2nd Parliament · 3rd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
– Has the Prime Minister had his attention directed to the latest kite flown by the free-trade organ, apparently with a view to discrediting the Ministry, and causing consternation amongst the Protectionist Party in the country? Is he further aware that the article alluded to not only appears in the Argus, but is also placarded on its news boards in the following sensational fashion : -
– RUMOURS OF RETIREMENT.
Is there any truth in this mischief-making story ?
– It is true that two years ago, when a private member, I had decided upon retiring at the close of this Parliament, and was actually seeking in Ballarat for a suitable successor. Since then unexpected obligations have been cast upon me which have entirely altered that purpose. Except by the consent of my colleagues and my party, with both of whom my relations are most cordial and satisfactory, I do not now feel free to take any such step. The rumour appears to have arisen owing to some replies of mine to questions recently addressed to me by old friends referring to appointments here and in London about to be authorized by Parliament. My answer has been that those positions should be filled by better men, and in the event of my retirement frompublic life I am not a candidate for any of them.
– Was a confirmation or denial of the rumour asked for by the representative of the newspaper in which it is published?
– I wish to know from the Minister representing the Minister of Defence, whether a report concerning the dismissal of certain men from the Warrnambool Field Artillery has yet been received, and, if so, whether it has been considered. If it has been considered, is it intended to cancel the discharges, and to reinstate the men ?
– A report has been received, and is now under the consideration of the Minister and the Board ; but no decision has yet been arrived at. When a decision is arrived at, the honorable member will be informed as soon as possible.
– Is the Minister representing the Minister of Defence yet in a position to reply to the questions which I asked on Thursday last in reference to the parade of troops at the opening of the Victorian State Parliament?
– Yes, and I have been furnished with the following answers: -
– Has the attention of the Prime Minister been drawn to the report of the Kanaka Commission, published in to-day’s newspapers, and does he, in view of the important recommendations therein contained, and the necessity for giving early attention to this question if the islanders are to be returned to their homes without harm to themselves, intend to have the matter settled promptly?
– Through the courtesy of the Queensland Government I obtained a copy of the report last night. It will receive my immediate personal attention, and is now being analyzed. A communication on the subject will probably be made to the House.
– Has the Cabinet yet considered Driver Fay’s case, and, if so, has it come to any decision in regard to it?
– That and other similar cases are now being considered by the Minister of Defence, in order to establish, if possible, a uniform system for dealing with these matters.
– Can the Treasurer make a statement to the House as to the position of the Australian coinage question, the settlement of which has now been pending for about four years?
– I think that it will be convenient for me to deal with that matter with others when delivering my Budget.
– Has the Prime Minis ter read the extract from the Christian World, published in yesterday’s Age, containing statements made by Dr. Sevan concerning the politicians and people of Australia in general ? If so, will he take means to contradict these slanderous statements ?
– The Herald of the night before was much more severe.
– - I have readin externa the article in the Christian World, but it is not incumbent upon the Government to contradict the statements of every Australian who puts his personal and party views before the community.
– Will the Post master-General lay on the table a copyof the schedule apportioning the commission paid to the States Railway Commissioners for the sale of stamps by railway stationmasters ?
– I shall be pleased to lay on the table at the earliest moment possible all available information.
asked the Prime Minister, upon notice -
Whether, in view of the fact that no less an authority on the fiscal question than Sir George Turner has expressed the opinion that “themoment the Tariff Commission touches one line it is impossible to say where its labours will terminate,” and there beinga strong feeling amongst the business portion of the community that a general revision of the Tariff, with its inevitable accompaniment of a serious dislocation of trade, is not desirable, he will consider the advisableness of appointing a permanent body to exercise a continual supervision over the operations of the Tariff and cognate acts, furnish Parliament with periodica] reports as to any evidence of existing anomalies, or such as from time to time may come to light, any evidence of dumpingor existence of combines prejudicial to trade or industry, and generally to keep Parliament informed in all matters relating thereto?
Whether the time has notarrived when the question of the appointment of an InterState Commission should be considered?
– The answers to the honorable member’s questions are as follow : - 1 and 3. So far as the present Tariff is concerned, the Tariff Commission is just completing a thorough examination of the whole of its provisions, so that the question must be taken as relating to the future. When the Tariff Commission has presented all its recommendations and Parliament has thoroughly revised the Tariff, the appointment of such a body, making periodical reports upon existing anomalies or other matters prejudicial to Australian trade or industry, will be well worth consideration.
asked the Minister repre senting the Minister of Defence,upon notice -
Is it not a fact that, in the Imperial Army, officers seeking responsible positions must have passed an examination in “tactical fitness to command “ ?
– I am informed -
Major J. W. Parnell.
Major and Brevet Lieut. Col. H. G. Chauvel,
Major V. C. M. Sellheim, C.B.
Major J. G. Legge.
Major and Brevet Lieut. Col. G. L. Lee, D. S.O.
Major W. G. Patterson.
As regards the Citizen Forces, particulars can be supplied later, if so desired. In a letter received from Lieut-Col. Bridges, dated 31stMay, that officer states that he was allowed to present himself for examination as to tactical fitness to command, and that he has received the certificate under Appendix Villa, of the King’s Regulations.
There was no necessity for Lieut.-Col. Bridges to submit himself for examination as he is already a substantive lieutenant-colonel.
asked the Minister of Home Affairs, upon notice -
– The Public Service Commissioner has furnished the following reply : -
In Committee: (Consideration resumed from 3rd July, vide page 977).
Clause 4 -
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 -
in restraint of trade or commerce to the detriment of the public; or
with the design of destroying or injur ing by means of unfair competition any Australian industry the preservation of which in the opinion of the jury is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an indictable offence.
Penalty ; Five hundred pounds, or one year’s imprisonment, or both; in the case of a corporation, Five hundred pounds.
– This is one of the most important clauses in the Bill, and, as a preliminary to its discussion, or the discussion of any amendment which may be proposed, I should like the Minister to explain the intended effect of paragraph b, which, taken in conjunction with the first portion of the clause reads -
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 with the design of destroying or injuring by means of unfair competition any Austialian industry the preservation of which in the opinion of the jury is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an indictable offence.
– That is very explicit.
– At first sight it might be supposed that the clause was intended merely to protect Australian industries from attack by outsiders.
– It is intended to protect them from attack either from within or without.
– In that case, it would apply to any persons engaged in an Australian industry who might be regarded as engaging in unfair competition. For instance, if certain persons engaged in an Australian industry extending beyond any one State were competing with another set of persons engaged in the same industry, would an inquiry be made as to the legitimacy of their operations ?
– I understand that a manufacturer may kill a rival, but not an industry ?
– Some remarks made by the Attorney-General last night have caused me to make my present inquiry. I desire to know, whether it is proposed to deal with a competitor in an Australian industry, that is to say, to inquire whether his competition is fair or unfair.
– The scope of the clause would extend to such a case.
– Then it would be boundless.
– If any one is doing an improper thing, whether he be engaged in an industry or out of it, he will be amenable to the law.
– That is exactly what I want to know. If two firms were competing within an industry, would an inquiry be made into the fairness of the competition, which might have no effect on the industry, but might seriously affect one or other of the firms engaged ?
– Does the honorable member refer to such a case as that mentioned1 by the honorable and learned member for Bendigo, namely, a combination of certain “harvester manufacturers?
– Yes. If certain harvester makers combined to compete against other harvester makers, would an inquiry be made as to the legitimacy of their operations?
– Yes, if there were any necessity for it.
– Yes; but how is a decision to be arrived at as to the necessity for an inquiry? Is an inquiry to be entered upon if it is shown that an industry is being injured, or merely on the ground that one firm, or set of firms, is carrying on unfair competition? Is it not necessary, under the clause as it now stands, to show that an industry is being injured : or is it merely requisite to prove that certain persons are operating with the design of injuring an industry?
– Their operations mav injure the industry in which they are engaged, or some other industry.
– If the clause means all that the Minister’s statements seem to indicate, its operation will extend into the ramifications of every business. Apparently, it will apply not only to the operations of persons outside the Commonwealth, but also to the actions of those within an Australian industry, even though there may be no injurious, effects. A design to injure may be attributed to those who are operating within an Australian industry. In view of the powers which appear to be conferred by the clause, I should like to know, precisely, what the intention is. The clause may cover more ground than is intended.
– I should have preferred to have an opportunity, before the honorable ]member spoke, to explain how it is proposed to amend the clause. I intend to omit the word “wilfully” in the first line, and to make it read in the second line “ or continues to be a member of.” Then in paragraph a I propose to strike out the words”in restraint of” and insert the words “with the intent to restrain.” Then in paragraph b I propose to strike out the words. “ with the design of destroying or injuring “ and to insert in lieu thereof the words “ with the intent to destroy or injure.”’ Further, I intend to strike out the words”in the opinion of the jury.” The honorable member desires to know whether it is intended to take action in cases where certain manufacturers in an Austraiian industry are injuring another section of manufacturers, or the industry itself. So far as I can judge, in the event of certain manufacturers combining in any way to destroy others engaged in the same industry, to the ultimate injury of the public, their case could be dealt with under thisclause. It is hardly likely, however, that such a case would occur. The honorable and learned member for Bendigo last night described a combination which had taken place among certain harvester manufacturers. If such a ring were formed with the design to destroy others engaged in the industry, I think that the combination could certainly be dealt with under the clause.
– The Minister means that one manufacturer may not destroy another manufacturer.
– Not by forming a combination with others.
– That would practically destroy all competition.
– There is a great difference between ordinary trade competition! and such operations as would be engaged in by a combination backed up by large capital with the object of destroying or injuring others engaged in an industry, to the detriment of the public. Such an organization would gradually eat up ali competitors, and ultimately destroy all competition. Such a case would be on a parallel with that of the International Harvester combine which is now introducing machinery into the Commonwealth. I 1had a case before me this morning which indicates that there is an attempt being made to prevent the introduction of bootmaking machinery into the Commonwealth, and thus to injure the local industry.
– The Bill would not touch’ such a case as that ; the machinery is manufactured’ subject to a. rovalty.
– I am not referring to the case so far as it is affected by a royalty, but I am speaking of a combination which has been entered into with a view to injure an Australian industry. “Such a case would come under the operation of the Bill.
– Is it not complained that our boot manufacturers cannot obtain the machines?
– I am informed that the machines are in existence, and would be obtainable but for the intervention of a powerful combination. However, I do not wish to go into the details of that case. Where trade is being carried on between State and State, and an industry is being seriously interfered with by the operation of a certain section of those engaged in it, it is intended to interfere, but not to the extent indicated by the honorable and learned member for Northern Melbourne, namely, to the destruction of all competition. Where one manufacturer is competing with another in the ordinary way, no action will be taken, but the operations of an octopus combination which would ultimately destroy an industry would come within the scope of the clause.
Mr. GLYNN (Angas) [2.57J.- The explanation of the Minister does not agree with the actual wording of the clause. We know that although Ministers are often actuated by the best of intentions, their administration is not attended by the best results. The operation of the clause would he far wider than has been indicated. The
Minister speaks about the clause applying to the operations of octopus-like trusts, but it would extend equally to individuals engaged in ordinary competition in an Australian industry. The tribunal that would be called upon to determine whether such competition was fair or unfair, and also whether the industry was one the preservation of which, would be advantageous to the Commonwealth, would be, not the .Minister, but a jury, which would not even be a special jury.
– I thought it was generally understood that it was intended to provide for a special jury.
– I have not heard of that before.
– An amendment having that object is among those that have been circulated.
– I am very glad that we are having submitted to us a series of amendments, which will be calculated to tone down the Bill to some extent, and modify its ridiculous effects. I would point out that even a special jury might be composed of men of the same cast of political thought. The jury might be composed wholly of protectionists, or wholly of freetraders, or of a majority on one side or the other. Moreover, we might have a jury in one district giving one definition! of what was advantageous to the Commonwealth, and another jury in some other place arriving at an entirely different decision. Suppose, for instance, we obtained a decision from a jury in Melbourne that a certain industry should be preserved - would that decision become effective throughout the Comomnwealth, or would the decision with regard to that point be subject to the verdict of every jury that might sit from time to time? We might have a number of conflicting decisions, or differences of opinion.
– That would be all in favour of the defendant, because, if one man is in his favour, he cannot be convicted.
– That would be in the case of a difference of opinion among the members of a jury. It will certainly not be advantageous to the Commonwealth if broad questions of political economy, which lead to such lengthened disputes in this House, are decided bv any jury which happens to be selected in a particular case, with the views of a section of politicians being put upon the one hand by the Crown prosecutor with the mildness which ought to characterize the prosecution, and on the other with all the emphasis of a partisan in politics. The idea of a jury being called upon to decide these abstruse questions of political economy. seems to me to be absurd, and cannot possibly be productive of any good. It cannot lead to the stability of the institutions of the Commonwealth.
– What is the alternative?
– I am not bound to suggest an alternative. I do not think that the evils against which this clause is directed really exist to an extent to justify it. It is a provision which does not attack overt acts, but one which attacks intent. The amendments suggested by the Minister show that whilst originally the Government followed the lines of American legislation by attacking operations, they now wish to tone down the Bill by making the terminology of the clause fit in with its true purpose, which is to attack intent.
– Our intention was the same all through.
– The road to a certain place is paved with good intentions. We can only judge of the clause by the form in which it appears before us. It speaks of “ restraint of trade.” That expression is now being modified, and in lieu of it we are to have the words “ with intent to restrain trade.”
– Those words will take the place of the word “wilfully” in the first line of the clause.
– When I was speaking upon the second reading of the Bill. I pointed out that the word “ wilfully “ means “ knowingly,” and that as it is used in this clause, it qualifies the words “ makes or enters into any contract.*1 I do not think there is much in the proposal to strike out the word “ wilfully.” Iff a man enters into a contract, it must be presumed that he does so with a full knowledge of what he is doing. Under this clause, a person may be punished for engaging in competition which a jury may think is likely to be unfair in certain circumstances.
– He may be punished because he succeeds.
– -Exactly. The whole of human life is made up of competition. The extent of it may be moral or immoral. Yet that competition is to be declared a wrong, even though it might act as a stimulus to “the effectiveness of certain industries. Competition is not necessarily between corporation arid corporation, or between corporation and individual, it is between a person and persons. Again, the mere fact of a man belonging to a company which has entered into such a contract will render him liable, by virtue of his membership, to the penalties imposed by this clause.
– Is that so?
– That seems to me to be so. If a man is a member of a company he is a member of a combination. If he is a member of a company which enters into a combination with other companies, he is surely both a member of the company and of the combination. Perhaps the AttorneyGeneral will tell US that the word “ person “ in the Bill is meant to apply to one of the units of the combination.
– It has always been held in America that a man is not a member of a combination merely because he is a shareholder in a corporation.
– My contention is that these words are far wider than is the policy of the Government. They not only cover the cases which have cropped up in America, but they are more far-reaching. Surely it is not straining the meaning of the word “company” to say that if a man were a member of a company which belongs to a combination, or if he were merely a member of a company which engaged in what was deemed to be unfair competition, he would be liable to the penalties prescribed by this clause. If there be any sense in the provision, the member of a company is liable to the penalties imposed by it. I repeat that under the clause a person may be liable for contracting irrespective of whether he is a member of a combination! or not, and if a person may be thus liable, a corporation may be equally liable. The policy is the .same both in regard to a person and to a. corporation. If that be so, this legislation is exceedingly wide, and will attack all sorts of legitimate competition in healthy industries. If honorable members will look at clause 6 they will see that if a commercial trust or an agent of a commercial trust enters into competition in relation to any of our local industries, it is -prima facie evidence that that trust is guilty of an offence. The clause in question provides -
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.
It then goes on to declare that the fact that a trust is part of a combination is prima facie evidence against a member of that trust or against the trust itself. If honorable members will turn to paragraphs b and c of clause 6, they will see what dangerous questionsit is proposed to hand over to a jury for decision. For instance, if the jury thinks that the competition “would probably, or does in fact, result in a lower remuneration for labour,” or if it “would probably, or does, in fact, result in greatly disorganizing Australian industry, or throwing workers out of employment,” it is to be deemed unfair. The jury may be mistaken. They may merely think that it lowers wages. But their opinion is to be unchallengeable, even though it maybe the most ridiculous one in creation.
– Other very serious matters come before juries for decision.
– But we ought not to increase the number of perplexing problems handed over to them for determination.
– What is the alternative?
– I am not here to construct a measure for the Government, but to criticise the Bill which has been submitted by them. I am not prepared to accept as a panacea for all evils, legislation of a more far-reaching character than is the declared policy of the Government. Paragraph c of clause 6 states that competition shall be considered unfair if it does in fact disorganize Australian industry or throw workers out of employment. It is impossible, in the onward march of progress, to conceive of any case in which for a time men are not thrown out of employment by a greater degree of effectiveness1 being given to capital. All mechanical appliances temporarily disorganize labour, although they ultimately add to the wealth of the community. But under this Bill, if a jury think that certain competition tends to disorganize an Australian industry, down comes the penalty upon the party responsible for that competition. It seems to me that in handing over these functions to scratch juries we, as a Parliament, are abrogating one of the highest duties that we have to discharge, namely. the decision for practical purposes of some of the most intricate questions of political economy.
– The honourable and learned member may find that there is less knowledge of political economy in this House than is possessed by the average jury.
– We have not tested that. I hope that the Committee will seriously consider the clause before deciding to retain it in its present drastic form.
– I congratulate Ministers upon the proposed amendments in this clause - amendments which will have the effect of making it clear that a man is not to be imprisoned or fined unless he has designedly committed a wrongful act. I understand that the Government propose to strike out the word “ wilfully” in the early part of the provision’, and to insert the words “with intent” before the words “to restrain trade.” That amendment overcomes the criticism which I ventured upon during the debate upon the second reading of the Bill. But may I also suggest to Ministers that the words “ to do any act or thing “ are not necessary ? A combination may accomplish just as effectual work by refusing to do “ any act or thing “ as by doing “any act or thing.” It may say, “We will not deal with So-and-So,”‘as well as “We will deal with So-and-so.” A very important question was put to the Minister by the honorable member for North Sydney - a question which goes to the very root of this legislation. I understand that he desires to know whether the effect of paragraph b of clause 4 will be to render it criminal to try to destroy a rival in trade.
– Or to injure him.
– Yes. I am putting the extreme case in order to make my illustration clearer. Is it to be a criminal act to endeavour to destroy a rival in trade as well as to attempt to destroy the whole industry ? As I read the clause I take it that there must be the intention to destroy the whole industry, and that the old gospel by which each man maykill his rival in trade is to be allowed free play and scope.
– It says “ destroy or injure “ the whole industry.
– Of course there are hosts ofways of accomplishing that end. It is possible for a big monopoly to endeavour to kill its different rival firms in detail. If a jury found that it was its intention to destroy the whole Australian industry in detail its action would then come within the scope of the offences mentioned.
– But the Minister’s reply did not show that.
– I admit that. If a merchant upon one side of Collins-street is supplying the Riverina, Queensland, and other places with goods, whilst another merchant upon the other side of the same street is endeavouring to supply them, one competitor may try to ruin the other, and he is to be quite free to do so, so far as the law isi concerned. He will be free to make use of glorious competition under the Bill, just as he has been up to the present time. It is only in the event of an attempt on the part of a combination to destroy the industry as a whole - not merely that of a particular firm - that a criminal offence comes in.
– Does that mean the industry of the State or the industry of the Commonwealth, or the industry of a city ?
– As I understand, it must be in relation to trade or commerce with other countries or among the States. Therefore, it must be the case of a business whose operations extend beyond the limits of any one State.
