question is debated, the more clear it becomes that the provision is not nearly so simple as was indicated by the Minister. There can be no question that in view of the very facts that have been put forward by the honorable member for Newcastle, a coal vend would come within the definition of a commercial trust in the same way as would any of the large American trusts. I do not mean to say that the owners of the Newcastle mines have attempted to exploit the public to the same extent as have the trusts in America, but the reasons for their combination are exactly the same as those which have led to the creation of the trusts in America. One question which will always receive a large amount of consideration in dealing with these matters will be the wages paid to the employes. It is well known that Rockefeller is’ the best employer in America, and that the strength of the Standard Oil Company is due to the good wages and the liberal terms that it gives to its employes. It is desirable that the coal mining at Newcastle shall be carried on under such conditions as to insure the payment of good wages to the miners, but we must look first to the interests of the consumers of coal. If it could be proved that there was a combination of coal-owners with the object of unduly raising the price of coal, the trust or organization should be brought within the operation of the Bill. Nothing would bear more harshly upon the poorer classes than an undue inflation of the price of coal. We know that some extraordinary tricks have been played - whether by the coal -owners or the shipping companies I cannot say - in regard to the sale of coal. Some little time ago coal was being sold in Melbourne at 17s 6d. per ton, whilst £1 per ton was being asked in Sydney for the same class of fuel.
– The coal-owners do not sell direct to the public.
– I stated that I did not know whether the anomaly was due to the action of the mine-owners or of the shipping ring. In Tasmania we can buy coal - Newcastle coal - as cheaply as it can be purchased in Sydney.
– The shippers always command the trade.
– I do not know who is responsible for it; but certainly, in dealing with monopolies, our first consideration must be the protection of the general public. Whilst we are willing that the coal-owner should derive a fair profit, and that the coal miners (should receive fair play - for, God knows, any man who works in a coal mine deserves to be well paid - we must see that the poorer classes, and also our manufacturers, are protected against an undue inflation of prices. Personally, I am of opinion that to a great extent these matters have righted themselves in Australia. But’ under this Bill, with the amendments which the Minister has circulated, we are about to take the whole of the coal trade out of the hands of the colliery proprietors, the miners, and the consumers, and to place it in the hands of a board. I do think that the operation of the measure ought to be limited to destructive monopolies. Where a combine is not exercising an injurious effect, either upon Australian trade, the Australian producer, or the Australian consumer, we might very well let it alone; but where such combinations are detrimental to the public welfare, we should treat all of them alike. I have always held that a trust is a trust, irrespective of whether it is of a local or foreign character. A monopoly can be just as injurious within our own borders as it can be without them. I am not prepared to grant to a coal combination in Newcastle any more immunity from responsibility than I am to any other monopoly.
.- Concerning the point which has been raised by the honorable member for Echuca as to whether, under this Bill, certain combinations in country districts would constitute commercial trusts, I feel bound to say, upon consideration, that they would. There is one particular body to which reference has been mad?, and which is known as the Raisin Trust. It comprises a number of persons who produce raisins. If these individuals sold their produce in the ordinary way they would get for it merely its export price. They can secure a good price for it only by forming what is practically a trust, and thus securing the full benefit of the duty of 2d. per lb. which is levied upon raisins.
– They do that without inflicting any injury upon the public.
– That is a matter of opinion. Upon this portion of the Bill I have no desire to discuss the question of free-trade versus protection. The manufacturers who have had to pay the duty of 2d. per lb. may regard that impost as a hardship. Whether the action of the Raisin Trust is to the detriment of the public, would, it seems to me, largely depend upon the view entertained by the particular jury which heard the case.
– The case to which the honorable and learned member is referring would have to be decided just the same, irrespective of whether or not the members of that body constituted a commercial trust.
– I am inclined to think that, whether we agree to this definition or not, the combination amongst the raisin producers would still be liable to attack under Part II. of the measure. In America I believe that combinations amongst farmers in a number of States are exempted from the operation of laws which have been enacted to prevent the formation of organizations in restraint of trade. It is felt that their calling is so subject to weather influences, and to disabilities which other industries are not required to face, that this distinction has been made.
– To which State is the honorable and learned member referring?
– I believe that the farmers in Texas are exempt from the legislation which I have mentioned. But I am speaking from memory.
– That is to say, the farmers are exempt from the operation of the Act?
– In some of the States, the farmers are exempt from the penalties attaching to combinations in restraint of trade such as are aimed at by
Fart II. of the Bill. I trust that the honorable member for Echuca will pursue this matter still further, because it is one which is worthy of very grave consideration. I am inclined to think,, with the AttorneyGeneral, that if it is to be dealt with at all, it must be dealt with by a subsequent clause in Part II. of the measure, and cannot be affected by this definition.
.- After the explanation of the Attorney-General, I am satisfied that the agents and the representatives of certain local companies who meet every year for the purpose of fixing the selling values of the commodities in which they are interested, would be affected by this clause, because their actions would be “ in restraint of trade.” But the honorable member forEchuca has brought forward another matter of very serious moment, so far as the producers are concerned. It is well known that in the spring of each year, conferences are held in Sydney, at which large co-operative companies and butter factories are represented. These gatherings fix the selling price of butter. Last year they fixed it at101/2d. per lb, which proved a trifle too high, because that price was not realized. Under the Bill in its present form, these men could be proceeded against.
– What for?
– For charging a price for their commodity which they were not warranted in charging.
– They certainly form a “combination.”
– Undoubtedly. Thus, instead of the persons who are directly interested in the industry fixing the value of their commodity themselves, under this Bill they will be compelled to allow speculators to determine it for them.
– Does the honorable member say that of all business?
– The Attorney-General’s explanation was that the representatives of co-operative companies and of butter factories could not meet for the purpose of fixing values.
– The honorable member misunderstood me. I said that it would be necessary to prove that their’ act was illegal.
– They would be liable to be brought before the Court if they decided to charge higher values than they were warranted in fixing.
– The honorable member has not grasped what the honorable and learned member for Wannon said just now. In the case that he is supposing, it does not matter whether the gentlemen to whom he refers constitute a commercial trust or not. There is no onus of proof in the matter at all. The only question at issue is as to whether what they have done is illegal.
– Of course, it would be difficult to prove that it was illegal.
– The question of whether they constitute a commercial trust is absolutely immaterial.
– The Attorney-General stated that the fact of them meeting together for the purpose of fixing values would bring them under the definition of a “ commercial trust.”
– I am surprised to hear the arguments advanced by some honorable members. The Bill is intended to deal with those who commit offences, and with nobody else. Yet we have honorable members appealing to us to exempt from its operation a certain section .of the community, and to allow them to work any injury to -the public that they choose. It seems to be a popular thing to stand up in this House and demand everything for the farmer. I am just as much a friend of the farmer as is any honorable member in this Chamber, but if there is one principle more than another which characterizes our Constitution, it is that there shall be no discrimination as between class and class. Certainly, when it comes to a matter of right or wrong, I am not going to punish some persons for committing an injury whilst allowing others to escape. For that reason, I do hope that we shall hear no more of the specious reasoning which has been indulged in by some honorable members.
.- When the Arbitration Bill was under consideration, I think that the honorable member for Hindmarsh was one of the strongest supporters of the proposal to extend a preference to unionists. If that was not a* preference to individuals I do not know what it was. . It has always been recognised that in legislation of this character the tillers of the soil should be treated somewhat differently from other classes. The maun object of the Bill is to protect town industries. When the Arbitration Bill was under discussion, the AttorneyGeneral recognised the truth of my contention, and deliberately exempted from its operation certain sections of the community. Consequently it is too late in the day to urge that persons engaged in these special occupations should not be exempted from the provisions of this measure. ] have always set my face against imposing any unnecessary restrictions upon the tillers of the soil, and I shall endeavour to give effect to that principle in connexion with this Bill. At a later stage I intend te move to insert in paragraph d of clause 3, after the word “ trust,” the words “ but does not include a combination of persons engaged in agricultural, horticultural, and viticultural pursuits in relation to those industries.”
– That is an electioneering dodge.
– The Minister of Trade and Customs must not impute motives.
– I think that the statement of the Minister is an unworthy one.
– I have . already called the honorable gentleman to order by telling him that he must- not impute motives to honorable members.
– I was not imputing motives.
– I did not say that the honorable member was imputing motives. I said that the Minister must not impute motives.
– I was expressing the opinion that the Minister had made an unworthy remark.
– I have already reminded the Minister that he must not impute motives to other honorable members, and I cannot allow the honorable member for Parramatta to pursue the same line of conduct.
– I do not exactly know the definition of the term “imputing motives.” I do not know that there is anything wrong in the remark that a Bill has been introduced merely for electioneering purposes. Surely, sir, you do not rule that such a statement is out of order ?
– If the honorable member says that the Bill has been introduced merely for electioneering purposes he is distinctly out of order.
– The honorable member should give it up.
– With great’ respect to you, sir, that is rather a peculiar ruling, and means that one cannot discuss any matter in relation to an election. One of my complaints! against the Bill is that it would not have been heard of just now but for the approaching election. The whole purpose of its introduction is that it may be taken before the electors and made political use of.
– That is not right; the honorable member should not say that.
– I do not suggest that it would be made use of illegitimately. I only impute ordinary political motives.
– Had the honorable member taken that course in the House, he might have been in order to a limited extent ; but we are now engaged in discussing the interpretation clause of theBill, and if he insists upon pursuing that line of argument he will be out of order.
– Since you, sir, put the matter in that way, I have no more to say. It is, I think, a very proper observation to be addressed to me. If there is one section of the community more than another which ought to be exempted from the operation of the Bill, it is those who are engaged in primary industries. Just as they were exempted from the provisions of the union label and the Arbitration Court, so I think they ought to be exempted from the provisions of a Bill which is intended to suppress trusts. How can there be an injurious trust existing in connexion with an industry which embraces the whole Continent within the scope of its operations, and has to find a market in the four quarters of the world?
– How could the Bill hurt it ?
– It might hurt it. What the honorable member is really suggesting is that the Bill is an absurdity in attempting to meet such a condition of affairs as that.
– I understand, sir, that there is an amendment before the Chair, and that it does not bring in the question raised by the honorable member for Echuca. The debate has been taking a wide range, and I hope that we shall dispose of one amendment at a time.
– The clause before the Committee deals with the interpretation of “commercial trust,” and admits of a very wide range of discussion. There are so many ramifications in connexion with the meaning of the term that it is almost impossible to confine honorable members within the ordinary rule.
– But there is an amendment before the Committee.
– Theamendment before the Committee is to omit the word “includes,” with a view to insert the word “ means.”
– All the observations which have been addressed to the Committee for the last half-hour have been made with a view to show that the term “ commercial trust “ should not include simple combinations, such as indicated by the honorable member for Echuca.
– It should not include a corner in wheat or oats?
– The AttorneyGeneral is, I am afraid, talking of something else rather than production.
– That is the legitimate meaning of it.
– The honorable and learned gentleman is talking of a manipulation which takes place in the city ; whereas we are talking of rural industries, whose operations are confined in a bond fide way to the production of primary products. They ought to be exempt’ from the operation of the Bill.
– It does not touch any one who does not do an injury to the public.
– It touches anybody and everybody for the purpose of investigation, of dragging them before the Court and jury, and compelling them, at great expense, to defend themselves. It is all very well for the Attorney-General to say that the Bill will not attach any penalties to persons, except they have done some injury. That is quite true; but the fact that they have to go before the Court in the first place means great expense to them.
– But the Minister has indicated that he intends to put in a provision that nothing can be donewithout the consent of the Attorney-General.
– I should like to know why we should pass any legislation ordering the Attorney-General.
– So do I.
– Will the honorable and learned gentleman, if he can, frame a provision exempting primary producers from the operations of the Bill?
– As Attorney-General, I would be very pleased, at the request of any honorable members on the other side, to put in legal phraseology what they wish to move, although, ofcourse, I might not support their amendment. I am quite willing to help any honorable member with regard to the phraseology of an amendment.
– The honorable and learned gentleman might support the amendment.
– No, because as I say, this Bill is for the protection of the public against any one who tries to injure them by this means, and I would not make an exception in favour of any particular class.
– I suppose that we shall have to be content with that, notwithstanding that the honorable and learned gentleman did make an exception of a particular class when the question of the union label was under consideration.
– Not for wrong-doing.
– The honorable and learned gentleman is being asked now to follow precedent.
– No; that was not for wrong-doing.
– It was for a simple commercial combination! It seems to me that they come into the same category.
– The honorable member for Hindmarsh says that the Bill is intended to prevent anybody from injuring the public. What is injury under the Bill? Really, the honorable member begs the whole question. If successful competition is taking place under the Bill, it is to be regardedprima facie as injury. Even though a new machine should displace an old one, it is to be regarded prima facie as an injury to a particular trade or calling. When the word “injury” is used in the provisions of the Bill, it does not mean an injury in the sense of personal loss or violence. It may mean successful competition and nothing more. For instance, superior skill, or a different machine, or the operation of a patent right, may prima facie be interpreted by the Bill to mean injury, and as such they would be inquired into at great expense, and trouble, the publication of theinternal affairs of a company’s operations, andpossibly the dislocation of their business. The term ac- quires a new meaning as it is used in the Bill. Therefore we have to look to the thing, which may be innocent and simple in itself, as expressed in the terms of the Bill, but which may lead to the dislocation of industries, and to the trouble of persons engaged therein. I cannot conceive of a trust having any beneficial operation on the community which has to seek its markets all over the world, and as to which there is no possibility of an agreement in the sense of a trust such as is contemplated by the Bill. I think that the Attorney-General might leave these people to make their butter and cheese, and bring it to market, in the best way they can, knowing that their simple co-operative enterprise will not be under the surveillance of the State, and that they willbe left unmolested unless it is quite clear to the Attorney-General that they are doing something which they ought not to do.
– That is all we propose.
– That is not what the Bill proposes. The fact that these persons are engaged in a co-operative way is a sufficient reason for the AttorneyGeneral to step in and inquire into their operations.
– I assure the honorable member that he is quite wrong.
– The fact that they are sending their butter to market, and are able, by reason of their co-operative efforts, to dispose of it at1/2d. per lb. less than do others, may be in itself a reason for the honorable and learned gentleman to make an elaborate legal inquiry.
– No. I assure the honorable member that he is not right. The honorable and learned member for Wannon has admitted, on a full consideration of the matter, that I was perfectly correct in that statement. If we were to strike out the definition of a “commercial trust “ it would not affect the position of the farmer. He does not come under that definition.
– But the question of the agreement comes under the definition of a trust.
– It has nothing to do with restraint of trade.
– Restraint of trade is not the only consideration in this matter. We have also to think of unfair competition, or a combination designed to destroy or injure by means of unfair competition, any Australian industry.
– The case which the honorable member put does not fall within that. They are not unfairly competing with any Australian industry.
– I can conceive readily that they might. Does the AttorneyGeneral say that it is not possible to indict the Farmers’ Co-operative Association under the provisions of the Bill ?
– It is impossible to indict them simply because they are a commercial trust, and, as such, are selling their butter cheaply.
– Is it impossible to indict them under the Bill?
– If they do wrong, they are indictable whether they are a trust or not. There is no difference.
– There again the honorable and learned gentleman is begging the -whole question. The simplest operation may be a reason for holding an elaborate legal inquiry. The term “ injury “ has quite a new meaning, as it i» used here.
– It has nothing to do with this interpretation.
.- With singular patience I have sat here waiting to hear a statement as to the Ministerial attitude to the amendment of the honorable member for Lang. Of course, the object of the proposal is obvious to every one, and that is to make the definition of “ commercial trust” as concise as possible. If the Ministry are resisting the amendment - which I presume they are, because, other-‘ wise, it would have been accepted long ago - is it for the reason that they wish the definition to be flexible enough to include any possible arrangement of a trust which would not be included thereunder?
– I have answered that question two or three times already.
– I have been sitting here, but I did not hear, the honorable gentleman’s answer.
Sitting suspended from 6.30 to 7.30 p.m.
– I think the Government might reasonably accept the amendment of the honorable member for Lang. We listened this afternoon to a very able exposition by the Attorney-General of the reasons for the exact wording adopted in this clause. The honorable and learned gentleman went into an historical survey of the trust question in America, and showed that the paragraphs of this clause were intended to meet every known form which, up to the present time, trusts have taken. Paragraphs a, b, and c, he explained, were special provisions enabling the Judge who would have to administer them to meet any further and novel phase of trusts which the ingenuity of those comprising them might suggest. As these provisions are, in the mind of the AttorneyGeneral, fitted to meet every possible phase the trust problem can present, we might reasonably make this an absolute definition clause instead of a mere inclusion clause. The honorable and learned gentleman having removed all doubt on that subject from our mind, the Government might very properly accept the amendment of the honorable member ‘for Lang. With regard to the matter raised by the honorable member for Echuca, on further consideration, I think that the question of whether a combine of tillers of the soil is or is not a “ commercial trust “ under this Bill would not very much affect them. In clause 6 it is laid down that where there has been unfair competition, in which a commercial trust is alleged to be implicated, the onus of proof that it has not been guilty of such unfair (Competition shall rest upon the commercial trust. So far as mere restraints of trade are concerned, the question whether a combination of tillers of the soil form a commercial trust does not greatly affect them. There 19 another point which I think of moment, and to which I direct the attention of the Attorney-General. Without a doubt, under paragraph b of clause 4, a commercial trust is penalized if by unfair competition it injures any Australian industry.
– So is anybody else.
– But my point is that a commercial trust is specially penalized in that the onus of proof that it has not been guilty of unfair competition rests upon it. That is the only offence for which a commercial trust is specially penalized.
– Unfair competition with some Australian industry.
– Just so. The AttorneyGeneral has, so far, met all the’ objections urged before the dinner hour im this regard by saying that it is extremely improbable that an Australian agricultural, horticultural, or viticultural industry can ever come into competition within the meaning of the clause. The point I wish to put is that it is quite possible for an Australian agricultural industry to come into such competition with another Australian industry. If ‘we take, for instance, those engaged in the primary producing industries of South Australia, it will be admitted that obviously they compete for the Western Australian market with those carrying on similar industries in that State.
– Especially in the wine trade.
– In a number of industries associated with ordinary agricultural products. If a number of South Australian farmers combined together to secure cheaper freights for the transport of their produce to Western Australia, they could be indicted under this Bill.
– Not for obtaining cheaper freights.
– Would not that be unfair competition?
– Farmers do not carry goods, do they ?
– No, but they can combine to get cheaper freights.
– That would not bring them within this Bill.
– I am not stating a definite opinion, because I am only a layman, who is trying hard to find out what would be the effect of this Bill. It seems to me that what I have suggested would bring those farmers under this Bill.
– We may take it that a combination of any persons would make them a commercial trust.
– No; not in that bald way.
– They would not need to be a “commercial trust” to come under the provisions dealing with injury to Australian industries.
– The question is whether or not these persons would be affected by being included in a commercial trust, and so being penalized by having the onus of proof thrown upon them that they had not been guilty of unfair competition.
– Only as to that one point.
– Only as to that one point. What 1 wish to make perfectly clear now is that any combination can be held to be a commercial trust.
– No; only certain combinations.
– “ Any combination of separate and independent persons, whose voting power or determinations are controlled by an agreement.” A combination of persons in the agricultural industry agree to send by one line of steamers on the consideration that extremely low freights are quoted by that line. They are obviously held to be a commercial trust bound by an agreement.
– I am aware that that is not what the Attorney-General desires to do, but the Bill as it stands would enable any one else to do it.
– No; such a thing would not be dealt with by this Bill at all.
– It might not be dealt with if the Attorney -General were to continue in his present office.
– It does not come within the Bill at all.
– It presents a very solid difficulty to my mind, and, I think I may say, to the minds of a number of others. Under this interpretation clause, if any persons combine, and they have an agreement binding them, they form without doubt a commercial trust. No one will dispute that. If a combination of farmers such as I speak of made an arrangement with a shipping company for the cheap transport of their goods to Western Australia to compete in the markets of that State, the farmers of Western Australia would be up in arms at once, and would say that it was highly unfair that the company should make such an agreement.
– Such an agreement would not be within this Bill:
– Would it not if it were done to compete with an industry in Western Australia?
– How could it? Under what portion of the Bill wouldhe agreement come?
– Its alleged design would be to destroy or injure by means of unfair competition an Australian industry. Could it not be alleged against the parties to such an agreement that the design was to injure an agricultural industry in Western Australia.
– But where is the unfair competition.
– Must not a jury decide that question?
– What competition is there? The getting of cheap freights would not be competition.
– They would be putting the farmers in Western Australia at a disadvantage.
– And the fruitgrowers also.
– In many different branches they would be competing with kindred industries in Western Australia. But I submit a concrete case where we know that competition exists to-day between South Australian and Western Australian farmers in the markets of Western Australia.
– There is great rivalry now between them in the growing of grapes for the production of wine.
– There is competition in many directions.
– But what the honorable member suggests is quite impossible.
– I do not see that it is, under this Bill.
– If the honorable member will allow me. Farmers who combine for such a purpose do nothing unfair in their trade ; they simply ask some one else to carry their goods at a low rate for them.
– Suppose they combine to compete at low rates?
– Or to take a low price.
– Or to take a low price in Western Australia.
– That is another matter.
– Well, that would be a combination, which would bring this commercial trust, composed of tillers of the soil, under the Bill.
– If they combine to take lower prices than the Western Australian farmers demand in their own market, why should not the Western Australian farmers be protected?
– I am afraid that the AttorneyGeneral does not follow me exactly. It might not be to the disadvantage of Australia that they should sell their goods cheaply to the people of Western Australia. Besides, that is opening up another issue, which might be better dealt with when we reach another clause.
– That is what I would wish, but the honorable member is opening up that other issue.
– No, I am dealing entirely with the question of commercial trusts, and whether a combination of agricultural employers, as a commercial trust, could affect agricultural interests in Australia.
– It cannot.
– I think that the point I have put before the Attorney-General is a serious one, and for my part I must say that the honorable and learned .gentleman has by no means satisfied me that the case I have put before him is not one which merits his consideration.
.- My; difficulty in connexion with this definition of a “ commercial trust “ is that unlesswe have continually beside us some one of the capacity of the Attorney-General weshall be unable to correctly interpret this measure. We have accepted the principle that it is desirable to prevent anything which is to the detriment of the public interest. But the Attorney-General, notwithstanding his explanation, must see that those who are likely to come under this clause are being placed in a position of very serious perplexity. I feel that it must be recognised that there are combinations which are perfectly just and legitimate, and really for the public good. Many suchhave’ already been referred to, but I think no one would undertake to say when such combinations will not be infringing the limitations and restrictions imposed upon them by this clause.
– No harm will come to combinations because they Happen to come under this clause. It does not impose any liability upon them.
– I have heard the AttorneyGeneral say that this clause is only an explanatory and definition clause, but I respectfully submit that under other measures a very great deal has been found to depend upon the definition of such a term as a “commercial trust.” We know that, under the operation of the Customs Act, the interpretation of certain expressions gave rise to a very great deal of unnecessary trouble, and I say, with all respect, that the Minister of Trade and Customs at that time could have helped the community greatly by some practicable application df the provisions which caused the trouble. I submit that representations which are made by members of the Committee, should receive consideration to the extent that inthe clause there ought to be a declaration, specific and clear, that combinations which at present exist, and which are not harmful and not in restraint of trade, but really necessary for effective working, shall be excluded. Such combinations are not. ex: eluded by the Bill, everything being brought within this sort of octopus clause and subsequent clauses. I hope the Minister recognises that the Committee desire to deliberately go through* the clauses, with a view to making this a workable measure, which will achieve the primary purpose and object in view, namely, the restraint, by methods which shall be determined by this Committee, of any combinations against the public interest. I know the Minister .will tell me that the Bill does provide that where a combination is not harmful it shall not be interfered with. But the measure starts out with this declaration against all combinations - against combinations which, as we have had illustrated to-night, are in many cases necessary. I hope that Ministers will not take up an attitude of opposition to suggestions by honorable members, but will treat all their representations as being made in good faith. In saying this, I am speaking for myself, and1, I believe, for honorable members generally. The principle of the Bill having been accepted, we desire to produce a measure which will not alarm people interested in combinations for mutual benefit and interest. The amendment proposed by the honorable member for Lang is, in my opinion, a justifiable one, and I ask that it shall receive consideration at the hands of the Minister in charge of the Bill. The honorable member for Echuca has suggested that the measure shall not apply to the primary industries, and I should be very glad to see that suggestion acted upon.
– Does the honorable member mean that primary industries shall be exempt from the dumping clauses, so that we may have wheat dumped in here?