– Take the coal industry of Australia, the coal industry of Victoria, and the coal industry of New South Wales. The honorable and learned member says it must be shown that the combination is going to destroy the whole industry. Does he mean the destruction of the industry of a State, or the destruction of the whole industry of the Commonwealth ?
– The honorable member asks whether, if the intention of the combination be to destroy only the coal industry in Victoria, that will be ar. offence under the clause.
– I want to know what coal industry is meant?
– If there be a distinct dividing line between the Victorian coal industry and the Australian coal industry, then I should say that it would be an Citfence under the clause. But speaking right off, I cannot conceive how there could be any distinction between the Victorian coal industry and the Australian coal industry. Of course there are different interests, and so on. So far as I can see here, it must be an Australian industry.
– Suppose that by agreement the Newcastle coal-owners agreed to raise the price of coal, would that affect the position of Victorian coal-owners beneficially or otherwise?
– I do not know. I understand that the honorable member isspeaking of a combination of Newcastle coal-owners to destroy the Jumbunna and: Outtrim coal industry.
– The honorable and learned member could not consider it to be destroying the Jumbunna coal propertiesif the only object of the combination were to put their coal upon the market at what thev conceived to be a fair price.
– That is on the same lines as the question put by the honorablemember for North Sidney.
– Then the hon’orable member comes down to competition between the industry of one mine and the industry of another.
– I should say that it must be shown to be an Australian industry, which of itself was a distinct industry, and it is very hard to say that the coal-mining industry in Jumbunna,. Outtrim, and elsewhere in Victoria is distinct from the industry of coal-mining iii Australia. However, that is a matter which would have to be determined according to the facts and evidence in each case.
– Ought we not to determine it in the Bill?
– If the honorable member can make it clear I shall help him,, but it is a matter into which I have not gone so fully as he evidently has done. I have submitted to the Ministers a provision which may be regarded as an amendment of this clause, or a new clause, and’ which I hope will meet with the approval of honorable members. It is drawnon the same lines as I indicated in my speech on the second reading of the Bill. There are a number of men who want honestly to obey the laws, if they can only understand what they are. They do not wish to be left in uncertainty as to whether under this Bill they are doing what a jury may say is detrimental to the public or is unfair competition. Whether a thing is to the detriment of the public or is unfair is so much a matter of opinion that they would very much like to feel’ that they were acting free from all danger. In these cases a man must berried bv a jury. Juries may go wrong, but we cannot get better tribunals for dealing with facts or things which haveoccurred. At the same time, if it came to a matter of economic opinion, so rial’ opinion, opinion as to what was for the good or .damage of the public, or as to what was fair or unfair in the way of competition, then the whole regiment of prejudices would arise, and as regards the jury, everything would depend upon their interests, their surroundings, and the State aspect.
– Take -the case of the coal industry.
– That is a very pertinent matter in this respect. There we should have local interests coming into play upon the question of what was or was not to the public damage, and also as to whether the competition was unfair or not. There are many men who have no objection to the terms of their combination being seen by anybody, and who would like to feel that they were acting without their necks in a halter, without there being, any danger of their being attacked for doing things to damage the public or for acting unfairly. What I have suggested is that if these men should wish to do so, they shall be at liberty to submit to the Department their agreement, and ask, “ Is this to the detriment of the public or not ; does this involve unfair competition or not?” They would not be obliged to submit the document, but at the same time, if they took that course, and the Minister, after consulting experts, and looking into the whole matter, were of the opinion that the competition was not to the detriment of the public or unfair, he might give a cer.tificate to that effect, and, so long as it lasted, the man would be free to act under the agreement.
– What a fine field “for favoritism that would open up.
– The honorable member -will see that there would be no bigger field for favoritism under this proposal than there is in the case of other matters which come before Ministers in the course of their administrative duties. It may be said, as it has been, that there will be favoritism in the matter of prosecutions under the Customs Act. Again,, in the matter of Tariff decisions, we may continually have danger of favoritism. If the honorable member could suggest any better tribunal than the Minister for the purpose, I should be very happy to accept it. But I conceive that, if the Minister is to retain control of matters, we cannot do better than put the responsibility upon him.
– Would the Minister’s refusal to grant a certificate prevent the man from going on ?
– No. If the Minister refused to give the certifiate, the man could take the risk of going on, and say, “ Prosecute me, if you like; I shall prove that the combination is all right.” Speaking with a little experience in the drawing of agreements, including combination agreements, I should say that ninety-nine cases out of a hundred are innocent, and would not come within the measure; and that, of the ninety-nine cases, the great majority would be perfectly willing to have their agreement known and watched.
– I do not think so, because they would be giving away the secrets of their business.
– Quite so; but it will be observed that there is no compulsion put upon any one to go to the Minister. The amendment simply means that if a man’ wished to get the protection of a certificate he could make an application, and if the Minister granted it, the man would be protected so long as the certificate lasted. But there must be power to the Minister at any time to withdraw the certificate if he thought fit.
– Suppose that a man submitted an agreement which he was advised was proper, and that the Minister took a different view, the fact that he submitted the agreement, and that the Minister did not approve, might tell in the Court against the man.
– I have no objection to the insertion of a provision to the effect that the refusal of the Minister to grant a certificate shall not be to the prejudice of the man submitting the agreement, and shall not be given in evidence.
– -“But suppose that the Minister refused -to withdraw his objection, and that the man was still breaking the law. Does the. honorable and learned member mean that the Minister would allow men to break the law?
– No. So long as the man had the Minister’s consent, there would be no breaking of the law. I ask honorable members to consider my proposal, which I admit must be looked into very seriously. I believe that all sides of the Chamber are impressed with the view that, whether this legislation be futile or effective, we must take every precaution that is within our power to prevent any honest man from being put in gaol, unless it be shown that he had wilfully broken the law. Imprisonment and fine are attached to the commission of this offence. I feel intensely the importance of not overstepping the mark, and of not making a number of men unhappy, and in the conduct of their business uncertain lest, perhaps, some jury, full of prejudices on different subjects, might say, “ That is acting to the danger of the public, or acting unfairly.” I am willing to move my amendment as a new clause or as a proviso to this clause, just as the Government may see fit to prefer, because I am anxious to help them with the frame- work of the Bill as far as I can.
– I have listened to the explanation of the Minister, and, while he may be given credit for the best intentions in the world, it is incumbent on us to take care that those intentions shall not fail to be carried out when the Bill is passed. The Minister talks in quite a fair way about octopus monopolies and trusts ; but this clause goes much further. The honorable gentleman may have no present intention of coming into conflict with any of the ordinary trading concerns of this country, but, as the clause is framed, it appears to me to be inevitable that friction and trouble will arise in the common occupations of Australians. That is what we want particularly to avoid ; and any statement as to the intentions of the Minister cannot, I am afraid, be accepted by the Committee as a safeguard. I say frankly that recent experience makes us a little bit wary of the Minister. We remember, for instance, the attitude of the honorable gentleman, and also of the Attorney-General, on the Commerce Bill. We now find the Minister of Trade and Customs taking a course directly contrary to statements he made when that Bill was going through Committee. As a result of a great deal of agitation and complaint, the Minister has modified his regulations, and, I understand, has made them of a more reasonable character. But he could very readily, as he has declared, have pursued a drastic course under the terms of the Commerce Act; although, when the measure was going through Committee, he expressed himself as having no such intention or purpose. And so with the Bill before us. The Minister’s intentions, however good theymay be at the present time, may melt as the mist before the rising sun, if some interested individual in the ordinary administration of the Department comes before him with a complaint. A case may then be made out under the Bill which will require the Minister to act, if the law is not to be a dead letter. Therefore, it isto the terms and provisions of the law, irrespective altogether of the intentions and wishes of the Minister, that we have to look in discussing this matter in detail. I venture to say, with the greatest possible deference to the honorable and learned member for Northern Melbourne, that the words “ Australian industry “ do not mean an industry the boundaries of which are coterminus with the boundaries of Australia.
– I have not gone so far as that.
– I understood the honorable and learned gentleman to say that “Australian industry” in this clause evidently means an industry as a whole.
– Yes, as a whole; but it must be an Australian industry.
– As distinct from a State industry, for instance?
– No ; I have not gone so far as that - I mean as against a foreign industry.
– The words “ Australian industry “ are, I take it, conditioned by the term “ in relation totrade and commerce among the States.”
– They mean an Australian industry as contra-distinguished from a non-Australian industry - a foreign in dustry.
– Yes; but the whole troublemay arise as between two Australian industries operating within Aus tralia.
– Two distinct Australian industries.
– Two distinct phases of the sameindustry.
– Anindustry would not be hit by the Bill under such circumstances.
– Let me give honorable members an illustration of what I mean.
– The honorable member means two distinct branches of the same industry ?
Mr.JOSEPH COOK.- Yes; If I said phases, I meant branches. For instance, it is known that in Victoria the State Government pay a bonus on the carriage of coalfrom Korumburra to Melbourne. What would happen if Messrs. J. and A. Brown,
– A Royal Commission has just recommended that the State Government shall not give less than 12s. 6d. a ton for Victorian coal.
– In this instance, we have a combination on the, part of the State Government of Victoria and the Korumburra coal-mine proprietors, involving a bonus on the carriage of coal, and the making of such transport arrangements, as may enable the Victorian coal-owners to knock Messrs. J. and A. Brown outof the Melbourne market. That, surely, is a combination clearly intended to injure another Australian coal industry.
– No; they are Australian competitors in the same industry.
– That is the same thing, surely.
– The Minister gave a similar illustration when he said that two sets of harvestermakers could be dealt with.
– The whole purpose of the trust legislation of America is, I take it, to prevent trusts wiping out all competitors in America by unjust and unfair means.
– There is a monopoly clause later on in the Bill.
– But this clause has the same operation.
– This clause has the same phraseology.
– They are two different clauses for differentpurposes. In the case put by the honorable member, if it were intended to create a monopoly, those concerned would be hit by the Bill, but not by this particular clause.
– The AttorneyGeneral may speak of “ monopoly “ if he likes, but the thing is the same in both instances - both come under the penal clauses of the Bill.
– But not under this clause.
– The Bill provides that if anything of the kind is done there may be a penalty of £500, and that
– That does not fall within sub-clause b of clause 4.
– That may be; at any rate, there is a design, by means of special concessions, which mean unfair competition, to destroy or injure another industry in Australia.
– Another industry - no.
– Unquestionably, it is a distinct and separate industry operating in another State.
– The Victorian Government fix cheaper freight for Victorian coal.
– That ought not to affect anybody else engaged in the same industry.
– That is the point with which I am dealing. I say that so long as there are these special freights, the competition between the coal owners of New South Wales and the coal owners , of Victoria is on an unfair basis.
– There are special rates on New South Wales lines.
– That does not make special rates fair.
– I know that.
– All this would have beensettled long ago if the honorable member for Parramatta had not blocked the appointment of an Inter-State Commission.
– Who blocked the appointment of an Inter-State Commission ? So far as I know, I never spoke on the Inter-State Commission Bill. Another case is afforded in that of the Newcastle coal mines and the Lithgow coal mines. It costs, I believe, about 6s. a: ton to bring coal from Lithgow to Sydney. Let us say that the Newcastle mineowners have private railways and steamers of their own, and are thus enabled to place the coal on the market in Sydney in such a way as to prevent the possibility of competition from Lithgow. Clearly that is unfair competition.
– Why is that competition unfair ?
– Anything is unfair which tends to lower wage rates - which tends to disorganize industry; that is according to the definition of unfairness under the Bill. The honorable member for Newcastle spoke of an intention to commit wrong - but what is wrong under the Bill ? A wrong is anything that succeeds in the way of competition - because it succeeds, it is wrong, and the Bill challenges it on that account. This Bill sets up new crimes in our calendar. Acts which are necessary, and which may be the very essence of progress, may be regarded as wrong under the Bill; and, because they mean progress, and, perhaps, temporary dislocation, they must be challenged and investigated.
– I thought the honorable member’s party was in favour of regulating trusts ?
– May I remind the honorable member that he is guilty of tedious repetition?
– I dare say it is uncomfortable to the honorable member to have such a reminder.
– The honorable member for Bland has made the same interjection about twelve times.
– About twice. I think.
– Tedious repetition is against the Standing Orders, and, therefore, I suggest that the honorable member should say something original and fresh. Let us take the question of harvesters. We were told in the House a little while ago - I do not know with what truth - that Mr. McKay had actually changed the locality’ of his works, and gone beyond the jurisdiction of the factory laws and Wages Boards of Victoria. Would Mr. McKay, under these circumstances, not be able to bring unfair competition to bear, as compared with an industry the conductors of which observed the factory laws and the decisions of the wages boards ?
– No; because Mr. McKay would still be under the factory laws which do not apply to wages.
– But suppose a competitor came to the Minister, and said that in consequence of Mr. McKay having changed his scene of operations, the latter was in a position to compete unfairly.
– No; the other man could move his business if he chose.
– Maybe he could, but maybe he could not. Such a man might not have the necessary capital at his back ; and he could point out that his industry had become disorganized in consequence of
Mr. McKay’s action. Having to observe fresh conditions, and not having sufficient capital at his back to enable him to make changes in his mode of operations, he would practically be shut up. That is unfair competition under this Bill. That is disorganization of industry under this Bill. That is intent to injure competitors under this Bill. And so we find that the simplest operations of trade come under this sweeping clause. Then, again, the Judge in the determination of these matters has to have regard to “ Producers, workers, and consumers.” How is he going to have regard to the whole three of them? What may be in the interests of the consumer may be against the interest of the producer and of the worker. For instance, the higher you put up the price to the consumer the more wages, it may be, the employe gets, and the greater is the profit of the producer. What, therefore, may be to the interest of the producer and the worker may be quite against the interest of the consumer. Is the Judge to shake these things together and decide them, and by a compromise strike a balance between them ? I observe, of course, that the consumer comes last in point, of consideration in connexion with all these matters.
– Is not that the natural order.? You cannot consume a thing before you have produced it, can you?
– Is not the worker a producer? Why that distinction at all?
– You have first the producer or the employer, then the worker, then the consumer. Is not that the natural order ?
– I do not see a distinction between a producer and a worker. I take it that a man cannot produce unless he works either with his hands or with his brain. I am afraid that this classification would not stand any economic test. I shall be glad to hear the honorable member for Bland on this fine distinction between producers and workers. He, of course, claims - it is one of his favorite doctrines - that 80 per cent, of the people are workers. I do not know where the distinction begins, and why it is made at all between producers and workers. There is a distinction, intelligible enough, between proprietors, or employers, and employes, but there is no such distinction that. I know of - no intelligible distinction - between pro, ducers and workers. Then there is the consumer. As I have said, what may be to the interest of the worker may be against the interest of the consumer ; and upon what principle is the Judge to proceed in determining whether there has been a. design to interfere with and disorganize an industry to the “ detriment of the public “ and “ in restraint of trade”?
– Members of Parliament may . differ as to what are the interests of the consumer.
– Is not every worker a consumer? How can we separate producers and consumers?
– The honorable member knows that there are distinctions which we observe - rough-and-ready distinctions and classifications of things - that do not always conform to the strict laws of political economy. I suppose this is one of them. It strikes me as being very rough and very ready to make a distinction between producers and workers. At any rate the point I should like to make is this - if Ministers only seek to clip the claws of a few large octopus combinations-
– An octopus would ‘ not have claws !
– To cut away the suckers of these octopus combinations, shall I say ; to cut away their grip .; if he simply contemplates dealing with a few of these large monopolistic concerns, would not paragraph a cover all that he wants to do?
– The honorable member talks long enough to cover twenty clauses.
– I have not spoken for a quarter of an hour.
– It is a waste of time.
– I call your attention, Mr, Chairman, to the impertinent remark made by the Minister to me. It may appear to him to be a waste of time to discuss this Bill, seeing that he does not understand a word of it. Any one who endeavours to get a little enlightenment from him is simply met with these- rude, impertinent interruptions.
– What did he say?
– What is he always saying? He behaves as though he knows nothing about the Bill, and thinks that another who isinquiring about it. knows nothing about it either.
– The honorable member does not seem to know much, about the Bill.
– The Minister does not know anything about it. I repeat that if the Government wishes to deal with a few of these possible monopolies in Australia, paragraph a will cover the intention in that respect, and that this matter of unfair, internal competition may very well be left to itself, upon the Continent of Australia, at any rate. If it is desired to deal with these matters as they affect other countries than our own, then the Tariff is the proper medium, and not a Bill of this kind.
– The Tariff is only for ordinary operations, but this Bill is for very extraordinary operations.
– I do not see that any extraordinary operation is contemplated in paragraph b. It deals only with ordinary competition taking place between the industries of one State, itmay be, and those of another.
– Surely the honorable member will admit that it is not an ordinary operation to attempt to destroy an industry.
– It all depends. If the honorable gentleman starts out to destroy an industry, and does it by employing better methods, better machinery, and better skill - possibly by a patent of his own - is there anything wrong in destruction of that kind ? ‘
– That would be improving an industry.
– Competition of that kind is the very essence of all industrial progress.
– An industry would be improved under those circumstances.
– I know that the industry would be improved in the broadest sense, but at the same time the method would disorganize the people engaged, who did not happen to have the advantage of these new and special methods. It would tend to put men out of work temporarily. It would dislocate the operations of an industry which was not operating upon the same skilful plane. But destruction of that kind is of the very essence of progress, and there could be no progress without it. If it were not for that kind of destruction - the destruction of old, obsolete methods’ - we should be just where the Chinamen are, going round cycle after cycle, century after century, in the same old beaten track. Every new enterprise, every new machine, every new method of competition, every new discovery of science, means a dislocation of industry as it exists to-day. There must always be disorganization while the process of readjustment is going on. But. under this Bill, even that process of readjustment would be open to be challenged, and would be subject to investigation by a Judge and jury, with penalties to be imposed as the Judge may determine. And, after all, a very great deal will depend upon the point of view of the- Judge in relation to these industrial matters. Judges are not perfect beings. They can only do their best. They only guarantee disinterestedness and impartiality. They do not guarantee knowledge of superior industrial skill. Therefore, there is infinite danger surrounding the ordinary occupations of a country under paragraph b, as drawn by Ministers. I say again that, if they merely want to indict the big monopolistic trusts, paragraph a is quite sufficient for the purpose. “ Restraint of trade,” “ detriment of the public “ - those terms are wide enough to cover everything relating to monopolies, relating to the interests of consumers, and relating to the interests of workers and producers. Paragraph i£ is intended to meet a different class of conditions altogether. It is intended, I am afraid, to affect the ordinary competitive operations of business and trade, no matter how fairly they may be conducted. This Bill, I repeat, sets up success as a synonym for injury and unlawfulness. It indicts success as such, and challenges it to prove its right to be success, and its right to exist. We shall have a new class of offences created under this Bill. Therefore, the more strictly we can limit the operations of the measure, so as to be sure that it will only touch those big enterprises at which we profess to aim, the more clearly, I take it, we shall be in accord with the dictates of common-sense, and. as the Minister says, the more clearly we shall approach what he intends the operation of this Bill to be.
– I have listened with a great deal of attention to the speech of the acting leader of the Opposition, and I agree with a great many things which he has said - especially with his last few remarks. There is no desire on my part, or on the part of the Government, to pass a Bill which would have the effect of diving down, even to the most minute detail, into every person’s business. The object of the measure is to deal with the large and offensive combinations which may have been established up to the present, and which may in the future be established; and I shall be very glad indeed if honorable members can suggest amendments to -bring the ‘Bill into line with that object, if it is not sufficiently clearly attained already.
– I suggest the omission of paragraph b.
– I do not think that that is advisable.
– The clause is strong enough without it.
– I do not reply to the honorable member for Parramatta in any spirit of antagonism, but I do hope that we shall make as rapid progress’ as we can in dealing with the measure. We were all last night discussing one clause.
– It embraced a good many things.