– There is no fear of that, in view of the Tariff.
– I ami not speaking in any spirit of hostility, but with an earnest desire that every consideration shall be given to the clauses, now that we are going through them line by line. We have the words, “ ‘ commercial trust ‘ includes a combination.” and then follow details; and the definition not only includes those combinations which are named, but contemplates others beyond.
– ‘Can the honorable member conceive of any others?
– I can conceive of all sorts of complications and restrictions.
– Can the honorable member conceive of any commercial trusts besides those mentioned?
– If the Minister desires to have a limitation, and make the clause clear, why not accept the suggestion which has been made with that object?
– Are there any commercial trusts besides those named?
– There are trusts which we all must admit are arranged and organized for perfectly proper purposes.
– They will not come under the Bill.
– Then let that be clearly stated.
– If an indictment is made, the question most be tried whether or not a combination is for a good purpose.
– I shall not allow myself to be led into suggesting that the Minister who will have the administration of this measure will necessarily always be looking out for some means of creating trouble and’ difficulty. I do not think we have any right to suppose that any “Minister would take up such a position ; but still, the power is there, and under pressure which may be brought to bear, a Minister or his officers may take action, which is permissible under the measure, to the great disadvantage of enterprise and effort which are perfectly justified. I understand that the Minister in charge of the Bill, and also the Attorney-General, have agreed that the holder of the latter office shall be consulted before action is taken, thus providing the safeguard presented by the consent of two Ministers of the Crown. We are now engaged in the very arduous and serious work of putting this Bill into workable shape, and I ask Ministers to recognise that honorable members on this side are making an earnest effort to give effect to the general principle underlying it, and to prevent pernicious trusts getting hold’ of this community.
– And, therefore, (he honorable member would exempt one class of the community, no matter how pernicious their combinations might be ! That would be class legislation with a vengeance !
– I do not see the possibility of such a combination.
– Then, in that case, the Bill will not affect the class referred to.
– I resented what my friend the honorable member for Echuca said when he differentiated between the cities and the country in connexion with ‘the possibility of the formation of trusts. I do not think there ought to be any discrimination ; but combinations amongst farmers, as farmers, seem to me to be impossible.
– 5?ut the honorable member sees that farmers are not penalized because they combine ; they are just like other members of the community, and only penalized if they do something wrong.
– I rose chiefly to say that I think the amendment a very fair one. The word “includes” means that there is something beyond, and we are quite justified in asking the Minister in charge of the measure to substitute “ means.”
– I have said before that we decline to do so. If there are any other combinations besides those named, it is right that they should come under the Bill.
– It would appear that the Minister of Trade and Customs takes up the exact position that I take up, namely, that th’ere is something beyond what is named in the clause. The honorable gentleman will pardon me for suggesting that that is surely contrary to what the AttorneyGeneral has said. The latter gentleman, I understand, a moment or two ago said that there is nothing beyond what is mentioned in the clause.
– No, I did not ; I asked the honorable member for Kooyong if there were any others.
– But, inferentially, the AttorneyGeneral conveyed the idea that there was nothing beyond.
– If there is nothing beyond, no one can suffer ; but if there is something beyond, then it ought to come under the Bill.
– Then the AttorneyGeneral is in the position of saying that there are other combinations beyond those mentioned.
– I beg the honorable member’s pardon. What I say is that if there are other combinations! they ought to come under the Bill.
– Then I apologize. I have always felt that it is most difficult for a Committee to attempt to re-draft a Bill of this complex nature; but the responsibility is on us to try to do so. That is one of the reasons why I support the amendment of the honorable member for Lang asl a desirable improvement to the Bill. Personally, my effort will be to make this a workable measure, and I do not offer these remarks for any mere purpose of obstruction. I have already said that I am very sorry the Bill has been introduced, because the necessity for it does not exist in the degree the Minister of Trade and Customs fears.
However, I do not wish to travel over that ground, which was covered on the second reading.
– As the word “includes” remains, may I suggest that the words which follow may be shortened, and thus made clearer? The clause says - “ Commercial Trust “ includes a combination whether, wholly or partly within or beyond Australia, of separate and independent persons (corporate or unincorporate)…..
As the word “ person “ includes a corporation, according to the clause, I do not see much use in saying “ corporate or unincorporate,” nor do I quite see the meaning of “ separate and independent persons.”
– I explained that this afternoon, but I shall do so again.
– I was not aware that the Attorney-General had explained the matter. My idea is that the clause should read - “ Commercial Trust “ includes a combination, whether wholly or partly within or beyond Australia, of persons whose voting power or determinations are controlled or controllable by……
I never interfere in drafting beyond making suggestions.
– The importance of the words “ separate and independent “ is great, because they make it clear that the combination referred to is not a mere combination of persons in a firm, or persons who are members of a corporation - that is., are not separate and independent persons for the purpose of business - but, following on the line of the American decisions, are persons - including in the term independent firms and corporations - who are separately and independently carrying on business on their’ own account, and are yet combined. It is to exclude the ordinary firm.
– If the Attorney-General thinks the words essential, I withdraw my objection. Does he consider the words “corporate or unincorporate” necessary ?
– I think that the honorable and learned member is right in suggesting that they ‘are unnecessary; but if he will allow them to stand for the present, I shall consider the matter further.
.- I suggest to the Attorney-General the propriety of omitting the words “ the creation of,” in paragraph a. The mere creation of a trust- cannot have any prejudicial effect.
If the words were omitted, the definition would read - “ Commercial Trust “ includes a combination . . whose voting power or determinations are controlled ot controllable by a trust as understood in equity.
– I appreciate the honorable member’s point ; but the word “ trust “ is used in the clause in two senses. The “commercial trust “ means a body of persons, whereas the “trust” referred to in paragraph a is the legal relation in which these persons stand to one another, and “ the creation of a trust “ means the creation of an equitable relation between them.
– Would not the word “existence” be better than the word “ creation “ ?
– I have used words which are to be found in certain decisions, and think it better to keep to them. The word “ trust “ in paragraph a means the confidence or equitable relation existing between the body of persons making up the commercial trust, and trustees are mentioned in the following line. It is by the creation of this equitable relation that the control arises.
– The clause defines a commercial trust as a combination whose voting, power and determinations are controlled or controllable by an agreement. How will that provision affect the vends to which reference has been made this afternoon, which are arrangements whereby the voting power or determinations of certain companies are controlled or controllable for certain very limited purposes ?
– They may be affected by paragraph b, but not by paragraph a.
.- Does the Attorney-General think that the definition of a commercial trust embraces an ordinary trade union, whose “ voting power or determinations are controlled or controllable ‘ ‘ by the, ‘ 1 creation of a board of management or its equivalent “ ?
– No. In the case of a trade union, the voting power or determinations of the constituent persons of the union are not controlled by the creation of a board of management any more than are ordinary shareholders in respect to their voting power by the creation of a board of directors.
– Ir; the case of the vends, to which: reference has so frequently been made,, individual companies act independently, except so far as they are affected by the arrangements of the vends regulating the prices of their products, upon which prices the Arbitration Court bases its awards as to wages. Are not those instances of separate and independent persons whose voting power or determinations are controlled or controllable by an agreement, and therefore commercial trusts within the meaning of the clause?
– Probably : though I do not care to give a definite opinion just now.
– Then I move-
That paragraph b be left out.
I can understand the Bill interfering with a commercial trust which affects all the operations of the companies of which it is composed, but I do not see why we should attack combinations formed under a simple agreement for the one purpose of fixing the price of a commodity so long as no one is injured.
– If the price fixed were too high, would not the action of the combination be detrimental to the public ?
– Yes; but even if paragraph * were left out, it would still be possible under the Bill to deal with such a case. I do not think that we should interfere with co-operative arrangements of this kind, which an experience of twenty years has shown/ to be absolutely harmless.
– The remarks of the honorable member for Parramatta remind ‘ me of a criticism which occurred to me when looking over the Bill, and that is that a commercial trust may include a combination which has nothing commercial in it. It is not provided that the combination shall be a combination for commercial purposes. Therefore, if a number of sports clubs formed an association, and adopted the rule that their delegates should vote in a certain way, I think that that association would come within the meaning of the words “ commercial trust “ as used in the clause.
– Even if it did, what would happen ?
– It is not expedient to make the definition so wide that it may include an association of football clubs. I know that.it is very, difficult to define a commercial trust, and Ministers are probably more conscious of the difficulty than we are; but I desire, if possible, “to include in this term only combinations such as are aimed at in the Bill. That is especially necessary, inasmuch as the punishment of imprisonment is provided for the commission of certain illegal acts by trusts. The delegates of a number of clubs to an association might be under an agreement to vote as instructed by their clubs.
– I think that the case which the honorable and learned member wishes to put is that of a number of clubs voting as instructed by their delegates.
– In my opinion, the honorable member for Parramatta, in moving the omission of paragraph b, has shown that the provision is open to the objection which he has taken.
– How could a football club act to the detriment of an Australian industry ?
– It could not do so.
– I think that it might ; but I am not now dealing with that aspect of the question.
– The definition is meaningless except as it affects subsequent clauses.
– We must take one step at a time. Clause 6 provides that unfair competition is to mean “competition which is in the opinion of the jury unfair in the circumstances,” and “ shall be deemed to be unfair until the contrary is proved, if the defendant is a commercial trust.” When it is seen how the definition of a commercial trust applies also to the anti-dumping provisions, and that it is made easier to prove a criminal offence against a commercial trust than against any other body, it must be apparent that we should not make the definition so wide as to include combinations in regard to which there is nothing commercial. It is quite true that if you go further and endeavour to prove that the members of a commercial trust are criminal,you will experience some difficulty, but the difficulty will vanish if you can once prove that a combination is a commercial trust. It may be said that a football club is not a commercial trust, and that no one would attack it on that ground ; but I am not at all sure that there is not some flavour of commercialism about even football clubs. I wish, however, to go as far as I can to protect football clubs from the menace of the Bill, because I think that the Minister of Trade and Customs ought to hold his hand where such institutions are concerned. There is very little doubt - as the Minister would, I am sure, proclaim from the platform - that football clubs confer very great benefits on the community, and I am satisfied that the Minister has no sinister designs upon that branch of sport. Speaking seriously, I would appeal to the Minister, who has great sympathies with sport, to so frame the definition that it will not embrace within its octopus-like tentacles innocent football clubs. I do not think that he has the least design upon such institutions. I submit that the definition should be altered, but I would ask the honorable member for Parramatta not to persist in endeavouring to strike out the words “ an agreement.” I think that that would be going too far. I suggest that we should leave it to the AttornevGeneral to carefully look into the matter, and to limit the definition, which at present is altogether too wide.
– Does the honorable and learned member think that the class of agreement spoken of by the honorable member for Parramatta should be exempted from the operation of the Bill ?
– No, I do not. I have not addressed my remarks to that class of agreement, but- the honorable member’s observations reminded me that the definition was too wide.
– I think that the honorable and learned member is right in saying that this is a very wide definition. But it is intended to be wide. It is no wider than the definition of the word “ person.” It is merely a definition of certain combinations of persons, whoever they may be - I do not care whether they are football clubs or bridge clubs, or skating clubs. If they combine in this way, they are commercial trusts, within the meaning of the Bill, but they are outside the limits of the Bill, so long as they do not enter into combinations such as are aimed at by the measure, namely, combinations in restraint of trade or commerce to the detriment of the public, or with the design of destroying Australian industries by unfair competition. We want to make this definition as wide as we can, but when we come to strike at the particular form of abuse which it is intended to prohibit, we limit the scope of the Bill. We say in effect that any person whether he be a footballer or any one else, who does a certain act, or becomes a party to it, will be made amenable to the law.
– Yes; but is not “commercial trust” a misnomer?
– Not for the purposes of the Act. The definition is framed on the lines of many American decisions, which have followed the evolution of trusts and combines in that country. At first, there was what they called simple combinations, composed of separate and independent persons. Then, when the simple combinations were repressed, traders and others adopted the principle of the trust. , When the trusts were repressed, they resorted to the formation of corporations as in the Merger case. In effect, we say that if any persons, provided “they are separate and independent persons carrying on their businesses separately and independently, shall combine - that is, if by means of a trust or an agreement or a corporation, or by any similar means, they surrender their own personal judgment in the conduct of their affairs, they are to be regarded as a commercial trust.
– Would1 an ordinary pooling arrangement as to shares be regarded as a commercial trust?
– A pool has an undefined meaning. I understand it to be an aggregation of capital or of property under conditions which provide for a certain distribution of profits.
– Suppose that a number of persons with shares agree to exercise their votes in a certain way ?
– I should think that such an agreement would come within the definition.
– There is no penalty for pooling unless the parties to the pool do something that is prohibited.
– No; nothing would happen to the parties to the pool. The definition of “ commercial trust “ is merely like that of the word “person.”-
– Except that the members of the commercial trust would be liable to be hauled up before a Judge.
– The same thing would apply to every individual in the community, in the event of his doing certain things.
– But if I were hauled up, would I not have a remedy at law against the constable who proceeded against me, unless he could show good cause?
– No. I am afraid that, as a general rule, the honorable member would have no remedy. There is no difference in principle, or as to liability to be hauled up, between a commercial trust and any individual in the community. No penalty is attached to the mere formation, of a commercial trust, but if a trust or any other person does certain acts to the detriment of the general public, those actsought to be repressed. Whilst the honorable and learned member is perfectly right in drawing attention to the wide nature of the definition, I explain that it was intended to be wide, and that no penalty will attach to any person merely because of the definition.
– I would ask the Attorney-General whether this attempted definition of “ commercial trust “ has any other purpose in thispart of the Bill than to shift the onus of proof in cases arising under clauses 6 and” 14? I think not. All this discussion about the definition, at this stage, is really a waste of time, because I take it that the object is merely to indicate what is meant by a commercial trust in clauses 6 and 14.
– And possibly under clause 1 1
– In all these cases I take it that the only result is that the onus is shifted from the plaintiff on tothe defendant in the case of a combination: being held to be a commercial trust.
– That makes all the difference.
– If the only object is to shift the onus of proof of fair or unfair competition, then, inasmuch as a cricket club or a football club would never, under any circumstances, be brought intoany proceedings under the Bill, the merefact that they would come within the definition of “ commercial trust “ seems to meof no importance.
– The term has an even more limited meaning than “that expressed by the honorable and learned member. In the first place, as I previously explained, under clause 4 two classes of acts are aimed at. In the first place, the restraint of trade or commerce to the detriment of the public. In proceedings for restraint of trade or commerce to the detriment of the- public it would be utterly immaterial whether the defendant were a commercial’ trust or not. Under paragraph b, which relates to unfair competition, the questionas to whether the persons proceeded against’ were a commercial trust or not would be material only for the purpose of one particular feature of the case, namely, that of the proof of unfair competition. The plaintiff would have to prove all the other facts. He would have to prove that the Australian industry affected was one which it was advantageous to preserve in the interests of the Commonwealth. Further, he would have to prove that there was competition, and that it was carried on with design. The only additional facility that would be afforded in the case of a commercial trust would be that, the prosecution having proved competition, the trust would be called upon to show that the competition was fair.
– I do not think that the prosecution would be called upon to prove the facts indicated by the AttorneyGeneral, but would merely have to affirm them.
– The honorable member is wrong. The prosecution would have to prove everything except the unfairness of the competition - that could be disproved by the trust. The prosecution would have to prove competition with design, and that the Australian industry that was the subject of competition was one that ought to be preserved in the interests of the Commonwealth. There would be no onus on the defendant so far as these matters were concerned ; but if the defendants were a commercial’ trust they would have to show that the competition was fair. Therefore, the onus of proof is not affected in one particular case, but only in one branch of that particular case.
– It seems to me that some honorable members who believe in the efficacy of this kind of legislation to limit the power of trusts to take advantage of the community as a whole, are making an error iri attempting to restrict the definition of “ commercial trust.” In America, notwithstanding the apparently explicit character of the Sherman Act, the experience has been that it is extremely difficult to bring within the definition of the law the agreements and arrangements of trusts. In this connexion I may be pardoned for quoting an extract from the work issued this year by Mr. T. C. Spelling upon Trusts and Monopolies in the United States. He says -
There have been such few agreements in a form to be dealt with under that Act, because as soon as it was passed, those desiring to monopolize or restrict Inter-State commerce found other methods for doing so than by making such agreements. It is doubtful if there is to-day a single institution ot business arrangement within the inhibitions of that Act, notwithstanding that trade, transportation, and manufactur ing monopolies are more numerous and powerful than ever before. What is called the “Beef Trust” is not. a trust at all, but rather a “pool.” It is a secret pool, difficult or impossible to be suppressed, or even hindered, by judicial remedies or proceedings, but it is not a trust.
I say that this writer, who, as a lawyer, can speak with some authority upon the subject, as well as others, whose opinions I have been able to find in various publications - and I have read two articles in the Journal of the American Academy - concur in saying that the Sherman Act has failed mainly because of the difficulty of bringing within the definition of the law these pools, or trusts, or combinations which operate to the detriment of the public. Therefore it seems to me that those who desire that this legislation shall be given a fair opportunity of proving successful should make the definitions as wide as possible. As the Attorney-General has pointed out, it does not matter how wide a definition may be, because, after all, it is governed by the. offence to which the law applies. It is not the fact that certain combinations are “ pools,” or are working under an agreement - as was instanced by the honorable and learned member for Northern Melbourne in regard to football clubs - which makes them commercial trusts, but it is the fact that they are banded together for a specific object to the detriment of the public, for the restraint of trade, or for the purpose of injuring an industry. It is the class of offence which governs the matter, and not the definition under which it comes. It seems to me therefore that when the deputy leader of the Opposition proposes to omit the term “ agreement “ as coming within the definition of a “commercial trust,” we should have regard to what class of offence is possible under an agreement. It does appear to me that there is a possibility - I do not say a probability, because in the light of our experience we are not justified in assuming that there is a probability - of the coal vend either in Newcastle, Illawarra, or the Western district of New South Wales acquiring a power - and taking advantage of it - to injure the public by putting up the price of that commodity beyond a reasonable maximum. If that were done surely the honorable member for Parramatta does not contend that the vend should be outside the pale of the law, and that the public should have no opportunity of obtaining redress? I am satisfied that he would not put forward a proposition of that kind for one moment. Yet the effect aimed at - so far as the amendment can secure it - is to allow an agreement to go without any possibility of prohibition, so far as the law is concerned. An agreement may be just as harmful to the public as any other form of pooling or combination, and I trust that the Minister will adhere to the clause in its present form. As I intimated during the debate upon the second reading of the Bill, I have no great faith in the efficacy of this class of legislation, but I do say that it is to the interest of the community that every opportunity should be afforded of proving whether or not it is of value. I am, therefore, ready to assist those who believe in it to put in this clause every safeguard to prevent the possibility of offenders against the law escaping when the public indignation is aroused against them. I say this to them, “ Make the mesh as small as you will ; tighten it in every possible direction, and I am willing to assist you.” At the same time I warn those who believe in this kind of legislation that if they leave these definitions obscure there will be a very great danger that it will fail .to achieve even the small measure of success which has attended the operation of the Sherman Act in America.
– As a layman, it strikes me that we are now asked to sanction a legal dragnet, which makes an offence of the most innocent actions and operations of the trading people of Australia. We are asked to do that in order that some individual at some point may not slip through it. Are we so hard up for a justification of a measure of this kind in Australia that honorable members cannot even cite a probable case? Even the honorable member for Bland has declared that all he can see in connexion with the vends referred to is that there is a possibility that at some time or other something might occur which, would bring them within the scope of this very wide definition.
– If we let them escape, others will escape too.
– What others? All I have to say in that case, is that it seems to me they could not reach an agreement of the character indicated unless they controlled the whole of the operations of coal-raising over the entire Continent. I will go further, and include New Zealand as well. It is almost impossible for a monopoly of the kind indicated by the leader of the Labour Party to spring into existence, and, therefore, it is almost impossible to conceive of cases arising in which trade might be restrained to the detriment of the public within the meaning of this clause, as it is generally understood. But here is the fact that we are actually legislating to meet a condition of things which may arise perhaps fifty years hence. I say it is a pity that in this Federal Parliament we have not something better to -do than to waste time over such enterprises.
– There is one concern in Australia which is at present operating under agreement to the detriment of the public. I refer to the shipping ring.
– The shipping ring would be covered by other portions of this definition. All that that ring is doing to the detriment of the public and in- restraint in trade would be covered by paragraph a of this clause.
– I doubt it.
– The shipping ring would be a commercial trust, “ whose voting power or determinations are controlled or controllable by the creation of a board of management or its equivalent or some similar means.”
– I do not think that it has a board of management.
– It is a pity that in this Parliament we have not .something better to do than to discuss drag-net legislation pf the character proposed - legislation which is intended to have no immediate effect, and as to which ai case cannot be cited, that is likely to come under its penal clauses.
– I have already cited one.
Mr. HIGGINS (Northern Melbourne) [8.40I. - I think that the extract which was read bv the leader of the Labour Party was a very appropriate one. We are all aware that the legislation upon this subject in the United States has been an absolute failure. Ineffective attempts to improve^ it have been made again and again, and it is quite true, as the honorable member has said, that the corporations or combinations or rings have merely shifted their places, just as the magsman upon a racecourse shifts his location and starts, business again. I quite agree with the honorable member that we ought to endeavour to avoid making this definition obscure, because if it be obscure it mav lead, r.ot only to the escape of those who are guilty, but to the punishment of those who are innocent. The honorable and learned member for Parkes, too, has rightly said that it involves only a matter of the burden of proof - that if we call an organization & “ commercial trust “ we shall merely shift the question of determining whether the competition to which its operations subject any industry is unfair. At the same time, the shifting of the burden of proof is a very important matter.
– I admit that, but I reserve to myself the right to determine whether commercial trusts should as a matter of course have the burden of proof shifted on to them.
– Assuming that in the case of a commercial trust it was not necessary to prove unfair competition, it would then become a very important matter. Let me put a case bearing upon our legislation in regard to the admission of coloured immigrants. Let- us suppose that a law was passed that any coloured person found in our streets should be regarded as a prohibited immigrant unless the contrary could be proved, and let us further suppose that in the definition of the term “coloured immigrant” we laid it down that any person with black eyes, or possessing a moustache of more than a certain length should be deemed to be a coloured person, the whole burden of proof would be shifted. Of course, I am putting a ridiculous case to illustrate my point. If there were such a law operating it would make a very great difference. I understand that the Attorney-General’s explanation - which as usual is very lucid and very proper - is “ Oh, it does not matter what you call a commercial trust, because the offence is the matter to be considered. That is all very well. But in legislating on this delicate matter, where the smallest difference in the conduct of a man may mean his imprisonment or freedom, it is our duty to be careful rather to keep out the innocent than to let in the. guilty. It is immensely more important that we, in our ignorance- of how to deal with these things - there is ignorance, and I do not think that this mode of dealing with them will ever be efficient - shall not widen the definition beyond what we want absolutely to express. What we want to express is a commercial combination, and we do not desire to include in the term a combination which is not commercial.
– But suppose that, like the Beef Trust in America, the combination were working, under an oral agreement, how would the honorable and learned member deal with them under the law?
– That is exactly the kind of thing to which I referred when I spoke on the second reading of the Bill. In America the experience has been that the combinations never have an agreement. It is the rascally combinations that have no agreements ; they never can be found. It is the honest combinations that have agreements, and they can be found.
– The honorable and learned member will admit that they must be very honest men to do the business they do without any writing.
– No. If the honorable and learned member will read the late Henry Demarest Lloyd’s book on investigations in America as to pools and trusts, he will find that commission after commission have had the obvious guilty parties before them, and that they denied upon oath that there was any agreement. There is no need of an agreement.
– -Just an understanding.
– Yes. A wink of the eye, a move of the hand, or any little emblem like a handkerchief is quite enough to indicate their meaning. I agree absolutely with the honorable member with regard to the inefficiency of this legislation, and of this part of the Bill, ‘and the manner in which such legislation is evaded in America. We are not going, to bring the guilty trusts under the law by means of making too wide a definition of a commercial trust. Perhaps it would be silly to get warm over an interpretation, but I feel sure that we cannot be too careful in this thing. I shall not support any proposal to amend the definition, because I feel that the responsibility is upon the Ministers ; they have to look after the drafting. I would not like to interfere with any part) of the delicate machinery with which they have to deal. But I would suggest to the Ministers that they should see whether, if they think it expedient, they cannot recommit this definition of a commercial trust. Perhaps, while I am on this clause, I may be permitted to indicate to Ministers that there is a curious anomaly. It says - and includes any division, part, constituent, person, or agent, of a Commercial Trust.