– I quite admit that; but still I think that we might progress a little more rapidly than we have been doing. The object of this clause is that, where any serious combination is formed which is going to destroy, or seriously to injure, an industry in Australia, it shall be brought under the operation of this Bill. But the measure is not intended to operate, as the honorable member for Parramatta seems to think, between competitors. There will be the fullest scope for competition. I should be sorry indeed to find that the measure had the effect of interfering with ordinary competition in trade. It is designed for the purpose of preventing the destruction of industries. I think thatthe Bill, as improved, will carry out that intention. I beg to move -
That the word “wilfully,” line 1, be left out. _ Mr. Joseph Cook. - There is no objection to that.
– I intend tq follow this amendment by another one of greater importance.
– There is no doubt that this Bill is anything but satisfactory. But, at the same time, it has been realized by all sections of honorable members that something must be done to curb trusts and to curb unfair trade. Now that we have got into Committee. I was hoping that members of the Opposition - who have stated that they are just as much opposed to trusts and unfair trade as are other sections of honorable members - would propose amendments with the object of achieving their purpose. But, instead of that, I have listened to the honorable member for Parramatta, on behalf of his colleagues, simply talking generalities. I object to the substitution of the words “ with design “ for the word “ wilfully,” because I think that any person committing the offences created by the Bill shouldbe punished, and that there will be very little punishment if the design of the offender has to be proved.
– The words I intend to insert are “with intent to restrain.”
– Why should we distinguish between the offender under one Act and the offender under another? If a man meets a few friends, and takes a glass of Leer in their company, afterwards being led on to further drinking until he becomes drunk, it is no vindication for him to say, when arrested for drunkenness, that he had no design to get drunk, and, if convicted, he will be punished for the commission of an offence. Similarly, any one committing an offence under this measure should be punished. I admit that leniency should be shown to first offenders ; but, when offences are continued, the offender should be severely punished. If the proposed amendment is made, the Bill might as well be thrown into the waste- paper basket, because its provisions will lead only to litigation harassing to the business community, without preventing offences. I shall vote for the omission of the word “ wilful,” but shall resist the insertion of the words “ with design.” How can a man’s design be proved? No one, if charged with an offence, would admit that he had offended by design, and witnesses could not be brought to say what his design was. It might happen, however,that a person who had offended undesignedly might be found guilty of having offended with design, which would be an injustice.. If the Opposition are in earnest in their desire to protecttraders, and to prevent unfair competition,they should not press for the omission of paragraph b. because without it the clause will not go far enough. It is time that the trusts were shown that there is a determination on the part of Parliament that trading shall be fair and legitimate, and if this legislation fails, more drastic means will have to be introduced, until eventually some of those who are opposing the Bill,thoughthey did not care to vote against it. will find themselves obliged to support nationalization, if they wish to prove the truth of their statements that they are opposed to competition in restraint of trade, and to unfair competition. As I pointed out in regard to a clause which the Minister now proposes to amend, if design has to be proved, the person injured, instead of getting treble damages from the offender, may have to bear the cost of the action, and get no damages at all, through not being able to prove design.
– Ihave carefully considered the reply given by the Minister to my request for information, and the enlightenment thrown on the subject by the speech of the honorable and learned member for Northern Melbourne, but neither speaker has in any way convinced me of the effectiveness for any proper purpose, or of the safety, of paragraph b. Replying to the satire indulged inby the honorable and learned member for Northern Melbourne in regard to the commercial competition which seeks to destroy an opponent, I venture to say that, as a rule, it is not usually the aim of commercial men to destroy their rivals. They are actuated by the motives that impel a barrister, for instance, to strengthen his mental capacity and to put forth his best efforts to win cases, so that he may obtain more briefs, and thus win fame and fortune in his profession. In doing this, the successful barrister displaces men who are his inferiors, and thus we find practitioners who, because they cannot, in competition with their superiors, obtain a reputation which will bring them work enough to enable them to live by their profession, are driven from it. But it would be as improper to charge a leading barrister with attempting to destroy his competitors as it is to make that charge against commercial men. I admit that there are exceptions, just as there are barristers who adopt improper methods in attempting to get a connexion. Those engaged in commerce use their mental powers, and put forth their best efforts, first, to obtain business, and then to increase it, and if in the competition others go down, they do so only in the same way as, in other avocations, the unsuccessful sink after collision with the heavier weight of their successful rivals. I allude to the matter only because it is so often suggested here that commercial men conduct their businesses in this respect in a manner different from that in which others conduct their businesses or follow their professions. The difficulties created by the clause have been clearly shown by the discussion which has taken place. I have no hesitation in saying that it was drawn to prevent unfair competition, not between Australian industries, but between foreign and Australian industries only. If there had been any other intention, it would have been expressed more clearly. The Minister of Trade and Customs said that action by an, Australian industry which might injure another Australian industry would entail liability to the penalties here set forth, and that action by combinations or operations within an industry which might injuriously affect others engaged in that industry, or, possibly, the industry itself-
– I said the industry itself.
– In the first place the honorable gentleman spoke of unfair competition between portions of an industry. He said that combinations guilty of such competition would be liable to the penalties of the clause. Even adopting the Minister’s correction, it is evident that the clause was drawn merely to prevent unfair competition from outside. What is the “ Australian industry “ that will be injured or destroyed ? Is it an industrycarried on all over Australia or an industry confined to a State which may be injuredby the operations of those connected with the same industry in another State; or is it an industry in acity which may be injured or destroyed by the operations of those engaged in the same industry in another city ? What is meant by the term “Australian industry”? Those words must be defined; the Bill contains no definition of them. Paragraph a deals with combinations of persons which endeavour to restrain trade to the detriment of the public, and will affect Australian combines or trusts as well as importing combines or trusts; but paragraph b might as well be left out, so far as any effect upon Australian trusts is concerned. I think that the honorable and learned member for Northern Melbourne will agree that there is nothing in paragraph b affecting Australian combines.
– This case occurs to me. A very big concern might be established to work a deposit of sienna found in one Stateonly. I should take its operations to be an Australian industry. , If those en gaged in supplying paint made from other materials resolved to crush the production of sienna, that would be an attempt to destroy an Australian industry.
– It might happen that both the paint produced from, the sienna deposit and the competing paint would be made of Australian material.
– I did not say that both paints mightbe made from Australian material.
– But that case might arise. I submit that the clause is framed to deal with competition from abroad, and that if the paint sold by the combination attempting to crush the sienna production was made from material brought from abroad, the Australian industry affected could be protected under its provisions. But if both paints were made of Australian ingredients, how would one Australian industry be destroyed by the. building up of the one paint industry at the. expense of the other.
– Suppose that a cane sugar combine destroyed the beet sugar industry ?
– How would the sugar industry of Australia be destroyed by substituting cane for beet?
– The beet sugar industry would be quite distinctfrom the cane sugar industry.
-But it would still be the sugar industry. However, we have no definition to guide us, and we have no means of knowing how far a definition of industry would extend. There are many puzzling cases which arise out of the wording of the provisions.
– I wish that the honorable member had had to draft the Bill.
– The Minister did not apply to me for assistance. When a’ request of that kind is addressed’ to me, I shall, at any rate, consider it. The Minister will have to face the position sooner or later, and it ought to be faced” whilst this measure is under consideration. The interjections of the honorable and learned member for Northern Melbournesupport my view. He is a skilled barrister, and as he cannot show me that I am wrong. I may presume that I amvery nearly correct. The clause will permit of combinations in Australia to any degree. The two sub-clauses proceed “in opposite directions. Paragraph a provides against restraint of trade to the detriment of the public. That practically means - as it has been interpreted in America - that trusts shall not tax the public by charging excessively high prices. Parapragh b proceeds in an entirely different direction. All the persons engaged in an Australian industry might combine for the purpose of keeping up prices - that would benefit, and not injure, the industry - and they would not be interfered with in the least degree. It seems to me that paragraph b is unnecessary, especially in this part of the measure, and personally I should like to strike it out and leave paragraph a to operate as intended to prevent any trusts from operating to the detriment of the public. The whole nature of paragraph b is fiscal more than anti-trust. I do not consider it is necessary, or desirable, in a clause which deals with combinations detrimental to the public. I would again direct attention to the difficulty of determining what is injurious to an Australian industry. A decision might readily be arrived at upon that point as regards goods coming from outside, and the clause was evidently intended to apply to such cases. The Attorney-General, however, told us that it would also operate with regard to competition within Australia. The clause was evidently drawn with the intention of applying to competition coming from beyond Australia, and notwithstanding the statement of the AttorneyGeneral, no proper provision has been made for dealing with combinations using unfair competition in Australian industries. Take, for instance, the coal industry, which is common more or less to all the States except, perhaps, South Australia.
– We have one mine, but we do not work it.
– South Australia is the only State that does not produce coal. When we speak about injuring an Australian industry, do we mean the industry as it affects the whole Commonwealth? It would not affect the whole coal industry of Australia if the mines in one State, or in one part of the State, were closed up, and the output of other mines were increased to make up for the loss. When an industry is spoken of, is reference made to the industry of the Commonwealth, or the industry of a State? If State interests had to be considered, the questions that would arise would be of an entirely different character. It might be complained that the Newcastle coal mine-owners interfered with the Victorian coal-mines, and that they were in juring or attempting to destroy them. No such charge .could, however, be levied if the industry of Australia as a whole were looked at. Then, again, a question might arise within a State between one group of mines and another. Could any such matter be dealt with under the Bill? For instance, in New South Wales the Newcastle mine-owners might be charged with attempting to injure or destroy the coal-mines of Lithgow. It seems to me that there is1 nothing in paragraph b that would restrict the operations of Australian trusts, whether detrimental or non-detrimental to the public. There is certainly provision in sub-clause a which would interfere with them. On the other hand, they would be encouraged by sub-clause b. because any competition that would injure them by reducing their profits would be done away with - at any rate, it might be declared to be illegitimate. What I have stated tends to show the difficulty of understanding the provisions of the Bill, and of arriving at some conception of their possible effects. Now, another point that has been alluded to concerns the jury that will have to try the questions arising under the clause. I am quite aware of the constitutional difficulties that would arise in a case that might lead to imprisonment, but I am satisfied that a jury is one of the least satisfactory tribunals to which cases arising under the Bill could be submitted. As in other branches of jurisprudence, the Judges have at the outset: to establish standards upon which to base the administration of the new law. This is not a work of days or weeks or months, but of years, and it is only after many decisions have been given, and many arguments have been engaged in that the standards of justice are clearly established. It is now proposed to refer many important matters - not merely questions of fact - to the decision of the jury. The jury will, in many cases, be prejudiced, perhaps, by personal considerations or interests, and also by their local views. Take, for instance, a jury sitting in Melbourne to inquire into a complaint that the Victorian coal-mines were being injured bv unfair competition on the part of the Newcastle coal-owners. The members of the tribunal would certainly - not intentionally, but unwittingly - lean towards the Victorian industry. The. State aspect would have a certain effect upon the jury. For example, it would be to the interests of South Australia to obtain coal as cheaply as possible, whereas, it would be the object of New South Wales, or any other coal-exporting State, to obtain as high a price as possible. The jury would be bound to be affected in their view by the State aspect of the matter. The Minister has not explained what would be the result, in the event of the jury in one State giving a certain decision, and the jury in another State arriving at a directly opposite conclusion in regard to similar matters.
– The result would be the same as in the case where one jury finds a criminal guilty, whilst another juryfinds him not guilty.
– That shows that the Minister has not grasped the case.
– I mean the case would be exactly the same as that in which a man who is first tried and acquitted by one jury is again brought up and found guilty bv another jury
– The two cases are wholly different. The jury appointed under the Bil] will have to give decisions which will bear upon the administration of the law for the whole Commonwealth, and not merely for a State.
– The only way in which the difficulty could be overcome would be bv appointing a travelling jury.
– I am not in favour of the appointment of a jury at all.
– How would the honorable member meet the difficulty without altering the criminal law ?
– I have heard of a suggestion which may partially meet the case. I shall, however, leave it to the honorable member who made the suggestion to mention it if he thinks fit.
– I can assure the honorable member that I am not very much in love with the proposal to remit these cases to a jury for decision, but I do not see how we can overcome the difficulty.
– So far as I have been able to think over it, I believe that the plan suggested to me by the honorable member for Bland would overcome the worst phase of the difficulty. The suggestion is not mine, ‘and therefore I prefer that the honorable member who is responsible for it should bring it before the Committee.
– There are no proprietary rights in it. I have no objection to the honorable member mentioning it.
– I have not thought the matter out, but at the first blush it seems that the suggestion of the honorable member would be of some assistance. If, after further consideration, he entertains the same opinion, I hope that he will bring it forward. I do see very considerable danger in remitting the decision of these questions to a jury. If the determination could, to some extent, be referred to a Justice of the High Court, we should occupy a much safer position, and much less contradictory decisions would be given.
– I think so, too.
– After the Minister has proposed his amendment, I shall move for the excision of paragraph b of this clause. If that be not carried, I shall submit another amendment at a later stage, but I will move the first in such a way’ that it will not prevent other amendments being moved in the clause if mine is not carried.
– Concerning the point to which the honorable member for North Sydney- has adverted’, I may say that I was chatting with him last evening about the possibility - which he pointed out - of a number of cases coming before juries in different States and being decided - in some measure at least- under the influence of State prejudices that might exist. It does appear to me that there is something in his contention, and that it is highly undesirable that we should have one decision given in regard to a particular combination in one State, and a different decision given in another State. In any case, the possibility of hauling these combinations before a number of tribunals in the different States is an altogether undesirable one. What we should aim at is to obtain one decision from a competent authority as to whether a particular action by a trust is or is not within the law. The idea should be to secure a clear, effective, and final decision upon a particular set of facts. The system of allowing juries to determine these questions would encou-rage the hearing of a variety of cases, any one of which might succeed It is highlydesirable that we should get some form of tribunal which will lay down a rule in respect to this particular matter. It must be apparent, of course, that whilst we retain the penalty of imprisonment, it will be impossible to rely on other than a juryto determine the guilt or otherwise of the parties. But it seems to me that that difficulty might be overcome - I do not know whether the Attorney-General was present when I commenced my remarks-
– The honorable member for North Sydney has been putting before the Committee the possibility in some instances of juries deciding cases in accordance with State prejudices, and of conflicting decisions being arrived at in the different States with respect of the same set of facts. I admit that that possibility is a highly undesirable one.
– It involves thefundamental principle underlying the system of trial by jury.
– No. The difficulty in this case is altogether different from that which arises under ordinary criminal law. One jury pronounces in respect of a particular set of facts concerning the individual, and the case is then finally disposed of. But, under this clause, it seems possible for attempts to be made to bring a combination to book in different States at different times. The choice could be made of the State in which it would have to answer to a certain complaint. That is to say, in the first place, it would lie with the parties bringing the complaint, and in the second with the Attorney-General, to determine which State should be the battleground with any particular combination. There is nothing in this clause to insure that it must necessarily be the State in which the combination has its head office.
– The administration would be affected by the decision, too.
– Yes. The suggestion which I. have put forward, in a purely tentative fashion, is that the difficulty, might be overcome by abolishing the penalty of imprisonment for the first offence.
– We propose to do that in the list of amendments which we have circulated.
– I was not aware of that. If the penalty of imprisonment for the first offence be abolished, there is no objection to the Justices of the High Court deciding these cases. We could then rely upon a uniform method being applied to their consideration, and upon an answer being given by the High Court that would cover the whole of the Australian ground.
– Then the jury would merely have to decide upon the repetition of the offence.
– I would go further, and for a repetition of the original offence I would prescribe the penalty of imprisonment.
– It could not be made an indictable offence without the constitutional provision applying that it must be tried by a jury.
– But could we not remove any question of an offence being considered an indictable one upon the first occasion? Could we not make a persistence in defying the law an indictable offence? I have not thought the matter out in detail, but that seems to me to be possible. If by foregoing the penalty of imprisonment for the first offence-
– The AttorneyGeneral says that he intends to submit an amendment to that effect.
– That will meet the preliminary offence.
– Only in regard to imprisonment.
– That meets the preliminary offence, which’ constitutes the indictable offence.
– Imprisonment does not cover the whole ground.
– It is the penalty of imprisonment which renders; itnecessary for us to have these cases tried by jury.
– Our proposal is embodied in clause11b, which reads -
The penalty of imprisonment shall not be inflicted upon any person upon his first conviction for an offence under this part of the Act.
We then go on to provide that upon conviction a Judge!may grant an injunction to restrain the continuance or repetition of an offence.
– That provision would not interfere with what I previously suggested.
– We straightway substitute an injunction for the penalty of imprisonment.
Mr.WATSON. - What I amaiming at is the desirability of obtaining a decision which will be good law, and final, so far as we can insure finality throughout Australia - a decision which will be free from any local prejudices, so far as the individuals comprising the tribunal are concerned. I recognise that legitimate objection can be urged against a jury being called! upon to consider a matter in one State, which may affect them in their individual businesses in a different way from :that in which it may affect them in another State. The only way that I can see of overcoming that difficulty is by altering the penalty in such a way as to render it possible for the whole matter to be remitted to the High Court. If the AttorneyGeneral says that that cannot be done, or that he sees very grave reasons why it should not be done, I bow to his judgment. But it does seem to me desirable that we should aim at securing uniformity in the determination of matters of such grave importance as are involved in this Bill.
.- The suggestion of the honorable member for Bland to overcome the difficulty which has presented itself in connexion with this clause is one which many honorable members will feel disposed to support, as being less objectionable than the original proposal. With regard to the clause itself, I should like to point out that it is selfcontradictory in character. It aims ostensibly at the repression of monopolies, and so far as the first portion of it is concerned, an attempt is made in that direction. But in paragraph b we find that the effect, if not the intention, of the clause will be to establish monopolies instead of repressing them. Let us examine the provision as it stands. It says -
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 -
in restraint of trade or commerce to the detriment of the public.
That is aimed at preventing persons who are so engaged from combining for that purpose, and it fs made a punishable offence to combine for the purpose of restraining or doing anything that would tend to restrain trade or commerce with other countries. With that purpose I am in accord ; b.ut when we pass on to paragraph b of the clause, we find that it contains these words -
Or with the design of destroying or injuring by means of unfair competition any Australian industry the preservation of which in the opinion of the jury is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.
It will be seen that the first part of the clause is directed to outside combinations having for their object the attempt to restrain trade or commerce with other countries or between the States. But the second part makes it a penal offence for persons to combine to do exactly the opposite to that, and to facilitate free competition among industries within the States. Because any person who combined for the purpose of destroying or injuring any industry by means of what is loosely termed unfair competition would be liable to the penalty. What is unfair competition? I suppose that if it could be shown that any competition had the effect of lessening the profits of those engaged in the industry or lessening the price at which the article could ‘be sold to the consumer, it would be deemed to be unfair competition ; at any rate, competition which would prejudicially affect the industry concerned would undoubtedly be so regarded. Whilst under the first part of the clause any attempt to restrain or to interfere with trade or commerce is made a penal offence, under the second part any attempt not to do that, but to do’ something which would facilitate and extend trade and commerce and cheapen the prices of commodities is treated in a like manner. In other words, whereas the first part of the clause is really aimed at me repression of monopolies, the second part, though it might not have been so intended, would unquestionably facilitate the establishing of monopolies, and, certainly, it would make in that direction, because if any combination of persons is to be penalised for entering into or intending to enter into competition with an established industry, then the inevitable result would be to establish a monopoly so far as that industry was concerned, by penalizing and preventing competition. O’f course, I know that those who are responsible for the Bill will answer that what is meant is unfair competition. But what is unfair competition ? It ought to be clearly defined in the Bill. But we cannot drag from the Minister any positive, tangible definition of the words “ unfair competition.” Every one must recognise that any competition which reduced the price of an article, or ousted from the market the manufacturers, producers, or sellers of any article connected with an established industry in Australia, would be deemed to be unfair competition. In other words, all successful competition would be deemed to be unfair competition, and, in the circumstances, punishable as prescribed in this clause. I submit that this is topsy-turvy legislation. While the first part of the clause makes it a punishable offence for any combination to do anything to destroy or injure trade or commerce with other countries or among the States by means of restriction - to do anything in restraint of commerce or trade-
– To the detriment of the public !