But paragraph a of clause 6 says that the competition shallbe deemed to be unfair until the contrary is proved-
– It ought to be “ constituent person.” There should be no comma between “constituent” and “person.”
– That, however, is not my point. Clause 6 says -
In the following cases the competition shall be deemed to be unfair until the contrary is proved : -
Inasmuch as the agent of a commercial trust is a commercial trust, what is the good of saying that the competition is to be deemed unfair if the defendant is a commercial trust, or the agent of that agent? Apparently, a lorryman or drayman will be held liable under this particular clause. I feel the responsibility of interfering with the drafting of a Bill, and I am quite sure that the Attorney-General will give the matter his full attention.
– I am afraid that we are wandering away a little from the question under consideration.I agree entirely with the honorable and’ learned member for Northern Melbourne as to the very great importance of saying what particular combinations we include under the term “commercial trust.” But my criticism of his former speech was made because he had expressed some fear lest football and cricket clubs should be brought under this definition. I said that, as we were only dealing now with the definition of the term “ commercial trust,” which had reference to future clauses, where we should have room for a better discussion on the merits, he need have no fear of the definition touching the sort of clubsto which he referred. I quite recognise, with him, the great importance of knowing clearly what we are including in the phrase “commercial trust,” and I hope that, when we come to clauses 6 and 14, the Committee will take into serious consideration whether it is going to extend the principle - it was copied from the English Act by the honorable member for Adelaide in framing the Customs Act - of throwing the burden of proving his innocence upon a defendant. Because there is an attempt here - and I canquite understand why it is done - to legislate to the effect that, when once any combination is brought within the definition of a commercial trust, it shall be presumed to be competing unfairly unless it proves that it is competing fairly. Probably it was seen that, where competition was involved in the importation of goods- from a country like the United States, it would be very difficult for the Customs authorities to prove that the competition was unfair by reason of the goods being imported at less than cost price in the country of production, and therefore the Government said, “We will presume that the competition is unfair unless the defendant proves to the contrary.” I can understand the utility of it, but the Committee will have to consider by-and-by whether they are going, to embark upon the common use of this principle, which is a complete reversal of the fundamental principle of English justice, that where a man is charged with an offence he shall be proved guilty before he is judged so. In this Bill we are entering upon a more extended use of the principle of charging a man with an offence, and saying, “ You are presumed to be guilty until you prove your innocence.”
– There are a good many exceptions under the English law.
– I am not dealing with that now, because I think it will come up more properly under clauses 6 and 14. What we are dealing with now is the definition of “ commercial trust.” The honorable and learned member for Northern Melbourne and the honorable member for Bland very properly say it ought to be full and explicit. I think it ought to be. unmistakable ; but, as it stands here, it is most vague and difficult to understand, because it does not attempt to describe a commercial trust, but simply says that it shall include certain things, although not all that it may comprehend. I agree with the honorable member for Kooyong that it is made possible to bring under this definition a great deal that is not even mentioned, and probably is not thought of, at the present time. There is another side to this question. We have to consider that the prosperity of this country depends upon the activity of its commerce, and that the activity of the commerce of a country depends upon the certainty with which it can be conducted. I remember that a Judge of the High Court of England once said that it was more important that the law should be certain than that it should be right; andthere is a great deal of philosophy in that statement. If we want the commerce of this country to progress we must give the people who make that commerce confidence; and if we, as was suggested by the honorable member for Bland, encompass them with a network which would involve them in a labyrinth of doubts as to whether they might or might not move without the fear of criminal proceedings, we shall paralyze the commerce of this country. Therefore, the definition ought to be clear, and the Government, although there are very few of its members with what I call practical business experience, ought to recognise that we are endeavouring to curtail, for what may be deemed beneficial purposes, the abuses of the commercial world. But we have to be very careful that in checking the abuses we do not go to the root of the thing itself and make a network of provisions which would render mercantile life unbearable. If a Bill like this was encompassed round with such a multiplicity of rules and regulations and vague definitions, that no person engaged iri commerce could move without feeling that he was running the risk of a year’s imprisonment, it would cause every man who was in a position to do so to hold his hand, and probably injure the commerce of the country. The honorable member for Bland, when referred to by the honorable member for Parramatta with regard to the coal agreement, deprecated it, and mentioned the shipping agreement as another instance of an organization which ought to be touched by the Bill. I would remind the honorable member that I have had considerable experience of shipping. For some years, as the Committee probably may know, I was president of the Employers’ Union, and managing director of one of the largest shipping companies of this country. I remember that when the excuse made for lowering wages was the “ cut-throat” rates that were being charged by the shipping companies, the one contention of the trade unionists of this State was, “ Why do you not combine among yourselves and insist upon the public paying you freights which would enable you to pay fair wages ?”
– That is a reasonable exercise of power, but extortion goes beyond it.
– Yes, but the honorable member has not shown that there has been any extortion.
– I shall show that on another occasion.
– The honorable member has not advocated that only extortionate cases should be brought under the Bill. He has advocated that agreements - for instance, the agreement between the shipping companies - should be brought thereunder.
– When they are operating to the detriment of the public, as mentioned in clauses 4 and 5 ?
– Through their representatives, thc-trade unionists of Victoria, at that time numbering some 46,000, invited the shipping companies to take the earliest opportunity of entering into a combination to keep up rates ; because, as I knew to my cost, the companies were cutting one another’s throats in their desire to get business. With regard to the coal trade, the honorable member knows very well that only twelve months ago, when the coal companies gave the low price of coal as their reason for not increasing the rates of pay or for decreasing them, the one advice from all the trade unionists of Newcastle was, “ Why do you not enter into a combination amongst yourselves to keep up the price of coal?”
– I have already said that so far the colliery proprietors have not abused their power.
– The honorable member spoke in rather a general way in condemnation of these combinations on the part of the coal-owners and the shipping firms.
– No; I do not put the two on the same plane.
– The honorable member will understand that I am not for a moment vindicating either. I know very well that both are capable of abuse; but, for years, the complaint of trade unionists has been that the shipping companies would not combine in order to keep up freights, and that the coal-owners would not combine in order to keep up the price of coal. We, as a legislative body, have to hold the scales in the framing of laws. I am quite sure that no honorable member is anxious to put any particular branch of commerce in such a position that it could abuse its power by combination and so mulct the public. I ami quite sure that there are many honorable members on both sides of the chamber who, while anxious to benefit the workers, are not desirous of paralyzing or stifling the commerce of the country. I indorse the remark of the honorable member for Kooyong, that we ought to remember that we are here as trustees, and not to represent particular classes. We are not here to give vent to class feeling and to do our utmost to win for one side or the other. We have to remember that the commerce of this country is its life blood, and to take care that while we are doing our utmost to prevent the abuses, which I am quite prepared to admit do occasionally creep in either from outside or from inside, we do not kill the goose in our anxiety to get more eggs.
.- The honorable and learned member for Parkes has forgotten some of the teachings of the science of political economy. He wishes us to infer that high wages are necessarily identical with high prices. As a matter of fact, I think the honorable and learned member will admit that in the history of industry and commerce throughout the world the raising of wages has much more frequently been associated! with the lowering of the cost of production than low wages have been associated with cheap production.
– I said nothing to the contrary. I was saying only what the coal-miners urged as a cure for low wages in the shipping industry.
– They urged that in reply to an excuse put forward.
– Of course.
– In the case of the shipping ring, it isjust possible that the owners of the ships might have said to the men that they could not afford to pay high wages because of the low rates of freight, but I put it to the honorable and learned member, in view of his knowledge of political economy, whether that was a sound reason or not?
– It just depends how close they were running to their income.
– I think the honorable and learned member will agree that in industry, as a rule, the raising of wages means the increased efficiency of the worker, and almost necessarily a lower cost of production. That has undoubtedly been the history of economics in modern times.
– Except when it is applied to Japan.
– I think that it holds good even in Japan.
– Good old free-trade gag.
– I shall have an opportunity to discuss that matter in greater detail than is possible at the present time. I wish to refer now to the question as it affects an alleged combine mentioned to-night, namely, the shipping ring. I contend that if one-half of what has been said in reference to the shipping ring is true, this Bill will not touch it at all. In my opinion this particular clause is altogether wide of the mark, if it is expected to hit that particular commercial concern. In this connexion the one material phase of the question, and the one determining factor in getting at. such a combination, if it exists, has been lost sight of altogether. The method of getting at this combination is by determining by some Act of Parliament the rate of remuneration for the services it renders. In other words, the freights, passenger fares, and so on, will have to be specifically determined, or all legislation of this kind will be absolutely wide of the mark.
– That will have to apply all round.
– Undoubtedly, and I contend therefore that every specific act which this Bill is brought in to suppress will require to be dealt with by a separate Act of Parliament’; The operations and ramifications of trade differ so much in the case of varying companies and associations that no general proposition of this kind will effectively deal with the evil aimed at. Each specific case should be dealt with entirely on its own merits, and this Bill will undoubtedly lead to a great deal of irritation and a great deal of disappointment on the part of those who have expected anything from it. I tried by interjection to make a point when the Attorney - General was speaking, but, owing to my lack of knowledge of the technicalities of law, I was not particularly fortunate. I shall try to make that point now. I would ask whether any person whose path I get in the way of occasionally can trump up a criminal charge against me with impunity ? If I find myself, as the result of a trumped-up charge, placed in the dock and put upon my defence, does the learned AttorneyGeneral or any other person say that I have no remedy at law against that kind of thing?
– The honorable member would have a remedy against a private individual, but I doubt whether he would have a remedy against the Crown.
Mr.FOWLER. - I can get a remedy against some one or other. That will be admitted by every one.
– No, it does not follow at all.
– Am I to understand that I can be placed in the dock and charged with a criminal charge as the result of a purely trumped-up matter, and have no remedy at law?
– Will the honorable member be good enough to say how he connects these remarks with the amendment ?
– My point is that under the clause, as it stands, it is possible for a trumped-up charge to be made against any person or persons by some competitor, and that the person or persons so charged may be put practically in a criminal dock, and have to face the possibility of imprisonment, unless they are fortunate enough to be able to disprove the accusations made against them.
– But, under an amendment which the Minister has outlined in clause ii, the Attorney- General will act as grand juror, and he will require to find a true bill.
– I do not believe that the Attorney-General should have the power to act as grand juror.
– We must have some one. Whom would the honorable member have?
– In the face of history, I cannot understand the honorable member for Bland talking in that fashion, when he realizes the great succession of fights made by democracy against the exercise of such arbitrary power by officers of the Crown in the past.
– Whom would the honorable member suggest in lieu of the AttorneyGeneral. We must have some one to say whether aprimafacie case has been made out.
– I say that the prima facie case should be stated in the ordinary terms of law.
– By whom?
– The unfortunate person put in the dock has to disprove the charges made against him.
– The honorable member is on another question now - the question of the burden of proof.
– The honorable member for Bland is taking two phases of this Bill, and insisting upon regarding them as one.
– No, I take them separately. I say that the burden of proof is another question.
– The position is this: The first step taken means to the unfortunate individual against whom the charge is made that he is placed in the dock, practically as a criminal; and I contend that, unless there is good and sound reason at law for such a step as that, such a power ought not to be in the hands, first, of the Comptroller-General of Customs, and, secondly, of the Attorney-General himself.
– Some one must say whether there is a prima facie case; whom would the honorable member suggest?
– I say that in a matter of this kind the prima facie case should be made out by Parliament, and Parliament should come down with a Bill to deal with the specific matter.
– A special law for each case?
– Undoubtedly. I do not wish to turn Parliament into a law court, but I say that there are matters proposed to be dealt with in this Bill that are matters, not of law, but merely as to whether certain individuals will be better off if certain competitors are put out of their way. Is that a matter which should lead to a person being dragged into a criminal court?
– That is nonsense.
– I cannot understand the reasons at work in putting a Bill of this kind before the House.
– Hear, hear; the honorable member cannot.
– I am perfectly sure that this measure will rebound with most unexpected results on the heads of those who put it forward.
– I rise to submit the amendment of which I gave notice some time ago. I move -
That after the word “ Trust,” line 18, the following words be inserted “ but does not include a combination of persons engaged in agricultural, viticultural, horticultural, or dairying pursuits in relation to these industries.”
– The same old gag.
– No class legislation.
– Honorable members who are jeering at this proposal to-night voted for it when it was brought forward in connexion with the workers’ trade marks provisions of the Trade Marks Bill.
– That is not correct.