– All restrictions upon trade or commerce, whether by private combination or by Tariffs, are detrimental to the public. The second part of the clause has an absolutely contrary effect, because it makes it a penal offence for persons to promote competition.
– It follows a great number of the American State laws, which make it penal to enter into combination with a wicked intent - either to increase or reduce the price of goods.
– Will the! AttorneyGeneral say that a reduction in the price of goods would be to the detriment of the public ?
– Taken by itself, it would not, but taken in conjunction with other circumstances, it might.
– I can understand that an increase in the price of commodities would be to the detriment of the public. I can also understand the need and the desirability of legislation which aims al preventing any combinations that would tend to keep up the price of goods to the detriment of the public.
– The honorable member is acquainted with the old practice of running a coach off the road. In the same way, a combination might run the Australian industrial coach off the road.
– When a State runs a railway from one part of the country to another, does it not have exactly the effect which the honorable and learned gentleman points out?
– That is a public railway.
– Whether it be a public or private railway, the effect is the same, the coach is run off the road, and nobody complains, because it is recognised to be to the public advantage.
– The State does not put up the price again to the public as the successful rival of a coach proprietor would do.
– The running of a coach off a road by a rival does not neces sarily mean an increase of the fares afterwards. During the period of rivalry, of course, the effect is to reduce the fares and freights.
– For the time being.
– Admittedly, for the time being, and probably permanently,, though perhaps not to the same degree, because, as soon as the successful competitoracquired a monopoly and started to increase the fares or freights, it would naturally excite other persons to compete, with the result that the fares and freights would’ be brought down again to the proper level.
– That is Adam Smith’sdoctrine, but it is not borne out in practice.
– I disagree entirely with the Attorney-General in that regard,’ because it is a natural law inseparable from competition. As soon as a firm has started in an industry which shows a good1 opening for the investment of capital, then we immediately find that others are willingto emulate that example, and try to establish a rival trade, and the natural result of the competition is to bring down the prices- Where there is only one person in possession the price can be kept up as high as the public will stand it, because the public have no alternative but to submit ; but assoon as a competitor appears, then, in order to secure any trade, the first man must lower his prices to the level of his competitor. That is the only means by which he can acquire a fair share of the trade. On the other hand, if his prices were kept up, hewould be run off the market, and the business would be left to his rival. In thisBill, however, we are attempting, bv artificial means, to interfere with natural laws, and the result must inevitably lead to nothing but confusion and disaster. I cannot conceive how the public could be hurt or injured by any competition amongproducers or importers, which would have the effect of lessening the cost df goods to them. Any competition which reduced the cost of goods ito them, must mean an increase in the purchasing power of their money, and I am astounded to find the Labour Party, and especially its free-trade section, supporting such monstrous proposals, inflicting untold hardship on the poorer classes. Paragraph b of this clausedeals with three conflicting; sections of the community whose interests have to be regarded. I admit at once that the producers, workers, and consumers may be perhaps alT the same people, but not in their capacities as producers, workers, and consumers. Every producer, like every worker, is a consumer. But still this paragraph deals with them in their separate capacity as producers, workers, and consumers. I can conceive of a combination - in fact, such combinations are known to be in existence - for the purpose of preserving alike the interests of the producers and workers in the way of profits and wages. The only way in which those interests could be’ preserved would be by regulating the output of an article, and keeping up prices. But the very process of doing that would have a detrimental effect so far as the consumers were concerned, because they would have to pay more for the product than otherwise they would be called upon to do. A combination of this kind therefore, while it would have a beneficial effect upon the producers and workers, would have an injurious effect upon the consumers. How then would it be possible to conserve alike the interests of the producers, the workers, and the consumers when two of them were in conflict with the third? The only result of such an attempt would be to give one section an advantage at the disadvantage of the others, or two sections an advantage at the expense of the third, or to deprive them of an existing advantage in order to equalize matters by giving an advantage to the one which in other circumstances would be at a disadvantage. Undoubtedly in its operation the clause would override any provision in regard to the Tariff, because it would throw into the hands of an irresponsible tribunal - that is, one irresponsible to the people - absolute power to prohibit imports, and restrict trade and industry also within our own borders. As the honorable member for Perth pointed out on the second reading, this provision amounts to “ protection run stark, staring mad.” The provision aims at doing something which Parliament itself has refused to do, and which Parliament would, I believe, always refuse to do, namely, to interfere with trade and commerce to the extent of absolute prohibition. Any such proposal ought to be resisted bv every honorable member, irrespective of the political party to which he may belong. It would fake out of the power of Parliament the control of matters which should come properly and solely within its jurisdiction, and give the control into the hands of a tribunal not responsible, either directly, or indirectly, to the people. For that reason, I am strongly, opposed to the latter portion of this clause. As to importations, no doubt a number of commodities come into the country under specially favorable conditions of transit. We know, for instance, that there are Australian pianos sold at a certain .price, and that there are other pianos made by firms in other countries which are better, I am informed, than the locally-made articles, and which could be landed here at a much lower cost.
– Why were those pianos not landed at a lower cost before local instruments were produced1? Pianos are cheaper .to-day than ever before.
– The ring must have been burst up.
– I was not aware that there was a ring. Nor do I believe there was one ; but what is very clear is that pianos came here cheaper, not because of local competition., but because of outside competition, which is still going on. ‘But who gets the benefit of the cheapness ? Is it not the purchaser? Why should the purchaser of a piano be debarred from getting his instrument at the cheapest possible price ?
– The honorable member apparently wants to revert to the old conditions under which importers could demand high prices for pianos.
– In the face of active competition, unduly high prices cannot be obtained; but this clause will, if carried, at once put up prices to ai monopoly level. All I assert is that we ought to have a free and open market. If locally-made pianos can be produced as good and as cheaply as instruments can be imported, by all means let the local industry go in and win. The locally-made article would, under such circumstances, be more readily purchased than the imported article.
– The honorable member would like to see Australians reduced to the sweating conditions which prevail abroad.
– Abroad ! Yes; in protectionist countries. The honorable member is talking pure clap-trap - no other word could be more fittingly applied to the utter nonsense to which he and his fellow protectionists so frequently give utterance. The honorable member for Yarra knows that the cost of producing an iceberg on the. equator would be infinitely greater than getting natural ice from the Arctic zone, but the labour and capital’ involved could be employed to much better advantage in an industry more natural to a tropical climate.
The ACTING CHAIRMAN (Mr. Mauger). - How does the honorable member connect his remarks with the proposal in regard to the word “ wilful “ ?
– I submit that” I am not bound to confine my remarks to that proposal.
The ACTING CHAIRMAN (Mr. Mauger). - Will the honorable member address the Chair, and connect his remarks with the matter under discussion?
– Certainly. I am referring to the honorable member for Yarra in the third person; and- what I understand bv “ addressing the Chair “ is not to directly address an honorable member. I know that the Acting Chairman has certain fiscal proclivities, but I hope he will forget them while he is in the Chair.
– That is a reflection on the Chair !
– If I am to be called to order when I am dealing with an economic law affected by this clause, I think I am not being treated quite as I ought to be treated ; however, let that pass. What I was saying was that it is much easier and cheaper to produce ice under natural conditions favouring its production than to produce it in equatorial regions.
– The honorable member is making a big jump from pianos to ice !
– It is only by way of illustration. If articles can be locally manufactured as well and as cheaply as they can be imported, there is no reason why local manufacturers should not proceed to work. But when local manufacturers ask us to prohibit the importation of goods, in order to give them’ a monopoly, and to enable them to increase the price to the purchaser, we have no right, in the interests of the public, to grant such a request. That is the application of my illustration. The purpose of the second part of the clause is to give a monopoly to certain people in Australia who have industries already established, by preventing others in Australia from establishing other industries likely to come into competition with them. Special mention has already been made of a certain harvester company. Under the Bill, if any combination of manufacturers of harvesters were to be brought into existence for the purpose of producing harvesters which could be sold at a cheaper price than those of the Sunshine Company, that company could take action with a view to prevent any such proceeding on the part of their intended rivals. It is not even necessary to await the establishment of a rival industry. Any persons who enter into a combination with the design of establishing another industry of the same character are liable to penalties under the Bill.
– We have just had a statement to that effect from the Minister of Trade and Customs.
– I think the honorable member must have misapprehended the Minister.
– If a combination of persons, willing to invest capital in the manufacture of harvesters, were to come into competition with the Sunshine harvester, with the intention to sell a similar article at a cheaper price, such competition must necessarily injure the business of Mr. McKay.
– This is not a Bill for the protection of any particular person’s business, but a Bill for the protection of Australian industries as a whole.
– As a whole; but the Minister of Trade and Customs just now gave us the very illustration I have mentioned. The honorable gentleman said that if the competition could be shown to be unfair - that is, that the combination was intended to cut down the price of the article - he would take action to prevent that being done.
– If the combination were for the purpose of destroying, an Australian industry.
– If it were for the purpose of injuring or destroying an industry ; and any competition must injure an industry.
– I must differ from the Attorney-General there. ‘ If I am manufacturing a certain article, and another person succeeds in cutting into my market, he injures me in my industry to the extent of his success ; for the measure of his success must be the measure of my_ failure, and to that extent my injury. I maintain that under this clause, any such competition would be comprehended, and the combination so offending could be mulcted in penalties. Will the Attorney-General deny that ?
– That is not correct, I can assure the honorable member. The view of the honorable member is, perhaps, not unnatural, but he is confusing an individual business with an Australian industry.
– The clause deals with persons who combine to do certain things with the design of destroying or injuring, by means of unfair competition, any Australian industry, the preservation of which is advantageous to the Commonwealth.
– That shows that the clause does not refer to any individual person’s particular business.
– lt cannot be said for a moment that the harvester industry is not an individual business, and yet it is equally clear that it is an Australian industry. At any rate, this point was raised a while ago, and I certainly understood the Minister of Trade and Customs to say that, in a case of the kind, certain steps would be taken under the provisions of the Bill. It would be interesting to know who is right. With all due deference to the Attorney-General’s legal knowledge, which I cannot pretend to dispute or impugn, I still think the clause is capable of the interpretation I have placed upon it, and it is an interpretation which the Minister of Trade and Customs has admitted to be correct. It is very confusing to have two Ministers piloting this Bill who give conflicting interpretations as to its provisions, scope, and purposes. I am in agreement with the general purpose of the first part of the clause, but I regard the second part as most dangerous, and in absolute contradition of the first part. The first part aims at combinations in restraint of commerce and trade with other countries, while the second part is aimed at combinations which promote competition, and thus prevent restraint. One part is diametrically opposed to the other, and I understand that the honorable member for North Sydney proposes, therefore, to omit sub-clause ib. I intend to submit a further amendment, but at present will only indicate its purport. My proposal is after the word “ of,” in sub-clause b. to omit all the words, with a view to substitute “ preventing the manufacturer or vendor of goods from freely offering his wares for sale “ ; or -
I do not wish to say more at the present’ Stage, further than to express the hope that the clause will be drastically amended. To pass the clause in its present form would simply be to empower certain irresponsible persons to seriously injure and paralyze the trade, commerce, and industry of the country.
– - I think we might agree to strike out the word “ wilful.” Without in any way desiring to curtail the power of honorable members in the consideration of the clauses, I suggest that we first make the amendments on which we are agreed, and then proceed to the consideration of others in regard to which there may be difference of opinion. I think we ought to strike out the word “ wilful,” with a view to inserting later on, in sub-clause a, the words “ with intent to restrain.”
– Did the AttorneyGeneral not propose to put the words “ with design “ before the letter “ a “ ?
– No. I wish to make it clear that the intent is important, and to repeat the word “intent” in both subclause a and sub-clause b. What I have said all along is that in my opinion- the word “ wilfully,” once used, will cover the whole provision ; but I want to make it perfectly clear. What I propose is to strike out the word “ wilfully,” where now used, and’’ to insert in paragraphs a and b the words “ with intent. ‘ ‘ Then there can be no doubt whatever that the act complained of will have to be done “ with intent.” Such an amendment will meet the views of all honorable members. The word “ with intent “ are more ir. consonance with the ordinary phraseology of the measure.
Amendment agreed to.
– - move -
That after the word “ is,” line 3, the words “ or continues to be “ be inserted.
I think that the clause as it stands would result in convicting any person who remained a member of a combination, of an act before this measure passed; but in order to make the meaning perfectly plain - in consequence of observations of honorable members who have spoken with regard to the Bill - I propose to make the clause read -
Any person who, either as principal or as agent, makes or enters into any contract, or is, or continues to be - and so on; so that if there is a combination - such, for instance, as the tobacco combine, which was formed before the passage of this measure- and the members of the combine continue to be members of it, they would be in no better and no worse position than if the combine were formed after the passing of the Bill.
– The tobacco combine being in existence prior to the passing of this Bill will probably still be in existence after the measure is passed. I do not suppose that it is intended to make this legislation retrospective.
– The word “ is “ - the present tense - would apply in regard to that industry.
– Some of the legal members have pointed out that a combine might exist before the passage of this Bill, but the act complained of would be continuing to be a member of the combine after the Bill was passed. The word “ is “ refers not to the combine, but to the person.
– I see.
Amendment agreed to.
– The honorable and learned member for Northern Melbourne has suggested that we should strike out the words “ to do any act or thing.” He pointed out that there might be a combination not to do a thing. For instance, there might be a combination not to purchase or not to sell certain things. The measure should applynot only to combinations formed for the purpose of doing things, but also to those formed for the purpose of not doing things. I move -
That the words “ to do any act or thing,” line 4, be left out.
.- This amendment raises a pretty important question, namely, the effect of the Bill upon certain retailers. Frequently such people enter into an agreement to deal only with a particular firm. That is to say, they obtain the exclusive agency for certain lines of goods, and agree in return to deal only with the makers of those goods. To do so is to enter into a contract “ in restraint of trade,” undoubtedly.
– But not “ to the detriment of the public.”
– Take the case of brewers and tied-houses. I know that the brewing trade can gallop through this particular mischief without any trouble; but there are manufacturers who make certain* goods, and who may go to a shopkeeper in? town and say : “ If you will stock only our goods, and no one else’s, you shall have theexclusive agency.” It seems to me that possibly the proposed amendment might affect arrangements of that kind.
– They would all be governed by the intent - “ intent to restrain* to’ the detriment of the public.”
– Of course, a jury_ would decide whether a particular trade agreement was “ to the detriment of thepublic.”
– If it is unlawful to have acombination to do a thing, it must be equally unlawful to have a combination torefrain from doing it. If it is good in the one case it must be good in the other.
– If we come to the conclusion that the words “ to the detriment of the public “ are the safeguard - and I am inclined to think that they afford the most logical safeguard1 - I agree that the words proposed to be omitted must goout.
– This is the old British safeguard.
Amendment agreed to.
Amendment (by Mr. Isaacs) proposed -
That the words “ in restraint of,” line 7, be left out, with a view to insert in lieu thereof thewords “ with intent to restrain.”
– I do not know how intent would be proved in this respect.
– This amendment is all in favour of the defendant.
– It may be in favour of the defendant, but,, at the same time, the clause may operate against the defendant in respect of the facility with which he may be indicted.
– We do not want to make the mere fact that an Act is “ to the detriment of the public “ criminal ; but if it is to the “ detriment of the public “ with intent, that has to be proved. There are to be two things - that the act complained of is “to the detriment of the public,” and that it is done “ with intent.’’
– Unless you canassail a man’s motive-
– Not motive, but intent.
– It comes to the same thing. If there ls intent, there must be motive behind it. Unless you can assail a man’s intent, the most destructive monopoly may sail along. But what about the act which is the result of that motive?
– To take the act itself, without the intent, would make the measure much more severe.
– The act itself may be of a destructive character, but the intent may be perfectly innocent.
– Intent is proved from the act
– A man may be acting to the detriment of the public and doing it unintentionally.
– But the act shows the intent and the motive will be inferred from the act.
– Suppose a destructive monopoly is indicted, and’ that it is indicted because it is destructive; and suppose that the defendant says, “ I did not do it; I was not aware that this kind of thing was going on.”
– He would not be guilty.
– But. the thing itself continues.
– No, because after that the man would know that the act was guilty, and therefore he would be doing it with knowledge.
– He may step out, and some one else may continue to do the act complained of- The essence of the clause seems to be the man and his intention, and not the act itself.
– In every criminal case you have to prove intent ; and quite rightly.
– Is this a criminal matter?
– It is under this Bill.
– In America, the Sherman Act makes the thing complained of criminal without intent, but I insert the word “ intent,” which is wholly in favour of the defendant.
– The Sherman Act does not seem to be having much effect in America. The trusts are sailing ahead there, with all their sails set, in spite of Sherman Acts, Wilson Acts, and all the rest of them.
– It may be the same here, but we hope not.
– At any rate, if we are to deal with this matter, if destructive monopolies exist, had we not better be sure we are not going through an ordinary barren farce in regard to them. A man may simply say, “ I did not know it was loaded ; I did not know I was doing wrong at all ; I did not know that what is complained of was a destructive monopoly ; I thought I was doing a perfectly harmless simple thing.” The thing itself would continue, because it was done unintentionally. I understand that in America it is quite a common thing to keep changing the personnel of the trusts so far as their government is concerned. For instance, the other day I saw that some offenders were sent to gaol and others were fined huge amounts, but the trusts still sail on. Fines are simply a flea-bite to them. The evil itself does not appear to be impeded in the slightest degree. I take it that what the Ministry want to do here is to control the thing in itself; and I do not know that the intentions of the individuals will have very much effect in that respect, judging from experience.
.- I desire to make this part of the Bill as complete and effective as it is possible to make it. As to the rest of the measure, I am indifferent, because I. do not think that much good will be derived from it. However, some good may be expected, from that portion which relates to combines acting in restraint of trade, and I think that there is a good deal in what the actingleader of the Opposition has said about the effect of the proposed amendment. The amendment will operate in favour of combines, and may have the effect of almost neutralizing the intention of honorable members in agreeing to the second reading of the Bill.
– I would remind the honorable and learned member that we have struck out the word “ wilfully.”
– I know that. In my opinion, the effect of the proposed amendment will be to render the Bill absolutely valueless, because, to make its provisions effective by securing convictions, something more than the acts of a combination will have to be proved; its express intention to restrain trade must also be proved. It will, however, be very easy for the combination aimed at to say, “ We do not intend to restrain trade. We merely intend to protect our own interests, and to have a common understanding amongst ourselves.” A number of motives may have led to the combination, and it may be shown to the Court that the primary motive was the protection of the business interests of the members of the combination by the prevention of cut- throat competition. The mere fact that, incidentally to the operations of the combination, trade is restrained, will not bring its members within the scope of the clause. If the amendment is agreed to, the clause will be interpreted to mean that, unless the primary motive of a combination is to restrain trade, its members cannot be brought within the scope of the measure. If its dominant motive is to protect the interests of its members, and, by regulating prices, to avoid cut-throat competition, its members will escape scot free. If the Sherman Act, which does not contain words requiring the proof of intention to restrain trade, has been ineffective and inoperative, r.ot answering the expectation of its framers, how much more will this measure be an abortion, requiring, as it does, proof of an express intention to restrain trade? Take the case of the reaper and binder agreements, or 1 the harvester agreements, about which we have heard! so much, and in regard to which I have a very strong opinion. If there were a prosecution of persons acting in combination in regard to the sale of reapers and binders, thev could say, “ We have entered into an understanding to fix the price of reapers and binders at each, and to sell neither above nor below that price; but it is not an agreement in restraint of trade. We do not intend to restrain trade. We have merely entered into an understanding among ourselves not to sell our machines at more nor less than a certain price.” If the words proposed to be inserted are inserted, the whole of these clauses will lamentably break down.