– It is quite correct, and it was accepted by the Government without any objection at that time.
– It was not voted for by us. I expressed then the same objection to it as I have done now.
– Order !
– Honorable members did not vote against it.
– Those in favour of it had the numbers, and it was not worth our while to bother about it.
– If the honorable member had told the Government what they had to do they would have had to do it.
– Order !
– The honorable member was on their side then, and he always is when sectional interests are involved.
– Order ! If the interjections do not cease I must call the special attention of the Committee to the honorable members who make them.
– As this debate proceeds its general haziness, as well as that of the Bill, are developed, and I am the more strongly confirmed in the opinion that such a class of persons as those who till the soil, and who do mot understand Acts of Parliament, ought certainly not to be included under this Bill.
– Would a wheat buyers monopoly be a good thing for the farmer?
– Wheat buyers do not till the soil.
– They operate on the products of the soil.
– When I gave notice of this amendment the Minister in charge of the Bill interjected, “ This is an electioneering dodge.” It evidently dawned at once upon the honorable gentleman’s mind that the proposal would be a popular one with the farmers, otherwise he would not have characterized it as he did. I am aware that the honorable gentleman in his Innocence would never resort to an electioneering dodge. At the same time, he knows well what will go down with the farmers he represents, and what will not, and I venture to say that the bringing of this class of the community under the provisions of this Bill will’ not be a popular move with them. Owing to the haziness attaching to these definitions, it has been said that Ministers are endeavouring to bring all sorts and conditions of people under the Bill. This clause is what the present Premier of Victoria at one time described as an omnium gatherum. It is a provision by which everybody is dragged into the net, and allowed to take his chance. I object to men who have to toil from early morning until late at night, and who do not understand Acts of Parliament, being liable to be placed in the position just described by the honorable member forPerth ; liable to be taken away from their work, brought up at any time, and dragged into court on some trumped up charge framed under this Bill.
.- I have not had time to look into this amendment carefully, and I am not quite sure whether I understand the phraseology aright, but the proposition may go a great deal further than the honorable member for Echuca intends. I. am inclined to think, at first blush, that the amendment will exempt dealers in agricultural produce, as well as those who are engaged in the actual production.
– The wheat combine, for instance.
– Or the apple combine, and the thousand other developments in connexion with which people fleece the farmers at every opportunity.
– There is the Colonial Sugar Refining Company.
– The Colonial Sugar Refining Company is engaged in dealing with primary products.
– Does the honorable member say that the Colonial Sugar RefiningCompany fleeces the farmers?
– The Colonial Sugar RefiningCompany is engaged in the actual production of sugar, as well as dealing with the raw sugar brought to them by private growers.
– And there is the tobacco company.
– I ask whether the Colonial Sugar Refining Company fleeces the farmer?
– What I said was that the proposal of the honorable member for Echuca may exempt a number of combinations that are engaged in fleecing the farmers.
– Then the honorable member mentioned the Colonial Sugar Refining Company.
– Well. I shall say that the Colonial Sugar Refining Company is in some cases giving many shillings per ton less for sugar cane than is the management of the Central Co-operative Mills ; and that means fleecing the farmers of the difference.
– The Colonial Sugar Refining. Company has given 3d. per ton more than has the management of the Co-operative Sugar Mills for over four years.
– In regard to some districts, I beg to dissent from the honorable member absolutely.
– Very well ; then in other districts the management of the Co-operative Mills must be giving much less.
– Until recently the Central ‘Co-operative Mills were managed by the farmers themselves, and many of them failed miserably until the enterprise was taken over by the Government. The management, as well as the ownership of some of them, was taken over by the Government, which hadpreviously held a mortgage; and since then, in nearly every case, more has been paid for sugar cane than has been paid by the Colonial Sugar Refining Company. However, under the amendment, all that needs to be done is for one of those companies, combinations, or trust pools to engage in some fashion in direct production of the commodity in which they deal, to escape any penalty under the measure.
– Is the honorable member sure?
– No; but the amendment has been sprung upon us without being printed. Even if the amendment as drafted does not apply to those engaged in the handling of primary products, it would still be possible, in a case like that of the Colonial Sugar RefiningCompany, which grows cane, as well as handles it as a secondary product, to escape all the machinery which the Bill brings into existence. In any case, it is another instance, it seems to me, of the honorable member for Echuca casting a slur or reflection on the farmers of this country - nothing but a slur and a reflection. According to thehonorable; member, the farmers desire to be exempt from any penalty, no matter what kind of crime they commit against the community at large. Does the honorable member seriously say that the farmers of Victoria, or of Australia, have sunk so low that they ask to be exempt from punishment, even though they work against the interests of the people of Australia, or commit what, but for the proposed exemption, would be a breach of the law?
– And are the farmers as ignorant as the honorable member for Echuca represents?
– I do not think that the farmers are as ignorant as the honorable member endeavours to make out when he says that they do not know what the law is, and cannot construe it. In my experience the farmers are just as intelligent as any other section of the community, and just as well able to understand the laws. I dp not believe there is a majority of the farmers who desire any special treatment at the hands of this Parliament.
– But the lawyers cannot agree as to a definition.
– The honorable member for Kooyong must remember that however wide we make the definition of “ commercial trust,” it does not matter in the slightest degree, unless those affected engage in some act to the detriment of the public and in restraint of trade and commerce. Until they get to that stage, it does not matter even if they are included a thousand times.
– The definition of” commercial trust “ does not apply to the part of the Bill dealing with monopolies.
– I am not speaking of monopolies which are not pools, but of pools which may also be monopolies.
– But the definition of “ commercial trust “ has nothing to do with the part of the Bill relating to restraint of trade and commerce.
– I think it has; the definition of “ commercial trust “ refers to sections 4 and 5 amongst others. Clause 4 provides -
Any person who wilfully, either as principal or as agent, makes or enters into any contract, or is a member of or engages in any combination to do any act or thing, in relation to trade or commerce with other countries or among the States -
– That which is called a “commercial trust” in clause 3 may be such a combination as is described in clause 4, but the definition does not apply, because the words “ commercial trust “ are not used in clause 4.
– Clause 6 specifies that for the purposes of clauses 4 and 5, if the defendant is a commercial trust, the onus of disproof shall lie on him.
– So that combinations of farmers are criminal until the farmers prove their own innocence.
– But the honorable member for Echuca is branding the farmers as potential criminals when he seeks to exempt them from a law designed’ to protect the general public. This Parliament lays down the principle that the efforts of a combination to raise prices unduly is against the public interest; and according to the honorable member for Echuca, any combination, ‘ which is not one of farmers, should be punished, but if the combination be of farmers, their criminality should be allowed to pass without comment or action on the part of the community. That is an extraordinary position, and one which I do not believe the farmers desired to see taken up on their behalf. Farmers should be placed on exactly the same plane as are other members of the community. If “any number of farmers engage to raise prices to such a degree as to extort unfair and improper prices from the public, they ought to be brought to book in the same way as are the commercial classes.
– This amendment will not prevent the farmers being brought to book.
– Then what is the object of the amendment?
– So far as I understand the amendment, the effect would be to prevent the burden of proving their innocence being shifted on to the farmers.
– If that were the only object, it could be achieved by an amendment in clause 6.
– I think that is all the amendment does.
– Why should farmers be put in a different position from that of any other portion of the community?
– I am not discussing the merits of the question, but merely pointing out the meaning of the amendment.
– The whole point is that if this practice of pooling; and combining is against the public interest - if people en- gaged in a combine are working detrimentally to the public interest and in restraint of trade and commerce - it does not matter whether the combine consists of commercial men, farmers, or manual labourers, they should be treated in exactly the same way, so far as the law is concerned.
– All men ought to be equal before the law.
– They were not made so in the Arbitration Act.
– We attempted to make them so.
– Farmers were not.
– I objected to, and spoke against, the exemption of farmers under that Act, and I ami now only consistent in opposing, any special treatment being , accorded to them under the Bill.
– My interjection was made in reply to the Attorney-General.
– For myself, I see a distinction. It was contended that there was no likelihood1 of farmers being brought under the Conciliation and Arbitration Act. Although I opposed their exemption, I have to admit that I did not see any probability of the farming community being made, in practice, subject to its provisions.
– There was every likelihood.
– A similar Act has been in existence in New Zealand for many years, and the farming community has, in practice, never yet been brought under it.
– The farming community has not been brought under the law.
– The farming community in New Zealand was always subject to the law, but it has never been put into practice as affecting their industry. Many other trades and callings have been brought under the New Zealand Act, but never farming, although the power is there for any trades unions that may be organized to bring it into operation.
– I thought the farm labourers were organized in South Canterbury ?
– They may be, but there has never been a case in which the question of the wages of farm labourers has been before the New Zealand Arbitration Court.
– I think that the farm labourers are organized there.
– I am not aware of the fact; at any rate, there has never been before the Arbitration Court a question as to the wages, conditions, and so forth, of farm labourers.
– Farm labourers are too busy to organize; that is why.
– That may be so. The honorable member, probably by accident, has struck on a very great truth. If conditions are ideal, there is no necessity for trade unions ; it is only because of necessity that trade unions arise. As to the amendment, it is my belief that the farmers do not desire any special exemption of the sort.
– How could farmers combine to shut up other farmers?
– I am doubtful myself as to where the farmers “come in.” I am positive that, so far as dealers in farm produce are concerned, there are great dangers of the farmers being “ rooked “ by them. What about the disclosures of the Butter Commission, and the statements made before the Shipping Commission in regard to apples shipped from Hobart? In quite a variety of directions we know of combinations dealing with farm produce that have been altogether against the interests of the producers.
– If the occasion arises, clap a Bill at them !
– The honorable member mav make that assumption, but it is not my’ attitude. With respect to every class which will come under this measure, the necessity would first arise to make out a prima facie case that those concerned were going beyond what was reasonable. The Minister of Trade and Customs has announced that, in clause n provision will be made that the Attorney-General must practically file a bill before any step can be taken ; and, with that assurance, there is no likelihood that every small effort to insure reasonable conditions will be made the subject of an action at law. But we must have power, it seems to me - or make the attempt to get the power - to deal with those forms of (combination which are against the general interest, and I object altogether to any exception being made in the case of farmers or any other section of the community.
.- I think that the honorable member for Bland has misapprehended the meaning of the amendment; but the wording must be some what altered to effect the exact object which the honorable member for Echuca desires to attain. That, no doubt, is a matter in which the Attorney-General will give his assistance.
– I am always ready to assist in drafting, whatever view I may take in regard to the merits of a proposal.
– I take it that the object of the amendment is to prevent the application of the definition of “ commercial trust “ to a combination of persons engaged in agricultural, viticultural, horticultural, or dairying pursuits. If such combinations came under the definition of a commercial trust they would, under paragraph a of clause 6, be liable to be held guilty of acting in restraint of trade or of unfair competition until they had proved that they were innocent. Clause 6 shifts the burden of proof with respect to a commercial trust from the Crown to the defendant. Instead of the Crown having to prove the defendant guilty of unfair competition, the defendant has to prove himself innocent of it, and the desire of the honorable member for Echuca is simply that a combination of farmers shall not be deemed to be guilty until it is proved innocent.
– Why should not all other combinations be placed in the same position ?
– That is another matter. I have very grave doubt about the propriety of assuming any one guilty until he has proved his innocence.
– That question arises in connexion with clause 6.
– Yes. I am merely pointing out that the amendment does not exempt combinations of farmers from the operation of the Bill, but provides that they shall not be liable to be charged with unfair competition, and be deemed guilty, until they have proved their innocence.
– Does the honorable and learned member think that combinations of farmers should be specially singled out in this manner?
– I am very doubtful of the propriety of assuming any one guilty in this particular case, but certainly combinations of rural producers should not be assumed to be guilty until they have proved their innocence.
– Would it not be better to test the question in dealing with clause 6?
– No. The Committee may decide, in dealing with clause 6, that foreign commercial trusts should be deemed guilty until their innocence is proved; but there are cases in which that principle should not apply, and the case of our rural producers is one of them.
– With whom could such combinations compete?
– I suppose that such a combination could compete with farmers who were not in the combination. The Bill seems to make it possible for some of those engaged in Australian industries to combine to destroy all’ others so engaged, and, having done so, to be charged with having destroyed an Australian industry, when in point of fact they had destroyed only certain persons or firms engaged in it. Such combinations are a mischief which the Government seem to have aimed at, but which I do not think they will succeed in hitting, though perhaps they should be hit.
– If the amendment is agreed to at this stage, it will give those to whom it applies preferential treatment.
– It provides in effect only that combinations of farmers shall not be subject to the disability of having to prove their innocence on the charge of desiring, to destroy an Australian industry ; but that the responsibility of proving their guilt will rest on the Crown.
– The amendment means more than that.
– -I do not think that it means anything more, and it certainly does not go far enough to have rightly called forth the fulminations of the honorable member.
– It is an attempt to exempt those to whom it applies from the provisions of the Bill.
– That was the argument of the honorable member for Echuca.
– The amendment could not do that. The honorable member for Echuca mav intend to move other amendments to effect that object, but so far as I can see, the present amendment means only what I have said. I think that all this flurry has arisen because of a fear that we may succeed in carrying it.
– There is no chance of that.
– As the honorable member for Bland says that it is not to be carried, I know that there is no chance of carrying it, and, therefore, I shall say no more on the subject.
.- I agree with the honorable and learned, member for Corinella that the only effect of adopting the amendment would be to relieve the combinations of persons with which it deals of the onus of proof imposed by clause 6, though I believe it to be the intention of the honorable member for Echuca to go much further, and to exempt farmers and others from the operation of the Bill. If that is his intention, he should move the insertion of a provision to the effect that the measure shall not apply to persons engaged in agricultural, viticultural, horticultural, or dairying pursuits. In my opinion, the question whether farmers should be relieved of the onus put upon commercial trusts by clause 6, is properly discussable when we come to that clause. The suggestion that there should be no exemptions from the Bill is a very important one. The only provisions which I think will be workable, and regard as desirable or necessary at the present time, are those of clauses 4 and 5, relating to combines and trade agreements. I do not think that the provisions relating to monopolies and dumping will be effective. In my opinion, those who advocate their enactment will find them delusive, and will be grievously disappointed by them. But I strongly support clauses 4 and 5, read in conjunction with the interpretation clause. There are, I believe, sufficient facts before the Parliament and the country at the present time to justify legislation for the prevention of combines and trade agreements which may be detrimental to the public, or calculated to injure or destroy Australian industries. I shall support such legislation wholly and sincerely, and I think that there should be no exemptions from its operations, but that it should apply all round - to coal combines, to shipping combines, and to combines of all descriptions. It would be very unfair to make the anti-combine clauses of the measure apply to the harvester and reaper and binder combines, and not to other combines that might be injurious to the public, or in restraint of trade. When honorable members have before them the evidence taken bv the Tariff Commission as to the effect of these combines among those engaged in the harvester and reaper and binder trade, locally as well as oversea, thev will see the full justification for the provisions of which I am speaking.
– We have asked for that evidence, and desired that the consideration of the measure should be postponed until we could read it.
– When honorable members get that evidence, ‘ they will find that trade agreements in respect to harvesters and reapers and binders were in force for many years. Such an agreement, fixing the price of reapers and binders sold in this country, existed for twelve years, and must have been detrimental to the public, because its effect was to increase prices. Although the free importation of reapers and binders was allowed, there was no freetrade in those machines. That agreement was followed by another, which lasted for seven years. Then, in 1904, there was a harvester agreement to which the following persons and firms were parties: - Hugh Victor McKay, Nicholson and Morrow, Robinson and Company, the Massey-Harris Company, and the International Harvester Company, the secretary of the combine being Mr. L. H. Cowles, the Victorian manager of the International Harvester Company. That combine fixed the price of harvesters, and, in some cases, raised it from £70 to j£8i. It existed for upwards of two years, and was not broken down until the 5th October, 1905, when a. deputation waited on the Minister of Trade and Customs, asking for increased duties, and the International Harvester Company withdrew. Therefore, I support the anticombine clauses. I think that they should he passed, and, in the interests of the public, made as strong and clear as possible.
– I hope that the amendment will not be accepted. When we are legislating, in the interests of the whole community, as we assert that we are, we ought to make no exceptions. As I said at an earlier period this evening, we should not make rules for combinations of farmers different from those which would apply to combinations of boot manufacturers. The amendment proposed by the honorable member for Echuca would injure the farmers, because it would permit of a few big farmers com:bining against the smaller farmers. The honorable member, in effect, says, “ I am going to look after the big farmers!, but not after the small farmers.”
– That is very unfair.
– It is not unfair, and I shall show the Committee what the amend ment would mean. The provision would apply to clause 4. If a combination of big farmers united together, and surrendered their individual powers of voting, under an agreement by which a majority could coerce a minority, with the object of crushing out other farmers, why should we countenance any such nefarious enterprise, and fail to protect those who are innocent?
– Does the AttorneyGeneral say that the amendment would prevent clause 4 from applying to a combination of farmers ?
– I say that it would not prevent clause 4 from applying, but it would prevent the Bill from applying to a combination of farmers in the same way that it would apply to any other combination under like circumstances. That is what I say.
– That is not what the AttorneyGeneral did say.
– If there were a combination of harvester makers against other harvester makers, the very fact that it was a combination designed to crush industry would be taken as prima facie evidence that it was acting unfairly. But, according to the amendment of the honorable member, if a few big, farmers united and put their capital together with the design of crushing out other farmers, it must not be presumed that they were acting unfairly. I’ say that it ought to be presumed. Any combination formed with the idea of crushing out Australian industry should have placed upon it the burden of proof that it was acting fairly. The parties would not be called upon to prove their innocence. The prosecution would have to prove that the combination had been formed with the design of crushing out an Australian industry. And when that had been shown, in addition to the fact that there was a combination, would it not be very little to ask that the combination should be called upon to justify the competition ? That is all that the combine would have to do. All the other facts would have to be proved against them affirmatively, and it is utterly wrong to say that the burden of proving innocence would be placed upon the defendants. If it is once proved that a combination has been formed, and that the members of it have surrendered their own personal opinions and discretion to a trust, we contend that the prima facie infer- ence is that the competition is unfair. If that is a wrong principle to lay down, paragraph a of clause 6 should be struck out altogether. I shall not complain if the majority of the Committee are against us in that matter. If the principle is wrong, it is equally improper to apply it to harvester or tobacco combinations; or to combinations of farmers. . It is either right or wrong. I can foresee that great combinations might be formed in the primary industries which would be so powerful that they could monopolize the product of an industry and reduce the price which would be obtainable by the single-banded farmer. If the principle is wrong, it should not be applied at all. I represent a great many farmers, and as far as I know thev do not wish to stand before the Australian community in a position different from that occupied by any other section. They do not want anything but fair play. They certainly do not desire that other persons shall be punished for acts which, if performed by them, would not draw down any penalty.
Mr. JOSEPH COOK (Parramatta) £9.52]. - May I respectfully suggest that there is a very great distinction between men “engaged in the primary industries and those engaged in secondary industries. There is all the difference “ in the world between a man who is growing grain, or cabbages, or potatoes, or fruit, away in the country, and one who is manufacturing harvesters on a big scale in the city. The supply of harvesters could be controlled in such a way as to bring about a monopoly, but milk or butter production could not be cornered.
– Yes, they could, indeed.
– I say that they could not. So long as individuals own little plots of land, and grow grain or other produce, they cannot be prevented from coming into the market, or making their livelihood. There are no such possibilities in the way of restraint of trade or commerce to the detriment of the public in connexion with the primary industries as exist in the secondary industries.
– It may not be as easy, but it can be done.
– Anything is possible ; but we have to consider some of the probabilities of the case. In order to arrive at a proper conclusion, we must consult the experience of the- past. The honorable member for Bland has told us that, although the Arbitration Act in New Zealand was intended to apply to every farmer, not a single agriculturist has up to the present had ‘anything to do with the Court. Is not that the best possible proof that there was no necessity to bring them within the operation of the Act?
– Not at all. It is quite possible that the fact that they have been brought within the scope of the Act has rendered it unnecessary to appeal to the Court.
– It is easy to string any number of possibilities together, but we have to deal with probabilities. This is not the final law on the whole question. Suppose that a corner were formed with a view of creating a monopoly in connexion with any of the producing interests. Would it not be possible for us 10 pass a law to apply preventive measures? The honorable member is willing that those engaged in the primary industries shall be exposed to the risk of being dragged to the law courts and having thrown upon them the onus of showing that they are not acting illegally in growing their grain.
– That is utter nonsense..
– It is all very well for the honorable member to say that. He is the most self-satisfied man in the Chamber, and does nothing but interject. A measure of this kind aimed at the great industrial monopolies which, can be controlled to the detriment of the community should not be stretched to the extent of dragging in all the primary industries. The Attorney-General stated that the Government purposely made the Bill wide. They are making it wide with a vengeance. I should like to know why the agricultural population should be ‘exempt from the operations of the Arbitration ‘ Act, and not be placed beyond1 the application of this much more drastic legislation. This is a matter of controlling not merely the conditions of employment, but also the prices of commodities. The measure goes right down to the foundations of our industrial enterprises, and there are a. thousand more reasons why the farming population should be exempted from itsprovisions than could be urged in favour of placing them beyond the scope of our arbitration laws. The great outstanding fact in favour of the farmer is that the product of Jus enterprise cannot be monopolized in the same way as the products of secondary industries. We cannot bring about a corner in the growing of wheat or the production of milk, butter, or cheese. The products of the secondary industries can be readily cornered, because of the scale upon which they must be manufactured.
– There is a corner in apples in Tasmania, and there was a comer in maize in Sydney.
– Does the maize corner operate now. I believe that it did not succeed?
– Oh, yes., it did.
– I am otherwise informed.
– It succeeded for a considerable time.
– But it does not exist now. Are we to busy ourselves in passing Acts to meet any possibilities that may occur in our ordinary industrial life? The whole thing is preposterous. If an evil exists, by all means let us apply our legislation to it, but do not let us pass measures, such as that before us, embracing the whole of the operations of the community in the primary as well as the secondary industries. We should not make a drag-net of our legislation on the off-chance that we may collar a man and punish him. We seem to be setting ourselves up as a kind df industrial inquisition. We are going about seeking whom we may devour - trying to find some one whom we can drag within the reach of our legislation. I contend that we are prostituting the powers conferred upon us by the Constitution, and entirely ignoring the spirit in which it was framed. I trust that the honorable member will persevere with his amendment.
– I really do not see how this Bill can touch, farmers or combinations of farmers. Certainly if a combination of farmers* were formed with a view to knocking out other farmers, there would not be much harm done to the community. How upon earth could they destroy by production the competition of other farmers, except by benefiting the States ? The bigger their production the better it would be for the States, and if a surplus were created it would be exported. Of course it may be said that a corner might be established in the products of the farming industry, but if so, it would prevent those products from getting into the stream of Inter-State commerce. If they did not get there the corner would not come under the operation of this Bill. Thus, unless a corner were established extending beyond the limits of one State the measure could not affect it.
– That is the only case in which it would affect such a corner.
– I doubt very much whether the Bill would touch it even then. In that connexion, the Attorney-General must recollect that the Arbitration Act has not yet been tested. A combination of farmers for the purpose of knocking out other farmers is inconceivable.
– Then there is no necessity for this amendment ?
– I do not think that there is. I do not believe that it matters very much whether the amendment is incorporated in the Bill or not. As the measure cannot apply to the farming industry, we might as well at once declare that it was never intended to apply to it.
– I trust that the amendment will not be withdrawn. We are all aware that since the Butter Commission submitted its report the farmers in New South Wales and Victoria have been forming co-operative companies and disposing of their own produce. In New South Wales nearly two-thirds of their produce is being sold in that way. They have established these companies for the purpose of raising the quality of their commoditiesand of securing better prices. But it sometimes ‘happens that they cannot get rid of all their produce in the State in which they are resident, and that butter, for example, may be realizing id1, per lb. more in Victoria than it is commanding in New South Wales. In that case they naturally ship their butter here. But under this Bill if any such action were taken, they would at once be charged with bringing down the price of butter in Victoria.
– The amendment would not touch any operations of that character.
– The farmers in Victoria might declare that the New South Wales farmers were acting in restraint of trade, and might thus bring them under the provisions of the Bill.
– With the design of crushing the Victorian farmers ?
– The New South Wales farmers might not -have that design, but it would be charged against them. Again, we can easily conceive that when there was a surplus of produce in the eastern States, a large quantity might be exported to
Western Australia, where it might realize a lower price than that at which it could be produced in the home market. In that case the exporters would be accused of endeavouring to reduce the values of commodities in the Western Australian market.