.- I understand that the object of the AttorneyGeneral, in moving the insertion of these words, is to insure that practically every member of the community shall not be sueable under the clause.
– The object is not to make criminals of men who are not criminals.
– I understand that the Attorney-General wishes to insert these words because he feels that so many persons are brought within the comprehension of this measure that some such safeguard as is proposed is necessary. In my opinion, we are now reaching a stage when it would be worth while to consider the whole structure of the Bill.
– The honorable member would be out of order in doing so now.
– Yes ; but I wish to show how this particular proposal, must necessarily bring into our minds considerations of that wider character. The AttorneyGeneral, by making the scope of this measure so wide, has brought practically every member of the community within its possible embrace, and now, in order that the public shall not be unduly harassed, he wishes to adopt safeguards which may prevent us from getting at the guilty persons whom we wish to punish. In framing legislation of this character, we should be extremely careful that the only persons affected are those at whom we are hitting.
– Whom does the honorable member wish to hit?
– Destructive monopolies. To insert words of the character proposed would make it almost impossible to strike the destructive monopolies which we wish to strike, because if “ intention “ had to be proved against them, as well as the offence itself, a conviction would never be obtained. The procedure provided for is therefore impracticable. As the honorable member for Hindmarsh has pointed out, persons arrested for drunkenness and disorderly conduct have not generally commenced the day’s expedition with the “ intention “ of becoming drunk, but they are nevertheless punished for their offence. Under the clause as it is proposed to amend it, however, it will be necessary to show, not only that action has been taken in restraint of trade, but that it was taken with the design of restraining trade. The onus of proof differs in paragraphs a and b, resting on the plaintiff under paragraph a, and on the defendant under paragraph b. If it will be difficult for the plaintiff, under a, to prove design on the part of the defendant, it will be equally difficult for the defendant, under b, to prove absence of design. It seems to me that we have made a difference between the procedure under the two paragraphs which should not have been made. The more important object in view is to prevent restraint of trade in the Commonwealth, and the less important object to prevent unfair competition. The Bill, however, is drafted with the intention of imposing insuperable barriers to unfair competition, while it allows trade to be restrained unless the intention to restrain is proved, which will be a matter of the greatest difficulty. The clearest explanation is needed before the Committee can be fairly asked to decide the question.
– - I do n°t intend to discuss the general principles of the Bill. We have passed the stage when such a discussion will be in order, while the discussion of the clause as a whole can be undertaken later on. What I propose to do now is to address myself to the question of intent. I should like to point out to the honorable and learned member for Bendigo what will be the position if we do not insert the words which we propose to insert. A number of traders, honestly desirous of carrying on their business to their own advantage, but with a due regard to the public interest, and without endeavouring to break down Australian industries, or to do anything to the detriment of the public, may go to their solicitor or counsel, and say to him, “We do not wish to do anything illegal. We wish to honestly advance our interests without prejudicing, the public welfare.” Their legal adviser may thereupon set to work to properly and thoroughly provide for the carrying of their intentions into effect ; but if it turns out that something is done in restraint of trade, and to the detriment of the public, those concerned, although actuated with the best intentions, will be obnoxious to the clause as it stands, and may be branded as criminals. I do not think that that is desired, and it therefore becomes necessary to insert the words “ with intent,” in order that persons who are free from criminal intent may not be branded as criminals.
– Then a Judge may . have to tell a man whose business has been injured that there is no remedy, because the injury was not done designedly.
– At the present moment, we are dealing with the incrimination of men; with the question of criminal consequences. The matter to which the honorable member refers will be dealt with when we come to consider subsequent clauses.
– It appears not to matter if a man has lost his business by the action of a combination.
– Incidents such as the honorable member has in mind are of every-day occurrence. Let me take a simple case to exemplify what I mean. If the honorable member were to enter a shop, and purchase something about which the vendor made some statement as to quality or make, , honest] v believing what he said to be true, an action of damages could not be brought, against him - putting out of con sideration the question of warranty - if his statements turned out to be untrue. If, however, the statements were fraudulent, an action would lie. It is a well known principle of law that, in many instances, consequences have to be endured if there was no fraud, while a remedy is given if fraud was an element in the transaction. It is perfectly consistent with that principle that in the case which the honorable member has in mind, a man shall not be able to recover damages for consequences suffered through the honest action of others, although he would be fairly entitled to compensation if , the results from which he suffered were caused by their dishonest actions.
– Then a combine is to do what it likes without fear of consequences.
– Not what it likes. If its intention is to injure the public, or to destroy an industry, it can be punished under this provision as it is proposed to amend it ; but I cannot assent to the proposition that men should be committed to gaol, or branded as criminals, although thev have honestly tried to carry on their business without detriment to the public and without destroying an Australian industry
– I am glad to hear the honorable and learned gentleman say that.
– I have said it all along. That has been my contention from the first.
– Then this will be a wretched piece of legislation.
– The Government may as well abandon the Bill.
– It will not be necessary to give direct evidence of intent. It is a well known principle of law that a man’s actions may indicate his intent much more clearly than his words have done. When men are indicted for conspiracy, direct evidence of intent cannot be procured’ in ninety-nine cases out of one hundred.
– But men who have nowrongful intent mav be convicted.
– A man is presumed tointend that which naturally follows as a consequence of his acts. A man is presumed to intend to bring about the natural’ consequences of his acts. Therefore, it is not necessary, even in cases of conspiracy, to prove directly - of course that would be impossible - what intent a , man has ; but convictions are constantly being obtained.
When a man’s acts are such that the jury would naturally say that no man in his sound and sober senses would have committed them unless he had a certain intent, the jury are at liberty to deduce that he had such an intent It is not; necessary to produce written or verbal evidence as to intent, because very often the bargains of conspirators are made in secret. But when their acts and the relations of their acts to the things which they are proved to have done are made plain, the jury are asked to come to a conclusion as to the intention behind the act. We are taking a distinct step which I think will prove extremely effective and beneficial. Experience may show that we shall require to strengthen the Ia.w ; but I would much rather see the law strengthened hereafter than pass an enactment at this stage that might involve innocent persons in irreparable consequences. I think it is fair to say that if we can prove that men have banded together and have, in fact, made a contract that proves to be in restraint of trade to the detriment of the public, we ought to take into account very few circumstances, indeed, beyond those upon which a jury could honestly and fairly arrive at a conclusion one way or the other as to the intent.
– Are the words “ with intent” in the Sherman Act?
– No; I have already explained that they are not.
– Has the Sherman Act proved ineffective ?
– So far as I know, there has never been a case of actual prosecution under the Sherman Act ; but there has been an application for an injunction. The American Courts have stated that if a contract is in restraint of- trade, whether or not the contract is beneficial or detrimental to the public, it must be repressed.
– Does the AttorneyGeneral think that there is no restraint of trade in America?
– No doubt there is. Of course, it is for the Committee to say whether they will agree to the insertion of the words “‘with intent.” But I think that it would be unjust to hold persons liable in cases where it can be shown that they have no improper intent. Unless the words are inserted, it might, in effect, be said to a man. “ You may do everything in FOUl power to arrive at an agreement that you think will be beneficial to the public and advantageous to yourself. You mav ask your legal advisers to construct an agreement that will not have the effect of destroying or injuring Australian industry, and vet you may be involved in criminal consequences.” Although there is no reference to intent in the Sherman Act, it is necessary, in cases of conspiracy, to prove intent. You cannot have conspiracy without intent.
– But it is not only those who enter into conspiracies who commit offences.
– The law would apply to any person who might enter into a. contract to effect the purposes against the accomplishment of which the Bill is directed. We are embarking upon new and strong legislation - not a bit too strong to enable us to combat the evils against which, it is aimed - but I regret to say that I cannot take the same view as the honorable and learned member for Bendigo and the honorable member for Hindmarsh. Experience may show us that the evils are so great, and the resistance is so strong, that more drastic legislation is needed, but at present I am not in a position to advise the Committee that we should make the mere fact of restriction of trade to the detriment of the public a criminal offence.
-Sil. - I am glad that the discussion has made some impression upo.ni the AttorneyGeneral. I think that the words “ with intent “ should be inserted, because before a person is rendered liable to imprisonment it should be proved against him that he had a criminal intent. It must be remembered that under the clause as amended any person who continues to be a member of a trust after the passing of the Act will be liable to a penalty of .£500, or twelve months’ imprisonment. Although the Sherman Act does not include any reference to intent, it is really more drastic than the measure now before us. because under this Bill it must be proved to the satisfaction of the Attorney-General! that a mar has a criminal intent before he will file a Bill. Section 1 of the Sherman Act reads -
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanour, and, on conviction thereof, shall be punished by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the Court.
That is the provision upon which the clause now under discussion is based. But the second part of the Bill is more comprehensive than the Sherman Act, and I think that we should guard as far as possible against the punishment of innocent persons, who may become involved in operations which are injurious to an industry and detrimental to the public. I agree with the honorable member for Hindmarsh that it would be very hard to indict a person under the clause, and I am glad that that is ‘the case, because unless it can be shown that a trust is injuring trade and commerce to the detriment of the public, I take it that it is legitimate trading combination. No person should be liable to be branded as a criminal merely because he is engaging in honest trade operations. I am very pleased that the deputy leader of the Opposition has accepted the amendment proposed by the Attorney-General, and that the latter has been impressed by this discussion.
– The honorable member apparently misunderstands the position. The word “ wilfully “ has been struck out, although we considered it would have the same effect as the words “with intent.” It was pointed out by the honorable and learned member for Corinella and the honorable and learned member for Northern Melbourne that the word “ wilfully “ would not enable us to accomplish our purpose, and I have substituted other words which I think will prove effective.
– We are legislating with regard to matters which will have to be determined by a Judge and jury, and if I were acting as a juryman I should say that a person was not guilty unless he had aimed at bringing about injurious results. The clause, as amended, will be an instruction to jurymen, and will certainly be an improvement upon the original form. It will make the provision less stringent, and at the same time sufficientto comprehensive.
– - Under all the circumstances, I shall, of course, be glad to see the amendment made. Owing to the very wide scope of the measure, the Attorney-General is apparently becoming afraid of the severity of the penal clauses. As I have pointed out, this provision might allow trusts whose operations are attended with very destructive consequences to escape by pleading that they knew nothing about the results that would follow from their actions.’ Moreover. one man might be punished and the trust might still1 go on. Al] the modifications we are now making are the more necessary because the Bill applies to all the ordinary competitive enterprises of our industrial life. We should be very careful how we punish persons whose only crime is that they are successful in their enterprises. The AttorneyGeneral is creating a new set of offences, and it is no wonder that he should aim at making the penalties as light as possible, and also take upon himself the burden of proof of design. I should prefer to eliminate from the Bill all these references to ordinary competition. The term “ restraint of trade to the detriment of the public “ is wide enough to include all the trust operations’ about which we need concern ourselves. The Bill has an unmistakable fiscal intent and purpose, and therefore we should tone down the penalties.
– I am unwilling to enact legislation that will create new offences unless the offender is to be held responsible for his act. The honorable and learned member for Northern Melbourne stated that he believed there were men who honestly wanted to obey the law, and he suggested that agreements might be submitted to the Minister. I am not in favour of that suggestion. If we adopted the view of the Attorney-General, a man who honestly wanted to do what was fair might Be indicted for conspiracy and convicted.
– The AttorneyGeneral says that a man mav be brought before the Court, and indicted for intent in accordance with his actions, although personally he may have had1 no intent to injure anybody. Similarly the honorable and learned member for Northern Melbourne believes that there are business men who would enter into an agreement with no such intent.
– Suppose that the word “intent”, were eliminated, what chance would the honest man have?
– In the absence of that1 word we should simply create an offence under this Bill, and- I contend that if an offence is committed the transgressor should be punished.
– The whole question is, “ What is the offence to consist of “ ?
– The offence consists of proof that two individuals or a corporation are injuring an industry.
– But the honorable member would not make men criminals unless they meant to injure the public?
– Exactly, and they would not be made offenders under this clause unless it were proved that they were hurting the public.
– But if they hurt the public without meaning to do so, would the honorable member put them in gaol ?
– I should like to make the penalty for any first offence a very light one, but I should have no hesitation in prescribing imprisonment if a person offended a second time. We shall never prevent crime in certain circles until we put the offenders in gaol. I believe with the late Mr. Seddon that that is the only cure for them. We ha.ve no hesitation in committing men to gaol for offences which are paltry as compared with that of ruining a man in his industry.
– Can the honorable member cite an instance in which we put men in gaol who had no intent to do wrong?
– I have already given an instance. If a man unwittingly gets the worse for liquor, and is arrested, he is committed to gaol should he be unable to pav the fine imposed.
– I suppose that he intends to drink?
– A man may meet a few friends, and out of pure sociability he may take more liquor than is good for him, but if that plea were raised in the police court it would be scouted. Under the Government proposal a man in charge of a business, a number of workers, and their wives and families may be injured with impunity, simply because it cannot be proved that the authors of that injury inflicted it designedly. I do hope that the Committee will prevent the insertion of these words in the clause.
– I feel very strongly upon this matter. I referred to it during my speech upon the second reading of the Bill, and I do think it is owing to a misunderstanding that any honorable member can seriously propose to. commit a man to gaol where the issue is so vague and so diffi- cult to determine as is the meaning of the phrase “to the detriment of the public.’-‘
– Let us impose a fine for the first offence, and prescribe gaol for the second.
– I understand the honorable member’s view, but I do not wish to see any man convicted - even fined - unless he is guilty of a malicious intent.
– The honorable and learned member means unless it can be proved that he has malicious intent. That is the difficulty.
– The honorable member should recollect, however, that it is also difficult to prove that any action is not to the detriment of the public. It is far more difficult for a person to understand beforehand what will and1 what will not appear to a jury to be to the detriment of the public than it is for one to prove that he has been acting with a view to damaging the public.
– He would understand after his first conviction.
– But I feel that we ought not to put the brand of conviction upon any man unless he has done something of which he should1 be ashamed. I would remind the honorable member - looking at the Crimes Act of Victoria, which is almost a copy of the Crimes Act of England - that half the offences therein specified have intent as an element. For instance, in the falsification of accounts by a clerk or servant-
– I never knew a clerk or servant to escape conviction upon the ground that he had no intent to falsify his accounts.
– Let us suppose that a clerk or servant did falsify or mutilate his master’s accounts or books, so long as it was not done with intent to defraud he would not be guilty of any offence. .
– How often does that happen ?
– We all recognise that clerks do alter books.
– They must correct errors.
– Exactly. But if a clerk altered his employer’s books for the purpose of correcting an error the honorable member would not put him in gaol ? Why, then, should we commit a man to gaol who simply makes an agreement in pursuance of his business, and without knowing that it will injure the public until he is told by a jury that it has injured or is injuring them ? Where we are dealing with juries we have very grave dangers to face. I will give an instance in point. Let us assume that there are a number of manufacturers of a certain article - say blankets or paints - who see that another individual is making an article of a very bad quality and underselling them. Let us suppose that they find that their market is being injured, and that the public is being. injured by the inferior production, and that, as a result, they enter into a combination by which they deprive the individual in question of his supplies. They naturally think that a combination of that sort is not to the detriment of the public, but that it is for the good of the public. But, of course, the individual chiefly concerned would have his friends, who, doubtless, would raise the cry, “ Oh, he is a poor man. Why should he be tyrannized over by these wealthy men ?” I confess that it would be most difficult for a jury to decide whether such a combination was to the detriment of the public or not. Some people say it is good for the public that we should have shoddy-
– Would such things go to a jury for decision?
Mn. HIGGINS.- There are a host of ways of showing intent, and one is by attempting to conceal what has been done.
– An article might be a very cheap one, and still not be detrimental to the public.
– That is quite true. I find, by reference to the Crimes Act of Victoria, that it is no offence for a person to effect an armed entrance into a house at night unless it is with intent to rob or to do wrong. Similarly section 124 of that statute enacts that if he enters a dwelling house at night with intent to commit a felony, he shall be liable to certain penalties. I am quite sure that the honorable member for Hindmarsh has a severe edge upon transactions of a certain character
– I have the support in this matter of the honorable and learned member for Bendigo, who knows the law.
– I was not present when the honorable and learned member for Bendigo addressed the Committee, but I am greatly surprised to find that he can advocate making the act of any person a crime, irrespective of intent, if it turn out to be to the injury of the public.
– He has the advantage of being familiar with the evidence which was given before the Tariff Commission.
– I do not know what the Tariff Commission has to do with the matter. Some people appear to have Tariff upon the brain.
– The honorable and learned member for Bendigo knows what the combines are doing, and we do not.
– I venture to say that he does not know what the combines are doing more than does any member of this Committee who has access to the books in the Parliamentary Library, and who has held any conversation with those who have had to do with combines. One could not obtain stronger evidence of the evils accruing from combines than that which is given by .Mr. Lloyd, where he summarizes the investigations Of the commissions which have inquired into the matter in the United States. Of course, I have consistently taken up the position that these provisions will be nugatory, and I am endeavouring to prevent honest men ‘from being injured under them, rather than dishonest men from being attacked. I feel that the clauses will be insufficient, and that just as similar provisions have been evaded in the United States, so these will be evaded here. Mav I add that all this criticism is confined to paragraph a, as I understand there is no objection to the retention of the words “with intent “ in paragraph b.
– Objection has been taken to the whole clause.
– We are dealing with each amendment separately.
-. - Exactly. At the same time, we ought to be consistent in paragraphs a and b. I shall not vote in favour of making a man a criminal who has no intention to hurt his fellows.
Mr. KELLY (Wentworth) [6.15).- -it . seems to me that we have reached a stage in the consideration of this Bill - which is ostensibly intended to repress destructive monopolies - when our whole anxiety is to prevent honest men who may be brought within its scope from being victimized. Is it that our object is not to prevent trusts from victimizing the public as a whole, but- to prevent honest men from being penalized, now that they have been brought within the comprehension of the measure? The honorable and learned member for Northern Melbourne asks - “ If innocent men hurt the public without meaning it, would you put them in gaol?” while the Attorney- General asks - “ If the word intent ‘ were struck out, what chance would an honest man have under the Bill ?” Why have we brought honest men within its comprehension?
– But we have not.
– The complaint of the Attorney-General is that so many honest men are brought within the scope of the measure that we have now to be specially careful to see that they shall not be victimized.
– The trouble is that we are going through the farce of making a law which its own supporters say is useless.
– Exactly. After hearing argument, I am prepared to allow the words to be inserted for the protection of honest men, wrongly brought within the operation of the Bill, but I submit that this is a regular farce on which we are engaged.
– The honorable member wishes to assist in what he calls a farce.
– If the Bill be passed as is now proposed - and apparently it is hopeless to expect that it will be passed in any other form - it is a farce, and it ought to be treated as a farce when it is again dealt with as a whole. I agree with the Attorney-General that we have got to a position now when we have to consider what might happen to innocent men who have been brought under the measure through its scope being too wide.But I hope that the Committee will see that we are engaged in the farce of passing a Bill which will not be operative in the direction which we hope for - the repression of destructive monopolies.
– I am sorry that the honorable and learned member for Northern Melbourne has left thechamber, as I wished to put a case to him ; but perhaps, in his absence, the AttorneyGeneral will supply the answer. . At the present time boots are being manufactured with paper as a substitute for leather, andno doubt the manufacturers contend that they have no intention of injuring the public. The fact is that the use of the boots endangers the lives . of the users. In wet weather they act as a sponge, and the result in hundreds, if not in thousands, of cases has been that the wearer has contracted pneumonia, which often has caused death. Under this Bill would the manufacturer of such boots be indictable as an offender with the intent of injuring the public?
– No. That would come under the Commerce Act if it were InterState trade.
– It would not come under the Commerce Act, because that Act cannot deal with goods manufactured in a State.
– If boots of that kind were sold between the States, the manufacturers could be brought within the operation of the Commerce Act.
– The Government refused to accept an amendment of mine which would have dealt with goods when passing from State to State, and consequently goods which are manufactured and consumed in a State cannot be dealt with under the Commerce Act. The honorable and learned member for Parkes has interjected that in the case I put to the AttorneyGeneral the intent would be obvious. I am glad to have that assurance, because if such an employer could be brought within the scope of this Bill it would do something, although I still maintain that it would be almost impossible to prove intent. Really, the more I have looked into this Bill since I spoke at the secondreading stage, the more convinced have I become that it contains a great deal of sham legislation. The intent of the Government may be good, but we have to look at the effect of this legislation, and that, to my mind, will be very far from what it ought to be. I am still of opinion that we ought not to insert the words “ with intent.”
– The condition of my throat prevents me from taking an active part in the debate, but I should like to show the attitude of my mind toward the amendment by congratulating the Attorney-General upon introducing a highly desirable safeguard into an otherwise dangerous clause.
.- I am very glad that the Attorney-General has moved this amendment. I do not consider for one moment that this legislation is a farce. I believe there is a possibility that the clause under discussion will effect a very remarkable amount ofgood. Any one who has read the story of the operations of trusts in the United’ States, and compares some of the provisions in Part
Amendment agreed to.
– Some honorable members have indicated their opposition to paragraph b. I wish to move the insertion of the word “ intent “ in lieu of the word “ design “ ; but I desire honorable members to understand that if they wish to reject that amendment, the forms of the House require that we should not adopt any words.
– There is a’ prior amendment.
– For reasons which I stated on a previous occasion, I desire paragraph b to be omitted. In order to test the opinion of the Committee on that point, and not to interfere with any honorable member who may desire to move an amendment at a later stage, I move -
That the word “ or,” line 8, be left out.
If that amendment be carried, then paragraph b will have to be omitted.
– This will be taken as a test in a similar provision in the next clause ?
– Yes. Paragraph b of clause 4 has no relation to trusts or combines, at any rate, it does not restrict them within Australia as- paragraph a does?. It is simply a provision - and really, to some extent, it is in contradiction of paragraph a - that there shall not be action which would destroy or injure by means of unfair competition any Australian industry. That means that there shall be no unfair competition which would reduce the price of goods in that industry. Consequently, while the design of paragraph a is to prevent persons from imposing heavy prices, and taxing the community by their combinations, a combination of firms within Australia may constitute a gigantic trust, and the provision of paragraph b is simply that there shall be no unfair competition with that industry so organized.
Sitting suspended from 6.30 to 7.30 p.m.
– I do not know whether the Attorney-General was present when, earlier in the day, I made some remarks on this clause, but I then tried to show that* if the paragraph under discussion was meant to deal with competition between Australian industries, there should be a clearer definition of “ Australian industry.” A clear distinction is drawn as to competition from abroad, . which, if it unfairly interferes with Australian industries, would, of course, come under this part of sub-clause 1. But as regards competition between Australian industries, or in Australian industries - that is, the case of one part of an industry competing with another, which the Minister of Trade and Customs stated might be brought under the sub-clause - there is no indication as to what an “Australian industry “ is. The industry might be an industry of all Australia taken as a whole, or it might be an industry confined to a State or to a city.
– Could the honorable member call either of the last two mentioned an Australian industry ?
– I should like to point out to the Prime Minister what I previously said’ when he was not present.
– I heard only part.
– I then instanced a case in which competition might occur in the same industry carried on in two States, and pointed out that that competition, while it might injure the industry in one of the States, might not injure the industry as a whole in Australia. The coal industry of New South Wales has already been referred to, and it might compete and injure the coal industry of Victoria. But even if the New South Wales coal industry did destroy the Victorian industry, the Australian industry as a whole would not be injured or destroyed Yet the Minister of Trade and Customs informed us that in such a case action might- be taken under this subclause.
– I think there must be some misapprehension.
– When the Minister of Trade and Customs spoke he instanced the case of harvesters.
– Well, of course, in a sense that might be so.
– If it is only an industry of Australia as a whole which is to be injured by Australian competition
– By any competition.
– I am talking of the applicability of the subclause to Australian industries, which the Minister said would operate in such a case. If it is only an industry of Australia as a whole that is to be injured by Australian competition, it seems to me that the sub-clause fails to deal with the matter at all. However, I shall not enlarge on that objection, seeing that I have had another opportunity of drawing attention to it. A further objection isi that the subclause seems to be more fiscal than trust restraining. Although paragraph b is introduced in a ‘ clause dealing with trusts, there is nothing to prevent the formation of Australian trusts.
– It does not deal wholly with trusts, but with any person.
– But there is nothing to prohibit the formation of Australian trusts, which mav injure or destroy a trade in Australia which is not strictly an Australian trade.
– Only by monopolizing it.
– Either by monopolizing, injuring, or destroying.
– The trade would still be there.
– I want to point out that there is no reciprocity.
– An industry would not be destroyed except with a view to monopoly.
– An ‘industry might be destroyed apart from any such intention. If the Attorney-General will allow me, I will explain. While the operation of trusts, or persons, unfairly competing with Australian industries, is supposed to be dealt with and restricted or prevented, if an Australian industry chooses to form a combination, or if any person in that industry chooses to so conduct his business as to unfairly compete with any other business in Australia, which would not be termed an Australian industry - such as the distribution of goods from abroad - there is perfect liberty to do so.
– Clause 5 will prevent that as much as possible.
– That clause deals only with companies.
– But clause 7 deals with monopolies.
– It is not a question of monopolizing.
– It must be one or the other.
– If an Australian industry can injure or destroy another Australian industry without monopolizing the latter, so it can injure or destroy such an industry as I have indicated.
– Can the honorable member give an instance of an Australian industry injuring any other Australian industry without a view of monopolizing?
– Monopolizing is not punishable unless it is to the detriment of the public.
– How would Mr. Bent’s wire netting monopoly fare under this clause?
– That is a new Australian industry to be conducted by tHe Government, and carried on, not by Government employes, but by Government prisoners. What I wish to emphasize is that paragraph b is more fiscal than anti-trust. Provision is made to insure that an Australian industry shall not, by unfair competition, injure or destroy another Australian industry ; but if an industry consists of importing and distributing goods from abroad, there is no reciprocity - there is no provision by which an Australian industry can be prevented from adopting unfair means to destroy that industry, which may not be Australian, but British.
– That is exactly what Mr. Bent’s industry will do.
– That is an illustration of how an Australian industry - if we may so call it - such as is proposed to be established, may be used to destroy, by what some people might consider unfair means1, a British industry - because industry extends not merely to the manufacturing, but to the trading in and distributing of goods. Such action by an Australian industry is allowed full play under the paragraph ; and, therefore, I say that it is more fiscal than antitrust. For these reasons I am of opinion that the clause wants thoroughly re-drafting in order to define “Australian industry.” The clause ought to show how far an industry must extend before it can be called Australian - whether unfair competition between the same industry in two States would be interfering with an Australian industry, or whether the interference, injury, or destruction has to affect the industry throughout all Australia. Them, if the clause is not to be fiscal, there should be some reciprocity, so that other industries, which are valuable to Australia and to the Empire - industries in which our fellow British citizens are engaged - shall not be destroyed by making it penal on the part of a British industry in these markets, while Australian industries are perfectly free to operate in the same objectionable manner, in regard to the British interest, without any restraint. As; paragraph b stands, I am bound to oppose it, and in order to test whether it should or should not be omitted. I have moved the omission of the word “ or “ in line 8, so that there may be no interference with any subsequent amendment that it mav be desired to submit.
Mr. ROBINSON (Wannon) [7.42J.- This particular paragraph is extremely difficult to construe. The coal industry, which has been instanced bv the honorable member for North Sydnev, is carried on largely in New South Wales, to some extent in Victoria, and to a smaller extent in Western Australia. It is admitted on all hands that the coal industry in Newcastle is conducted in more favorable circumstances than it is in either Victoria or
Western Australia. If the question involved in this paragraph is left to a jury, it will mean that juries taken from any of the States I have mentioned may give totally, different verdicts. A Newcastle jury, which had to construe the effect of the operations of the coal vend, would naturally take a most favorable view of those operations, which, of course, tend to increase the trade of the port. But if the members of that coal vend were tried by a jury from Korumburra, or from the Collie, in Western Australia, they_ would have but a slight chance to escape being found guilty of a breach of the law. The AttorneyGeneral said that a combination could foe dealt with under clauses 7 or 8 for attempting to monopolize the trade of the Commonwealth. But, according to the Bill, an attempt to monopolize, or an actual monopolization’ - if I may use the term - of trade and commerce is not punishable unless it is with the design of controlling the industry to the detriment of the public. It seems to me that the clauses referred to by the Attorney-General do not carry the matter any further. In the case of the coal vend - I only take this as a concrete case-r-its competition is deemed to> be unfair because it is a commercial, trust. I do not think there is any question that the vend is a commercial trust; but if it were not so, competition bv a large colliery owner in Newcastle might be punishable under clause 6, because such competition would probably result in lower remuneration for labour. It would have that effect in Jumbunna and Outtrim if the competition were successful. It would also result in disorganizing Australian industry in Victoria, though it would probably have an opposite effect in Newcastle. It seems to me that this portion of the Bill1 - which I presume is meant to deal with monopolies within our boundaries - attacks a portion of an industry because that portion may have facilities for capturing the bulk of the trade to the detriment of other portions of the industry. I think we ought to have a definition of “ Australian industry “ ; or else we should allow the defendant an opportunity to take his case before a full bench of the High Court, for the purpose of obtaining a legal definition on this point.
– There is that power of appeal under the law.
– That meets my objection on this point. Otherwise we are irc this position : that a man who does injure a certain portion of an Australian industry may be attacked under this clause for having done something which is inimical to the interests of the public generally. The last few words of paragraph b -
Having due regard to the interests of producers, workers, and consumers - must also ‘be considered. It is held by a number of people that the maintenance of collieries in Jumbunna, and of a colliery in Western Australia, has a distinct effect in the interests of producers, workers, and consumers, by keeping down the price of coal. I shall not discuss whether or not it has that effect, but a number of people believe that it has; and a jury might be taken from persons with that impression in their minds from the start. That being so, it appears to me that a coal mine-owner in Australia might have his business and his safety imperilled under this paragraph. It appears to me that the paragraph involves 1 fiscal matter, and does not deal with the repression of a local monopoly. I should like to hear from the Attorney-General a more ample justification of it than we have had. I have an open mind on the question, and if he can show me that paragraph b is a necessary part of this anti-trust legislation, I shall support it, just as I supported turn with regard to paragraph a. I think he made his position quite clear as to that ; and if he can make his position equally clear to my mind with regard to paragraph b, I shall support that also.. But at present it does not seem to me to have any relevancy to dealing with trusts that are treated, or which grow up in Australia under Australian conditions; because the only way in which the mischief the paragraph, aims at attacking can grow up is by one portion of an Australian industry getting the better of another portion. If, of course, there is a well-established Australian industry which is attacked by another Australian industry - that is to say, by a rival product - it is quite possible that the competition of some later development of science, or of some later natural development, may injure the. older industry, just as, for example, the discovery of oil wells in Australia would give a staggering blow to the coal mines which we have in various parts of the country. I do not suppose that any jury would find that such a case came under the provisions of this Bill.
– If such a thing were to happen, the new industry would be one the preservation of which would be beneficial to the (Commonwealth.
– That may be so; but a jury might find that it was not beneficial. If the trial took place in a part of the country where the old industry was looked upon as the better industry - and that might easily happen - the jury might find that the old industry was advantageous to the Commonwealth, and that its competition with the new industry ought to be preserved. It is a matter as to which I am looking for information from the Attorney-General, and I hope that he will throw some light upon it, as he usually does.
– I think that there is a little misapprehension about the paragraph under discussion, which has for its pivotal consideration, if I may so put it, the preservation of industries in Australia. No distinction is made between State and State. The idea is that if industries are established in any part of Australia we are not to be made dependent upon other countries in respect of such industries, by some one, whether in our midst or from outside, coming here, and, with the intent to destroy or injure our industries, entering into some combination. It is not intended either to set State against State or individual against individual. If New South Wales coal mines can out-distance Victorian coal mines, this provision has nothing to do with them. But if Japanese coal mines send their product here under such conditions of unfair competition as - if that were possible - to close our Australian coal mines, such a case would come under the provision. The point of the paragraph is this : We will assume that there is some Australian industry which ought to be preserved in the interests of the Commonwealth - say the coal industry of Australia, as contradistinguished from the coal industry outside Australia. The expression “Australian industry “ is self-interpretative. You have an industry which is Australian, as distinguished from one which is nonAustralian or foreign. The point is that we want to preserve the Australian industry. We do not desire, so far as this Bill is concerned, to preserve an industry in any particular part of Australia. There is no favoritism to be shown to any part of Australia ; and if one part of Australia can beat another by any means whatever-
– Fair or unfair?
– Whether the competition is fair or unfair has nothing to do with clause 4. If, however, one Australian industry, or one branch of an Australian industry, or one individual in an Australian industry, by some unfair means, with a view to monopolize Inter-State trade, or if a corporation by unfair means, endeavours to run its competitors out of the market, and to monopolize thetrade, that case comesunder the latter portion of the Bill. But so far as this clause is concerned, what we aim at is the preservation of Australian industry without regard to the individuals engaged in that industry, and without regard to the State in which the industry is carried on. It is Australia on the one side and the rest of the world on the other.
– Would the AttorneyGeneral define what constitutes an ‘ ‘ Australian industry “ ? What makes an industry Australian?
– An industry which is carried on in Australia is an Australian industry.
– Suppose the industry is carried on in one Stateonly?
– If it is carried on in one State it is Australian, just as much as if it were carried on in all the States.
– Suppose two industries existing, one for the distribution of English goods and one for the distribution of Australian goods, but both carried on in Australia, which of those is an “ Australianindustry “ ?
– Bothof them. I say that any industry carried on in Australia, by persons here who are subject to the laws of Australia, is an Australian industry. If the American harvester people were to come and set up their factory here, and employ Australians, working at Australian rates of wages - as, of course, would have to be the case -pro tanto they would be carrying on an Australian industry.
– And they would have the right to do so, notwithstanding that they were entering into competition with the other harvester people?
– So far as this particular clause is concerned - yes. I do not care what it is - any industry carried on in Australia is an Australian industry.
– The Bill does not say so.
– Surely the term “Australian industry “ carries its own meaning on its face. ‘ But let me put another consideration, because I do not desire to miss any particular phase of this question. Suppose, . for example, that the American harvester trust were to set up a factory here, and were to say - using the simile which I employed earlier in the day in answer to the honorable member for Lang - “ We cannot do what we want from the outside, because your Tariff prevents us, but we will settle down in Australia, and run the Australian coach off the road by undercutting, and when we have the whole of the trade in our own hands, we will do what we like “ ; if they did that they would be open to the objection thatthey were attempting to injure an Australian industry.
– Suppose they sold their goods at reasonable prices, would that be undercutting ?
– No; of course not.
– Notwithstanding that they were selling their machines at a less price than that at which other harvesters were sold ?
– We meet thatsortof thing every day in every shop.
– That is fair trading, not unfair competition. I ami assuming unfair competition, for the purposeof showing how the Bill will operate. I am not discussing what facts would constitute unfair competition, but am endeavouring to answer the query put to me as to what is the meaning of “ Australian industry.”
– Suppose the Australian manufacturers tried to run out the Americans after they had arrived and established their factory here?
– If they did that for the purpose of monopolizing the trade, they would come under the operation of the later clauses of this Bill.
– But they would not be monopolizing the trade, because there would still be competition amongst the local manufacturers.
– If they were a corporation they would be hit by the Bill.
– They might be individuals.
– Then I should say the only question would be whether, as far as this clause is concerned, they were acting with the intent to destroy or injure an Australian industry.
– Would the AttorneyGeneral regard an industry estab- lished here by American manufacturers as an “Australian industry”?
– I think that in such a case as that I have just mentioned they would be open to paragraph a, for endeavouring to “ restrain trade and commerce to the detriment of the public.”
– Does paragraph a cover such a case ?
– lt covers such a case as the honorable member has .put, but it would not cover all cases. Paragraph a will not cover certain cases, such as where there is a reduction of price in order to run coaches off the road, which cannot Le said to be directly in restraint of trade, because, although the ultimate object is to restrain trade, the intermediate means employed cannot bear that interpretation.
– That would not operate in the case of the local people trying to run off a new company.
– It seems to me that both cases come under the operation of clause 4, by reason of the provisions of either paragraph a or paragraph b. Some of my honorable friends have said that the clause is self-contradictory, but I respectfully submit that that is a mistake. An object may be attained directly or indirectly. Trade may be restrained directly, and the public injured thereby, or intermediate means which are not a restraint of trade, such as the” reduction of prices, or undercutting, to get rid of competitors, may be adopted, with the ultimate object of restraining trade. If an American firm came here, and said. “ We will sell our goods at such prices that Australian dealers in similar goods will ultimately be driven out of the market,” the means adopted would not in themselves be a restraint of trade, although their ultimate object would be the restraint of trade j but we should have to deal with the employment of those intermediate means, and not wait until the injury intended had been affected, because, when capital is once displaced, it is very hard to induce people to re-invest on the same lines. Several of the States of the American Union have passed Acts to regulate trusts and combines. In 1800 the State of Michigan passed an Act - No. 255 - relating to trusts, monopolies, and combinations, in which it is provided that a trust is to include any of several purposes, of which one is to limit or reduce the production, or increase or reduce the price, of merchandize or any commodity.
A provision of that kind might as well be termed contradictory as the provision now under discussion. The ways of persons who have command of a great amount of capital may be devious. They may say, “ If we could increase prices we should at once attain our object, but, as we cannot immediately do so, we must reduce them, in order to run competitors out of the market,” and, having done that, they would act in restraint of trade, the reduction of prices being only an initiatory step towards the attainment of that object.
– There is no mention of the object here; the clause deals only with the effect.
– The object is included, and, in my view, there is no selfcontradiction. The means adopted may be, and probably would be, to use the enormous power of aggregated capital - greater than any Australian firm could command5 - to put on to the market goods constituting a comparatively small proportion of the total output, at prices at which it would be ruinous to sell, because the foreign combination could stand the strain much longer than any Australian manufacturer or dealer could stand it. Then, when the Australian coaches had been run off the road, they would say, “ Now we can command the traffic as we please, and will charge high prices.”
– Clause 7 deals with such action.
– It does not deal with exactly the case which we are now considering. At the then present time, it would be difficult to prove that an endeavour was being made to establish’ a monopoly, though there might be very strong grounds for believing that to be the intention.
– It is necessary to prove that an attempt is being made to destroy an Australian industry.
– Yes. It is a question of policy. I think I have shown that there is a distinct meaning in the clause, and that its object is to preserve Australian industries as a whole; not to preserve the industry of one part of Australia as against that of another, or to preserve the industry of one individual as against that of another, but to prevent all Australian industries deserving to be upheld from being obliterated or injured bv the operations of foreign competitors. The question is, are we in favour of preserving Australian industries as such, - not industries which ought not to be preserved, but genuine, valuable industries, which are of use to Australians, and will help to develop our country ?