– It is not nonsense. These matters require consideration, and farmers have a right to be exempted from the provisions of the Bill, unless they combine for the purpose of injuring trade or of crushring an industry.
– That is the only case in which it will apply.
– From the present trend of our legislation, I consider that the time is not far distant when a man will be required to consult the Minister as to whether he can get married.
.- My object in moving the amendment was’ to secure to the farmers the right to combine for the purpose of securing a fair price for their products. I have previously instanced the case of the Mildura trust, which might easily come within the scope of this Bill. If any one chose to bring it before the Court,’ it might possibly, find an adverse Attorney-General, or Minister of Trade and Customs, or Comptroller-General, who would decide against it, with the result that its industry would be ruined.
– The case would have to go before a jury.
– I have stated my object in submitting the amendment. It is not fair for the Attorney-General to say that I am acting in the interests of a few large farmers.
– I did not say so.
– That is the honorable and learned gentleman’s usual method of attempting to discredit those who are opposed to him.. If the amendment is not quite upon right lines, it can be further amended. I intend to take a division upon it, with a view to showing whether the sense of the Committee is with the farmers or not. The leader of the Labour Party, when he represented a farming constituency, accepted a similar proposal, but now that he intends to contest a city electorate he speaks in a very different manner.
.- I wish to say that the statement of the honorable member for Echuca is absolutely incorrect. I cannot apply to it any stronger term in this Committee, but, as a matter of fact, I did not accept the proposal to exempt farmers from the operation of the Arbitration Act. I fought the proposal, as the honorable member ought to know. I fought it when I was representing a farming constituency, and I advocated the inclusion of farmers in the Arbitration Bill when I represented an agricultural electorate in the New South Wales Parliament. In a number ‘of other instances to which I might allude, I have declined to encourage the farmers in my district to look for any special exemption from the laws of the State. They have never asked for it, and I have yet to learn that they need a special champion in this House to seek for them privileges which are not extended to other classes of the community. I do not believe that the farmers will thank the honorable member for his pretended sympathy with them and for practically charging every one of them with having criminal potentialities, from which he has to save them. According to his own showing, if it were not for him, every one of his constituents might be in gaol. If that is his estimate of them he is welcome to it.
.- I opposed the proposal to exempt farmers from the operation of the Arbitration Bill, and, therefore, I cannot be accused of inconsistency upon the present occasion. I have always opposed class legislation, and I regard the amendment purely as an attempt in that direction. 1 represent not only farmers, but the residents of a city, and I find that one class cannot get on without the assistance of the other. It is a reflection upon the manufacturers and importers to urge that it is necessary to pass a law to punish them for their misdeeds, whilst exempting the farming portion of the community from the same penalties. I am aware that there have been combinations on the part of farmers and dairymen-, but they have not been to the detriment of the public, and therefore would not come within the scope of this measure’. It is a mistake to legislate specially for one class, and therefore I oppose the amendment.
– If there be any question of consistency involved in this matter, I think that the leader of the Labour Party and the honorable member for Bass can fairly claim to have been consistent. But there are other honorable members opposite who did support the proposal to exempt the farming classes from the operation of the Arbitration Bill.
– There is no parallel between the two cases.
– The claim that there was did not originate with me. The honorable member for Bass appeared to think that there was an analogy between the two. But I did not rise, however, with the object of drawing attention to the painful position occupied by any honorable member opposite. I rose chiefly to ask a question which has a very serious bearingupon this matter. The point which I desire to put to the AttorneyGeneral is that it will be difficult for any industry of the agricultural class in Australia to compete with any similar industry in the Commonwealth if the words. “ any Australian industry,” which appear in clauses 4 and 5, mean the whole of the industry, and not merely a portion of it.
I ask the Attorney- General what is the exact meaning of those words.
– I have been waiting patiently for some honorable member to enlighten us regarding the possibility of this much-dreaded combination of farmers. A great deal of nonsense has been talked about a possible combination of farmers to ruin their own industry. In connexion with the coal industry and the manufacture of agricultural implements, I would point out that the trade is under the control of a few individuals.
– What about sugar and tobacco ?
– I do not regard the Colonial Sugar Refining Company as being engaged in a primary industry. I class that industry distinctly as a secondary one, and, further, it is one which would not come within the operation of this amendment.
– Under the amendment the sugar-growers of Queensland might combine against all the rest of the sugargrowers of Australia.
– Does the Attorneygeneral seriously ask the Committee to suppose that the whole of the cane sugargrowers in Queensland and New South Wales would enter into a combination to ruin another portion of that industry?
– The amendment would enable the Queensland cane sugar-growers to try and ruin the beet sugar-growers elsewhere.
– Does the AttorneyGeneral say that the object of this Bill is to prevent a combination of the Australian sugar-growersfrom ruining the beet sugar-growers of Germany?
– The honorable member does not think that he is talking in Berlin.
– The honorable and learned member knows that practically, there is no beet sugar grown in Australia, and, therefore, if he is going to prevent beet sugar from competing with Australian cane sugar, it must be beet sugar grown in another part of the world. The whole history of combinations, if it has shown one thing, has shown that every trust which has tried to make a corner in a perishable article has brought ruin and destruction upon its members. In the United States millions and millions of money have been spent in an attempt to corner wheat, but it has always failed. The attempt was made, not by the farmers themselves, but by the trustmongers in the cities. I would ask the Minister of Trade and Customs, or the AttorneyGeneral, if, in Australia or outside, there is any record of a combination of farmers having deliberately set themselves to work to ruin other farmers in order that they might receive an advantage from the destruction of an industry ?
– This amendment assumes that there will be, and that they will have no regard for the other farmers who will be ruined.
– I gather exactly what the honorable member means; but if I want to find any one who can teach farmers how to work, or teach the representatives of farmers what they want, I shall go to an honorable member who knows absolutely nothing about the matter, and who does not represent a farming constituency.
– If they will not combine, why move the amendment?
– There are certain little combinations among the primary producers which are made really in their own interest, and which are not injurious to the public. We have a combination of cooperative companies, and I am hopeful that the whole system of co-operation will be enormously extended amongst our farmers. I think that anything which tends to prevent co-operation amongst the farmers is not a step to benefit their interests or to promote the interests of all Australia. So long as they are not seeking to take an undue advantage of the public or of any one else, all these combinations or arrangements must be mutually beneficial.
– We all agree to that.
– The Bill will not touch them at all.
– Taking theBill as it stands, it places it in the power of any one to charge any such combination with a criminal offence, and the onus of proving his innocence is thrownupon the defendant.
– That is not correct.
– I must not discuss clauseII, but if the Attorney-General will tell me that under that clause it will not be possible for an individual to lay a charge against a combination, and that its members will not be treated as criminals until they can prove their innocence, then I cannot understand plain English when it is in front of me.
– I can say that it is not so, as clauseII has nothing to do with criminal matters.
– But the clause puts it in the power of any person to lay a charge against a combination of persons. I care not whether it is a co-operative sugar company or a co-operative cream company or a co-operative shipping company, the whole onus of proof will be thrown upon them, and they will be treated practically as criminals until they are in a position to establish their innocence.
– The honorable member is quite wrong about that.
– I do not believe that it was ever contemplated in any part of the world that a Bill of this kind would deal with primary producers, and, therefore, I shall support the amendment.
Question - That the words proposed to be inserted be so inserted - put. The Committee divided.
Majority … … 15
Question so resolved in the negative.
Clause agreed to.
Motion (by Mr. Deakin) proposed -
That the House do now adjourn.
.- When the question of the redistribution of seats was before the House, the question of naming some of the constituencies was raised, and I told honorable members that I would give them an. opportunity to make any suggestions for the naming of constituencies before the proclamation was issued. I gave instructions, and I now have everything in readiness to proclaim the districts. In accordance with my promise, I desire to mention to the House the names of the electorates affected which require renaming. In New South Wales it is proposed to call Division 3, which isa Sydney electorate, the “ Cook “ electorate, and to name Division 10 the “ Nepean “ electorate. Division 23, which is the new electorate constituted1 by combining Bland, Orange, and Canobolas, it is proposed to call “Killara,” which is the native name of the local river, and was, I am informed, the original name suggested. In Victoria, it was proposed originally to call Division 3 “Clifton Hill,” but as there is a State electorate of Clifton it has been suggested that the name for the division should be “ Batman.”
– There is no Clifton- electorate in Victoria j Clifton Hill is in either Jika Jika or Fitzroy.
– I made inquiries, and was informed officially that there was a Clifton electorate in the State. Then, as to Division 4, that has been named “ Maribyrnong,” and, as no part of South Melbourne is in the old electorate, it is proposed to call Division 8 “ Fawkner.” Division 20 it is proposed to call “ Laanecoorie. ‘ ‘
– Why “Laanecoorie” ?
– I am informed that 60 per cent, of the electors are in the present electorate of Laanecoorie.
– Why not name the division “Talbot.”
– “ Laanecoorie,” which is the native name, seems the more appropriate.
– It is not the more appropriate name.
– The honorable member may, of course, hold a different opinion from myself. In Queensland, it is suggested that the present constituency of Maranoa shall be called “ Amooba.”
– I prefer “Maranoa” to “Amooba.”
– Then, as to the present constituency of Kennedy, in Queensland1, it is proposed to name that “ Maroomba.”
.- As I have already said, I much prefer “ Maranoa” to “Amooba.”
– I understood it was the desire of the honorable member to change the name of the Maranoa electorate.
– Well, I ‘ prefer “Maranoa” to “Amooba.” The Minister might as well propose to call the electorate a boomer - because it is “Abooma” of an electorate. I advise the Minister to leave the name “ Maranoa.”
.- As an elector of the division proposed to be named Laanecoorie, and only as an elector, I admit that 60 per cent, of the electors in the old division of Laanecoorie are in the new division, while only 40 per cent, of the electors represent the old division of Corinella. But this electorate, while not coterminous with the county of Talbot, is more coterminous with that county than, I suppose, any other electorate with any other county. The Commissioner proposed to call the division “Talbot,” which, undoubtedly would be the proper name. I do not see that the presence of 60 per cent, of the electors of the old division of Laanecoorie justifies the Minister in giving the new electorate the same name. As a fact, the new electorate has as much right to be called Corinella. This matter does not now affect me as a member, though itmight have done so; but I think that the Minister is yielding to an unwise idea in departing from the name suggested by the Commissioner. The new division is not the old electorate of Laanecoorie, and it is a misnomer to retain that name. Laanecoorie is a small spot at the extreme end of the new electorate, and’ the county of Talbot, which contains three or four large towns, such as Castlemaine and Maryborough, is entitled to have its claims recognised. I do not wish: to make any suggestions which I ought not to make, but I should like to know why the name has been made Laanecoorie? Is it simply because it contains 60 per cent, of the old Laanecoorie electors, and only 40 per cent, of the electors of Corinella ?
– Laanecoorie seems to be a suitable name.
– It is not a suitable name. The new electorate is not the old electorate of Laanecoorie, but practically the county of Talbot, if any regard is to be paid to geographical conditions. I know that many of the electors were, like myself, satisfied with the proposal of the Commissioner, and will not be satisfied with the proposal of the Government.
.- While agreeing with some of the names suggested by the Minister, and with the desirability of adhering to native names wherever possible, I do not think it wise to change the proposed name of “ Clifton Hill “ to “Batman.” There is no State electorate of the name of Clifton, although there is a division of Clifton in the State electorate of Fitzroy. As it is proposed to change from one English name to that of one of the early settlers, it would be as well to retain the name by which the district is known. The electorate which it is proposed to call “ Batman “ consists of Jika Jika, and part of Fitzroy, and the whole of the Collingwood electorate.
.- I have a suggestion to make in regard to the naming of the Hunter electorate. These names very often have old associations, which carry us back many years, and the Hunter River district was one of the earliest settled in the whole of the Colonies. It has always been known, as long as I can recollect, not as “Hunter,” but as “The Hunter.” To show how that idea is impressed on the people, I may state that an elector df mine the other day said he was of opinion that the letters “M.H.R.” stood for “ Member for the Hunter River.” While I do not believe in double-barrelled names, but rather in shortening them as much as possible, I think it would be much more appropriate if this electorate were called “The Hunter.”
Question resolved in the affirmative.
House adjourned at 10.40 p.m.
Cite as: Australia, House of Representatives, Debates, 3 July 1906, viewed 22 October 2017, <http://historichansard.net/hofreps/1906/19060703_reps_2_31/>.