– The honorable and learned gentleman has said that the distribution of imported goods would be an Australian industry.
– In Australia that would be an Australian industry.
– Is such an industry truly Australian ?
– It would depend a good deal on its nature. I do not think that any one could lay down a hard-and-fast rule. But, if by means of such distribution, an attempt is made to kill an industry manufacturing Australian ‘goods, and that manufacture is one which, in the interests of workers and consumers alike, ought to be preserved, we do not intend to allow the distribution of foreign good’s to have that effect.
– The distribution of foreign goods must affect the local manufacturer of similar goods in some way or another.
– Part III. deals with that.
– No. Part III. provides for the prohibition of the landing of goods with the object of destroying Australian industries; this part deals with goods which are here.
– But the honorable and learned gentleman has said that the distribution of goods which are here is an Australian industry.
– It is -pro tanto, but persons here, whether natural born Australians or Australians by adoption, are not to be allowed to .destroy Australian industries.
– Is the honorable and learned member speaking of goods which have been imported?
– Yes. The whole of Part II. providing for the repression of monopolies, relates to goods which are already here. We say that any person having goods here is not to enter into a contract or become a member of a combination, for the express purpose of destroying or injuring any Australian industry which, in the interests of the whole Commonwealth, ought to be preserved. Bv Australian industry, we mean an. industry that is Australian in contradistinction from foreign.
– We cannot get at the exact difference.
– I think that we can, and that it is a question of fact in each case.
The Committee has now to determine a question of principle - whether we are going to allow Australia to develop its industries without danger of their strangulation by the greater power of capital abroad. Tariffscan apply only to the ordinary transactions of trade, and are based upon the supposition that men will not voluntarily lose money in carrying on their business operations, that they will sell under ordinaryconditions of business and trade; but we know perfectly well that persons desirous of capturing a market are sometimes prepared to make a temporary sacrifice, and will not be deterred by a Tariff from temporarily selling their goods at a loss, inorder that they may eventually command the market. It is for extraordinary operations of trade of that nature that the Bill is necessary. We think that its provisions are essential to the preservation of our industries, over and above any of the ordinary operations of trade which would be covered by the Tariff. Those who think that Australian industries, properly established, and of use and benefit to us all, ought to be allowed to continue on .their career of development, will have no hesitation in voting for the clause, while those who consider that, however well Australian industries may be established, and however useful they may be, they ought not to be regarded if, under any circumstances, and whether temporarily or permanently, goodscan be brought here more cheaply from abroad, will vote against it. It is a question whether we are determined to preserve well-established Australian industries, which are admittedly of use and benefit to us, or are ready to see them destroyed or injured.
– Will the honorable and learned gentleman give us a case in: point ?
– I have given several, and to repeat them will not add force towhat I have said. I think we seed havelittle hesitation about coming to a decision. Our minds are fairly well made up as tothe side upon which we desire to stand. If we adapt the test which the honorablemember for North Sydney has given to us, and divide upon the question whether the word “or” shall or shall not be in the clause, we shall obtain an expression of the opinion of the Committee, either that Australian industries as such, which are worthy of being preserved, should be preserved, or whether they are to be regarded as possessing no more commercial interest to us than do the industries of Japan.
– I do not think that the AttorneyGeneral was justified in assuming that those who do not accept the position as he stated it are opposed to the establishment of Australian industries. The whole object of the Opposition! is to make the Bill a just measure, so that Australian industries may flourish, and every manufacturer may have a fair chance in this market, being stimulated by competition from abroad to improve his methods. The Minister has stated the question as if we were being, asked to say whether we shall or shall not have Australian industries. I do not think it is fair to put it to the Committee in that way.
– In connexion with the preservation of Australian industries a certain question has arisen in my mind. The Premier of Victoria announced last week that he intended to carry on the wire netting industry in Victoria by means of prison labour. That industry is at present carried on in New South Wales by means of union labour under union conditions, and the highest rates of wages are paid to the employes. The Premier of Victoria says that he intends to introduce machinery similar to that now employed in New South Wales, and that, if he cannot procure machinery from abroad, he will have it made in the State. I desire to know whether the proposed employment of prison labour would be regarded as constituting unfair competition with an Australian industry? Can a State step in and interfere with an industry in which certain persons have embarked their fortunes ?
– That is Socialism.
– It is nothing of the kind. If that is the idea of honorable members opposite, I can understand how it is that they are all at sea. We want to give equal opportunities to all men. I contend that such an enterprise as that upon which the Premier of Victoria is about to embark would involve unfair competition with Australian industry. It would certainly not be in accord with the principle of Socialism to crush out an industry by the employment of prison labour. Perhaps that is the kind of Socialism in which the honorable member for Hunter believes’. I should like to know whether competition such as I refer to would come under this clause or under clause 6?
– We cannot interfere with’ a State, but only with private individuals.
– Then the Bill is not worth the paper on which it is printed, and I shall vote against it.
.- The remarks of the Attorney-General in connexion with this clause have confirmed me in the opinion that we are merely wasting our time in discussing this measure.
– The honorable member for Kooyong is cheering that statement,, and he will cheer the honorable member all through.
– I shall always express my opinions, whether my statements are received with cheers or with jeers. The whole measure is based on an assumption that I think the evidence before the country does not justify. We are asked to assume that certain Australian industries can be wiped out by competition resulting from a reduction of prices to a point that will not permit of the manufacturers obtaining a reasonable profit. I have no hesitationin saying that the Australian manufacturer would be able to wipe out his antagonist, the importer, if he brought his prices down to a figure that would still enable him to obtain a reasonable profit. If any large organization such as the International Harvester Company, of which we have heard so much, and which some Ministers seem to have on their brains, came to Australia, laid down up-to-date machinery, and carried on their work with the thoroughness that has characterized them here and elsewhere, and still adhered to sound business methods, they could bring down the price of harvesters to at least £,20 below the present quotations, and still make a handsome profit. I want to know whether such action would be regarded as unfair?
– Then what object is really being aimed at?
– We want to get the work done here, and keep it here.
– That is very frank, anyhow.
– It is very straight.
– As I have already stated, I am prepared, when the opportunity occurs, to prove that if the Australian manufacturers of harvesters were satisfied with a reasonable profit they could manufacture every machine likely to be required in the Commonwealth. I think that I may fairly enter into details, because the Chairman of the Tariff Commission has addressed this Chamber in terms which warrant me in breaking silence on the subject. In connexion with the harvester industry it has been shown conclusively that the trouble of the Australian manufacturer is not that he cannot compete and obtain a reasonable profit, but ‘that he wants an abnormal profit. And he has been able to persuade the Government that special legislation should be enacted for his benefit, in order to secure for him excessively high returns.
– Is this the report of the Commission ?
– I am giving, honorable members the benefit of a very small portion of the evidence elicited by the Commission. I think that what I have stated tends to show the necessity for having the whole of the evidence placed at the disposal . of honorable members before they are asked to deal with matters that have been exhaustively investigated by the Commission.
– I think that the enlightenment which honorable members might receive from the evidence taken by the Tariff Commission would prove very beneficial in the consideration of this Bill.
– Have we not already had placed before us the evidence relating to the manufacture of harvesters?
– Not all of it. It is very difficult to arrive at any reasonable conclusion with regard to the provisions of this measure, when we have two separate readings by Ministers of the paragraph immediately under consideration. The Minister of Trade and Customs distinctly stated that unfair competition between one section of Australian industry and another section - that is to say, competition which might arise between the harvester manufacturers in one State and those engaged in the same industry in another State - would come within the scope of this paragraph, and would be dealt with. The Attorney-General has just told us that such a case could not be dealt with - that the Bill would have no effect in regard to a sectional portion of an industry in a particular State, but would deal only with the industry of the whole of the Commonwealth.
– We could not actually deal with an industry in any particular State.
– The Minister of Trade and Customs gave us an illustration, which showed that, according to his reading of the measure of which he is in charge, if one section of manufacturers of harvesters in Australia combined to injure or destroy by unfair means another section, the clause would operate to restrain them.
– Only if their action constituted a first step in the direction of injuring or destroying the whole of the industry.
– There might be competition between two groups of manufacturers in different States. But the Attorney-General now tells us that the clause applies only to combinations which seek, by unfair means, to destroy or injure, not a particular section of an industry, but the whole of the industry throughout the Commonwealth.
– That is, if those entering into the combination seek to destroy themselves.
– That is what it amounts to. The readings given by the two Ministers are very contradictory. The Attorney-General was. rather confusing in his explanation. He said, for example, that the distribution of British or other imported goods in Australia would constitute an Australian industry, and as such would be protected from unfair competition under the clause. In that case, there would be no discrimination between those engaged in the distribution of the product of our own fellow citizens in England and those interested in articles produced by citizens of the Empire within Australia. It could not then be objected that, those engaged in Australian industries would be allowed to combine and unfairly destroy an industry which took the shape of distributing British goods, whilst the distributors of such goods would not be permitted to combine to unfairly compete against Australian producers.
– The honorable member will see that no penalty is imposed upon one industry for attacking another, but that it is proposed to prevent any person from unfairly attacking an Australian industry.
– Then the question arises : “ What is an Australian industry “ ? The Attorney-General then proceeded to argue that we must defend Australian industries from attacks from persons outside, even if they came within our territory and tried- to compete unfairly. What follows from these two statements? According to the Attorney-General, the distribution -of British woollens in Australia would be an Australian industry, and under the clause competition, even unfair competition, which would affect only a portion of Australian industry, could not be interfered with. The distribution of British tweeds would form only a portion of the industry connected with the -distribution of woollen goods amongst us, and, according to the Attorney-General’s reading of the clause, no measures could be taken to protect the distributors of British tweed against the distributors of Australian tweed, or vice versa.
– I guarded- myself by saying that a person who came here to destroy or injure Australian industry as a whole could not do it under cover of the mere distribution of British goods.
– But the Attorney-General has told us that the distribution of British goods here would become an Australian industry, and he has stated, further, that the clause does not deal with unfair competition which results in injury to one particular section of an Australian industry. The distribution of Australian tweeds would constitute only a section of that Australian industry, because the distribution of British tweeds - according to the AttorneyGeneral - would also form a portion of that industry.
– By the unfair competition of the distributors of British tweeds, could not an attack be made upon Australianmanufactured tweeds?
– The AttorneyGeneral has already said that we must deal with the industry in globo.
– The distribution of Australian tweeds, and the distribuTion of British tweeds, would not comprise the same industry.
– They would. The work is often carried on by the same people.
– I do not think that thev belong to the same industry. The mere sale of imported goods is not the same as the manufacture of tweeds here.
– It is not the manufacture, but the distribution, of tweeds with which I am dealing, and that is a separate matter. The distribution of tweeds, as the Attorney-General admitted, would be an Australian industry, irrespective of whether the goods distributed were of Australian or British origin. That being so, and the Attorney-General having stated that the provision would not apply when one section of an industry was operating against another section, it is clear that it would not be applicable to the case I have put.
– Except the distribution of British tweeds were undertaken for the underhand purpose of destroying Australian industry.
– The AttorneyGeneral, it seems to me, is upon the horns of a dilemma in either case. Let us look at the position from the other standpoint, namely, that under this provision we can penalize the distributor df British tweeds if he engages in unfair competition against his fellow distributor of Australian tweeds.
– Against the manufacturer of Australian tweeds.
– I am talking of the distributor.
– If the distributor of British tweeds comes here for the purpose of crushing the manufacturer of Australian tweeds, he can be prevented from doing so.
– I am speaking of the distribution - not of the manufacture - of tweeds.
– That is just the mistake which the honorable member is making.
– The AttorneyGeneral is upon the horns of a dilemma.
– I am verv comfortable.
– I am sure that the Attorney-General is so accustomed to being impaled upon the horns of a dilemma that he has become case-hardened.
– The honorable member’s horns are very harmless.
– I am speaking of horns upon which the AttorneyGeneral impales himself by reason of his own speeches. If the honorable and learned gentleman takes up the other attitude, and ‘if he states that the distributor of British tweeds can be penalized for unfair competition, then it is grossly unjust that the distributor of Australian tweeds engaged in similar competition with the object of injuring or destroying the other branch of the industry - the distribution of British tweeds - should go scot free. That is the position. When
I put that. position previously, the AttorneyGeneral in reply said, in effect, “ Oh, no, that would be an Australian industry, and as a person conducting an Australian industry he would be protected under this provision.” Now when I push home the argument, he reverts to the position which I maintained at first that the British distributor would be liable to unfair competition on the part of those distributing the Australian article, and that under this provision he would have no redress, although if he himself indulged in what a jury deemed to be unfair competition he would be liable not merely to heavy fines, but to twelve months’ imprisonment. I say that one or two things is the case. Either the clause is absolutely useless for the purpose for which the Attorney-General said it was devised, or if it is to operate in the way that he has stated, it must be grossly unfair to one of two sections of traders, each of which theAttorney-General affirms would be conducting an Australian industry. His remarks have onlyconvinced me of the necessity of excising paragraph b.
.- If one could read into this Bill the explanations which the Attorney-General makes from time to time, and if his explanations would satisfy those who will have to apply the law hereafter, we might very well agree to pass some of the clauses about which many honorable members are so much concerned. Personally, I claim to be as desirous as the Attorney-General, or the honorable member for Melbourne Ports who interjected, of seeing legitimate Australian industries receive all the assistance that is possible. I should like to see Australian work reserved - as far as it can be legitimately reserved - to the Australian people. But here for the first time in our consideration of this Bill the interests of the consumer are introduced. The clause recognises “ producers, workers, and consumers.” Surely the words “Australianindustry” in the provision under consideration - if we are to interpret it in the way that it has been explained by the Attorney-General - ought to read “Australian manufacturer.” The whole of his remarksrelated to the interests of the manufacturer, and had no regard whatever to those of the consumer. I admit that we shall be doing an injustice to our Australian manufacturers if we do not insert in this Bill some provision to prevent unfair foreign competition if it can be defined.
– Ionly referred to a manufacturer, because I was dealing with a particular instance which was put to me, but I should apply the same argument just as strongly to the grower of our wheat if an attempt were made to drive him off the land by the distribution of foreign grain.
– I regard this provision as a very unworkable one, and I decline to subscribe to the statement that those who vote against it will be placing themselves in opposition to a just consideration of the claims of Australian industries. I am just as desirous as is the Attorney -General of seeing legitimate assistance given to Australian manufacturers. But the honorable member for North Sydney has shown that the application of this provision will place those who have to interpret it in a difficulty from which I can see no escape. As to unfair competition, surely there ought to be a clearer definition of that term embodied in the measure. Already we find merchants asking, “ Where in this Bill are we to find a clear explanation of what constitutes unfair competition, and who is to raise the question of what is unfair competition.” It is true that the matter has to be submitted to a jury, which has to decide whether a particular industry is advantageous to the Commonwealth, having due regard to the interests of ‘the producers, the workers, and the consumers. Surely the consumers cannot object because they are benefited by a competition which personally I may regard as unfair. How is the jury to determine whether or not such competition is disadvantageous1 to the Commonwealth? I claim that this provision should be so modified as to bring it into line with the objections raisedby the honorable member for North Sydney. It ought to be made clear and more definite. If the differentiation is made more clear I shall feel that I am not justified in opposing a provision which is distinct in declaring that anything which, by intention and purpose, is designed to injure or destroy Australian manufactures is unfair competition. I am not prepared to allow myself to be placed in a false position merely on the dictum of the AttorneyGeneral, in voting against a provision which, as it stands, I regard as unworkable. We should have a clearer understanding of what will constitute unfair competition. Mr. Isaacs. - That comes in clause 6.
– If that be the case, what necessity is there to bring it in here?
– It is not defined here, but in clause 6.
– What is “ unfair competition “ is set out in such a way that we are justified in asking the Attorney-General to reconsider the situation. I decline to accept his contention that any honorable member who may vote against this provision is presumably opposed to helping and encouraging in every possible way Australian work for Australian workmen.
– That will be the effect of the amendment, because, as the honorable member must know, it is proposed to strike out all reference to Australian industries.
– I do not know anything of the kind. I decline to allow that the differentiation or line of division is justifiable. I think that the paragraph might have been made clear and emphatic, and acceptable to both sides of the Chamber.
– Let us do it, but do not strike it out entirely, as proposed.
– I hope that the honorable and learned gentleman will show the same reasonableness which he displayed in connexion with paragraph a. I feel considerable difficulty in supporting the amendment, but I regard this part of the clause as bad as it stands. I decline to admit for a moment that I am not as sincere in my desire to see Australian industries prosper as is the Attorney-General.
– The honorable member appeals to me to be reasonable, but is he aware that the proposalis to strike out paragraph b entirely, and not to amend it. Is that reasonable?
– The AttorneyGeneral might have also told the honorable member that it is all provided for in another part of the Bill.
– It strikes me that the honorable member for Kooyong does not know where he is.
– I do not think that the honorable member does.
– I amsure that the honorable member does not. He wants to preserve Australian industries, and he also wants to strike out paragraph b of -this clause in order to kill them. He is a regular Yes-No gentleman.
– The honorable member interjects with that senselessness which characterizes him.
– I do not represent the “ Geebung Club.”
– I do not know what the honorable member represents.
– If the honorable member will come and fight me at the elections he will see.
– When I entered the chamber I was not aware that the proposal was to excise the whole of paragraph b, but the position was explained to me afterwards. Unless in another part of the Bill there is provided a means of preventing unfair competition of this character, I cannot see how I could support the excision of the paragraph; but if the AttorneyGeneral will not listen to the representations which have been made to him for its modification-
– No representations have been made yet. The only suggestion is to strike out the paragraph.
– No; an honorable member made a suggestion before the dinner adjournment, and stated the words of his proposed amendment.
– I understand that representations have been made to the AttorneyGeneral for certain modifications, and it is in view of that circumstance that I say he is attempting to place me in a false position. He will not accept a modification.
– What modification?
– It is to give a proper definition of what constitutes “ an Australian industry,” and also “ unfair competition.”
– That is not a modification.
– I ask the honorable and learned gentleman to tell me now what will constitute “ unfair competition “ ?
– The honorable member will find “ unfair competition “ defined in clause 6, so far as it can be defined.
– Will the honorable and learned gentleman explain to me in a proper way, and upon the lines which I have indicated, what is regarded as “ unfair competition “-
– When we reach clause 6 will be the time to deal with that point.
– This is the clause on which to deal with that matter.
– If honorable members wish to kill the Bill, of course it is.
– On several occasions, I have stated deliberated that I have no such design.
– I am not saying that the honorable member wishes to do that, but certainly that would be the effect of the amendment if carried.
– I ask the honorable and learned gentleman, before a vote is taken, to more definitely and clearly explain what he means by unfair competition. ?
.- My doubts as to the meaning of the clause have not been removed by the explanation of the Attorney-General. It seems to me that he was not quite sure as to what was meant by paragraph b. He said that one object was to prevent an Australian industry from receiving, unfair competition at the hands of a foreign industry. But he must have been well aware that -that subject is dealt with in Part III. of the Bill, particularly in clauses 13, 14. and 15, which show that foreign goods can be prevented from coming here to compete with local goods. If the honorable and learned gentleman’s object is to prevent the dumping of foreign goods, either the provision in paragraph b is redundant, or else it must have some other end in view. And that, so far as I can perceive, is to prevent the free distribution of imported or Australian goods between the States. If it is aimed at Inter-State free-trade, of course it is unconstitutional. The more the AttorneyGeneral explained the clause, the worse it seemed to me. He dealt with the case of Japanese coal being brought here to destroy the local coal industry, when Part III. of the Bill is framed for the express purpose of preventing such competition. Although no one knows that fact better than does the honorable and learned gentleman, yet we have this bogy of Japanese coal trotted out for the purpose of covering his retreat when pushed into a corner. Similarly, by interjection during the last speech, he endeavoured to raise the fiscal question on this particular clause, knowing full well that Part ITI. of the Bill deals with the whole fiscal question. Itis idle for the honorable and learned member to shake his head, because he knows that my statement is correct. He is misleading the Committee by suggesting that he is endeavouring to protect Australian industry from unfair competition. If the paragraph is to be given any meaning bv a Court, it must be held to mean that one part of an Australian industry can compete unfairly with another part of that industry, and if that interpretation is not going to be attached to the provision, we can only assume that it is intended to interfere with Inter-State free-trade. But of course no Commonwealth Court would hold that that was constitutional. Either it has the meaning which I mention, or it has no meaning, and, therefore, should not be retained in this clause. We asked the Attorney-General for an explanation of the paragraph, but his speech, extending oyer twenty minutes, related to matters which are dealt with in another portion of the Bill. Will he look at clauses 13 and 14 of Part III., and say that Japanese coal, if imported to unfairly compete with Australian coal, could not be dealt with? Not even” a gentleman with the AttorneyGeneral’s skill in dialectics could say that such a case is not met, or intended to be met, by those clauses. What is the meaning of the provision we are discussing? The meaning must be that it is proposed to discriminate between branches of an industry - between the same industry carried on in different portions of Australia - cr else to interfere with Inter-State free-trade. If the wish be to interfere with the importation of foreign goods, that can be done under Part III., but if the intention is to interfere with Inter-State free-trade, as guaranteed by the Constitution, this Legislature is placed in a ridiculous position. There may be some means of amending the clause, so as to put some sense into it. The honorable member for Lang has a proposal to make, but I am not prepared to commit myself to it without consideration. The clause, as it stands, is absolutely meaningless, unless the object of it be that one portion of an Australian industry shall be protected’ against another portion ; that is to say, that a portion of the coal industry, for instance, will have the right to be protected from another portion of the coal industry. Such legislation, I say, is forbidden by the Constitution.
.- After listening to the honorable member for Kooyong, I am more than ever satisfied that he does not know “ where he are.” The honorable member desires to be informed as to what unfair competition is ; and, no doubt, he will find out on the day of election. If the honorable member thinks I am senseless, I invite htm to contest the Maranoa electorate against the brainless candidate ; and I guarantee to send him back to Kooyong with his tail jammed. If ever an honorable member made an electioneering speech in this Chamber, the honorable member for Kooyong has done so. We have been told about the honorable member for East Sydney making “ YesNo “ speeches ; the speech of the honorable member for Kooyong on this Bill was certainly a “Yes-No” speech. The position is that, now the election is approaching, the honorable member for Kooyong, and those who think with him, are trying to get as far as they can from the free-trade section, and yet they do not want to leave it altogether. The honorable member for Kooyong says that he does not desire to kill Australian industries ; and’ yet his intention is to vote for the amendment of the honorable member for North Sydney. But the honorable member for Kooyong does not know what that amendment is. The honorable member heard outside the Chamber, or just before dinner, that the honorable member for North Sydney would propose that the whole of paragraph b be struck out ; whereas, the amendment that that honorable member has submitted is simply that the word “ or “ be omitted. I am satisfied that the honorable member for Kooyong, when he votes, will not know what, he is voting for ; and yet he has the cheek to get up here and tell us he represents the commercial interests of Australia. I represent the commercial interests - the bone and sinew - of Maranoa, and I might go on to say that I am president cf the “ Geebung Club,” or of the “Go-bung” Chamber of Commerce. Every honorable member in the House represents the commercial community just as much as does the honorable member for Kooyong. The honorable member does not represent the commercial community in my electorate. I am the member for Maranoa, and not the honorable member for Kooyong. We. have had a real “ field day “ on this particular provision, and the sooner we get to a vote the better.
.- I think I am perfectly entitled to say a word. The honorable member for Maranoa has used language of a personal character, which I am perfectly sure he will afterwards regret. I am not aware of any reason why the honorable member should constantly interrupt when I speak, and I do not think it right or proper that he should do so in the manner he does. My position is absolutely consistent with the position I have always taken up in this House. The honorable member’s talk about the “ Geebung Club,” and nonsense of that kind, only emphasizes the statement I made in regard to him. The honorable member is doing himself an injustice, because every honorable member respects and likes him; it is only when he rises and talks nonsense of the character we have just heard thai he makes himself appear absurd. I arrogate to myself no special position, but speak simply as the representative of the electors who sent me here. But I am here to do what I think is in the interests of the whole community, - as well as in the interests of the’ individual electors who returned me. Whatever position I take up, I do so fearlessly, and regardless of whether the electors favorably or unfavorably view my action. Every honorable member who has sat in the two Parliaments will agree that I always fearlessly state what I believe to foe correct - that I do so without equivocation, or regard to the electors or any body else. I can assure you, Mr. Chairman, that I should feel very much what the honorable member for Maranoa has said if I did not know that ten -minutes later he will express his regret. I know that the honorable member does not mean what he says, and will presently desire to withdraw his statement. But it is not proper that statements of the kind should appear in the press or in Hansard, because they degrade the position of this House, and it is a great pity they are allowed.
– I have listened to the explanations of the Attorney-General regarding this clause, but it appears to me that he only makes confusion worse confounded. I do not hesitate to say that I do not think the Attorney-General is “playing the game” quite fairly.
– I am not playing any “game” - the honorable member may be doing so.
– The AttorneyGeneral may put the position which way he Likes ; it does not matter. The illustrations of the honorable gentleman are catchpenny illustrations, and nothing more. For instance’, last night, when on the same matter, he spoke of the possibility of several large farmers oppressing and injuring the small farmers of Australia, whereas tonight he tells us there can be no such thing, since the farmers are all engaged in the same Australian industry.
– I did not say anything of the kind.
– Then, again, to-night he goes to Japan for an illustration, and imagines the possibility of Japanese coal being poured into Australia to the destruction of the coal industry. When the Attorney-General is so hard up for illustrations - when he has to rake creation through to find a possible case, of injury, it is time we stopped legislating for improbable and impossible cases. If that is the whole aim of the Bill, it becomes increasingly clear that we are not ripe for such drastic, far-reaching proposals. I suspect, however, that the real intention behind the clause is that which has been blurted out so bluntly by the honorable member for Melbourne Ports, who says that the reason for this proposal is a desire to get work here, and keep it here.
– That is good cause. Does the honorable member object?
-Why does not the honorable member’s leader have the candour to put that reason in the forefront of the Bill? Why has not the AttorneyGeneral the candour and frankness to say that this is a fiscal proposal and nothing more?
– It is not a fiscal proposal ; it is a provision,plus a fiscal proposal.
– My reading of the clause is that it is for the purpose of dealing with Inter-State monopolies. According to the. Attorney-General to-night, there can, under this clause, be no InterState monopoly of a deleterious kind to be visited by penalties. For instance, supposing Mr. McKay should enter into a combination within Australia, and chase all the other Australian implement makers out of business, he would not be injuring an Australian industry. He really would be only grouping, combining, and consolidating the industry, according to the reading which the Attorney-General has given to-night. My impression is that this clause is intended to relate to sections of the same industry operating antagonistically in the various States. I understood from the beginning that it was the intention of the Government to provide for monopolies within Australia - that is, for Australian monopolies as well as for outside and foreign monopolies.
– So far as we could, and as the Constitution allows.
– It appears to me that the complication has arisen from copying the American trust legislation, which aims at the restriction of trusts within America. It would have beenvery much better if we had had two Bills, if that is the object of the Government - a Bill! to repress trusts in Australia, and a Bill torepress foreign trusts and their depredations in Australia. The two objects should,. I think, be kept distinct.
– The House gave a very distinct expression of opinion last session that we should make one Bill cover as much ground as we could.
– The trouble is that, when we come to inquire as to whether the Bill does cover Australian ground,, the illustrations which the Attorney-General gives us seem to show the impossibility of such trusts occurring. Supposing some harvester maker, or some enterprising coal proprietor, in Australia, should, by reason of having increased capital at his back - and that is a point the Attorney-General made much of in his explanation to-night,, when he expressed a wish to prevent possible depredations by large aggregations of capital - make up his mind to clear away all competition and create an Australian monopoly, then, according to the AttorneyGeneral, there would still be an Australian trade, and the capitalist could not be touched under this clause.
– He is struck at by other clauses in the same Bill. He would not be allowed to go on as he liked,
– What clauses?
– Clauses 7 and 8 - under clause 7 any individual person who does Inter-State trade, and under clause 8 a corporation which does trade, whether in a State or beyond a State.
– There is the same difficulty there.
– Every possible case of monopoly or unfair dealing that it is possible for us to deal with under the Constitution we have dealt with. We have shown no favour to any one.
– I quite believe the honorable gentleman, but his illustrations are unfortunate.
– I did . not select the illustrations. I simply dealt with those put before me.
– The interpretation of the Attorney-General is, as I understand it, that this clause has not to dowith competing sections of Australian industry, but has regard to Australian industry as a whole.
– That is paragraph b of clause 4.
– Yes. Really, then, it seems to me to be a clause which will encourage rather than repress Austialian monopolies.
– That is a fair way of dealing with it, but it is different from the other position put by the honorable member.
– If Australian industry as a whole has to be regarded, and not a section, no matter how remotely located, of some particular industry, it seems to me to be a splendid proposal for building up and protecting Australian monopolies, rather than for preventing them.
– That would be very good criticism if we had not the clauses 7 and 8 in the Bill.
– I do not see that clauses 7 and 8 operate to the contrary.
– They strike against any monopolies.
– They deal with monopolies of Inter-State trade or external trade, and with monopolies by corporations. Well, a man or a corporation might eliminate all competition from many of the industries of Australia, and so long as he sold his goods at a fair price, and paid fair wages for labour- as every trust in the world to-day is doing - he could not, according to the terms of the Bill, be touched at all, simply because there would be no “ detriment of the public. “ That phrase, “ detriment of the public,” appears to me to be as wide as it is possible to make it. In Australia it is hardly possible to conceive of a huge aggregation of wealth for the purpose of controlling industries operating in any such way as it is possible for trusts to operate in the United States. There, as is well known, the means of transportation are the mainstay of the monopolies. It is easily possible to conceive, as we are told is the case in connexion with shipping on the coast, of a trade being controlled and grouped without there being any detriment to the public, whilst at the same time there is something in the nature of a; monopoly to the extent of controlling the whole of the operations of the trade within the Commonwealth. According to the Attorney-General, such a monopoly could not be touched under the clauses of this Bill, for the simple reason that an Australian in dustry must be regarded as a whole. Will the Attorney- General say that this Bill would take no account of a possible sectional disorganization that went on while this process of incorporation was going forward ? Suppose the coal industry in New South Wales should, by reason; of some extraordinary facilities., greater capital and power of combination, combine to knock out the coal industry of Victoria. Would not this Bill apply to a case like that? According to the interpretation of the AttorneyGeneral, it would not, because the industry is to be regarded as one.
– This paragraph would not.
– Would the Bill at all ? I do not see that it would.
– Wait until we come to clauses 7 and 8. Then we shall see.
– The explana tion of the Attorney -General, so far as I can see, only shows the necessity of eliminating this provision since it can have no possible effect, except a purely fiscal effect, which can be readily and completely covered in any Tariff proposals which the Government may wish to bring forward. The honorable and learned gentleman talked of preserving genuine, valuable industries. That, again, was a very wide and vague statement to make. What are “genuine, valuable industries”? Who would decide that? Everything would depend upon thepointof view. For instance, I understand that the Government contemplate bringing down a scheme for the encouragement of Australian industries. When that scheme comes before this House for consideration there will be the largest possible divergence of view as to whether those industries are worth cultivating in Australia. For instance, there are the cotton industry, the coffee industry, the silk industry, and many others. They are what may be called tropical industries. They may be valuable and. genuine. Theymay be important from one point of view. Some honorable members may regard them as very important industries, but others may think that they, are exotic, and that we ought not to attempt to establish them in Australia, where our wage rates and industrial conditions are at so high a level. I submit that the Attorney -General ought to give us further illustrations of the effect of this provision, or should, as has been suggested, consent to its excision from the
Bill as being totally unnecessary ; especially as we have subsequent clauses which cover every possible scheme or machination for the destruction of Australian industries by means of trustification, and the evils attendant thereupon.
.- I quite indorse everything that has been said by honorable members who have preceded me as to the unnecessary, character of the provision under discussion. I wish to add a few words as to what I take to be its complete unworkableness. As a layman, I am appalled by the amount of litigation that this paragraph is absolutely certain to occasion. I find that the question the Court has to decide in all cases before judgment can be awarded is whether or not the Australian industry in question is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers. The Court has to hear any evidence that may be adduced as to whether or not the industry is advantageous in the way named. We have recently had a Tariff Commission inquiring into certain industries in this very regard. The Commission has been sitting for a considerable time. It has inquired whether certain industries are worth preserving; for that practically was one of the purposes of its inquiry. I hold in my hand a digest of the evidence given before the Commission concerning the wine and spirit industries. This digest - which be it remembered does not contain the whole of the evidence - covers eighty-two- pages of closely printed matter. Does the AttorneyGeneral mean, to say that, if the Court has to receive and hear evidence of so voluminous a nature upon thequestion whether or not any industry is worth preserving, any section of the community will derive benefit from this measure except the legal fraternity ? Asa layman, I repeat, I am absolutely appalled at the amount of litigation to which this provision will give rise if passed in its present form. Other questions concerning it have been dealt with by honorable members who have preceded me. I shall not deal with, them at the present stage. But I do say that from whatever aspect this clause is regarded, whether from that of its fiscalism, and in that sense it is unnecessary as we have Part III. dealing with that question ; or whether from that of its unworkableness, it isequally inexpedient to include in it the paragraph under discussion.
Question - That the word “or,” proposed to be left out, stand part of the . clause - put. The Committee divided.
Majority … … 17
Question so resolved in the affirmative.
Amendment negatived. ,
Amendment (by Mr. Isaacs) proposed -
That the words “ the design of,” line 9, be left out, with a view to insert in lieu thereof the word “intent.”
.- I take it that the object of the amendment which the Attorney-General has carried in paragraph a is to give the defendant a reasonable opportunity . to evade an unjust judgment.
– We do not wish to punish a man unless he has a guilty mind.
– That, no doubt, is a better way of putting it. This amendment will have a contrary effect, because, in proceedings under paragraph b the defendant will be called upon to prove his innocence, and clause 6 provides that competition shall be deemed to be unfair until the contrary is proved.
– That has nothing to do with the intent.
– The defendant, if the amendment is carried, will have to prove that he had no intent to compete unfairly.
– It will be much harder for him if the amendment is not made.
– If the amendment is not made, the question will be one of fact ; but how can a defendant satisfy a Court as to what his intention was if he is to be deemed guilty until the contrary is proved ? Paragraphs a and b differ entirely, and I think that the Committee ought not to allow the proposed alteration in paragraph b.
Amendment agreed to.
– I move -
That after the word “ intent “ the following words be inserted : - “ To prevent the producers or vendors of goods from freely offering their wares for sale ; or
To prevent the consumer or purchaser from obtaining his goods upon the most favorable terms afforded by free competition in the open market.”
As I pointed out earlier in the day, the first part of the clause aims at the repression of monopolies, and so justifies the title of Part II. of the Bill; but the effect of the second part, if not amended, will be to promote monopolies, and belie the object of this part of the measure. I take it that we wish to prevent anything in the nature of monopolies which may hamper, discourage, or destroy trade. I hold that any combination whose object is to interfere with the right ofprimary producers, manufacturers, carriers, or sellers of goods, to carry on their operations freely, in accordance with the law as it stands, should be suppressed, and that, in like manner, any combination intended to prevent consumers or producers from having the utmost freedom of choice in the selection of their markets, and from buying or selling on the most favorable terms they can get, should be discouraged. We should not encourage the cornering of markets, or the preventing of makers or sellers of goods from placing their wares on the market to the best advantage, and at whatever prices they choose to ask. Neither should we interfere with the right of the public to purchase upon the best and most favorable terms that it can get. I wish to allow people of small means to obtain’ their goods as cheaply as possible, and to permit producers to supply their wants at prices which suit both parties. If a man invests money in the purchase of bankrupt stock, and buys it below its ordinary market value, he can, without selling at a loss, sell it again at prices below those ordinarily charged by retailers, and, in doing so, will, of course, compete with the retailers who have not bought under such favorable conditions. Similarly, at the end of a season, reductions upon the ordinary selling prices are the custom in trade. The public, however, is a gainer by such reductions, and we have no right to deprive persons of small means of these opportunities to supply their requirements at exceptionally favorable prices. Everything that operates to interfere with the freedom of makers, sellers, or buyers of goods to transact business for their mutual benefit is, I hold, an undue and unnecessary restraint of trade, and an arbitrary usurpation of the powers of legislation.
.- The honorable member for Kooyong has assured me that he did not mean anything when he called me a senseless individual, and, as he has withdrawn that remark, I withdraw what I said about him.
– I am sorry that words passed across the chamber between the honorable member and myself. I know his feeling towards me, and I am glad that he has withdrawn what he said. I, on my part, withdraw what I said againsthim, and with all the better feeling, because I know that some of his remarks were without justification.
– After the splendid example we Have had of voluntary conciliation, I think we can proceed to discuss the merits of the amendment. I can only say that its effect would be to reverse what we have already done, to defeat the object of the Bill, and to make an enactment that, so far from curbing the unbridled actions ofpowerful trusts, would make it penal to in anyway interfere with their operations-.
– Would not the amendment make the clause more in agreement with the heading of the part to which it belongs ?
– Instead of tending to repress monopolies, it would make it a penal offence to interfere with them. Any person who did anything, or agreed to do anything, that would in any way interfere with the gratification of the all-devouring appetite of these huge trusts, would be made a criminal. That being so, I have nothing more to say.
– I do not think that the Attorney-General could have read the amendment.
– I have read it very care,fully.
– The Attorney-General has stated that if the amendment were adopted, it would reverse all that has been done by the Committee, and undermine the whole purpose of the Bill. Now, let me direct honorable members’ attention to the amendment. It proposes to make it penal “ to prevent producers or vendors of goods from freely offering their wares for sale.” Is it the object of the Bill to interfere with the free sale or production of goods ? Does the Attorney-General wish us to understand that that is what has been already done?
– Read the whole of the amendment, and then ask the question.
– The amendment proceeds “or prevent the consumer or purchaser from obtaining his goods on the most favorable terms afforded by free competition in the open market.”
– The honorable member is not in favour of the Bill.
– We do not want to have any interference with free competition. We nave heard the honorable member complain in past sessions df the restraint of trade brought about by the alleged tobacco monopoly.
– Is the honorable member in favour of the Bill”?
– I shall give the honorable member my answer, and I hope that it will satisfy him so far as I am concerned, because I have heard him address the same question several times to the honorable member for Parramatta. I am able to reply with the greatest emphasis after what the Attorney-General has said. If, as the Minister states, the object of the Bill is to prevent producers and vendors of goods from freely offering their wares for sale, I am absolutely against the Bill.
– That is a palpable evasion.
– I am merely quoting what the Attorney-General has told us. The honorable member for Bland has complained of the restraint of trade for which, according to him, the tobacco monopoly is responsible. He has stated that certain agents and1 distributors are prevented from stocking goods other than those supplied by the tobacco combine. Under the proposed amendment it would be made penal for any person to prevent producers or vendors from freely offering their wares for sale. Therefore, so far” as the tobacco combine is concerned, the amendment would enable the operations of which the honorable member complains to be brought to an end. I do not see that it would do any harm, but, on the other hand, I believe that it would do much good. If the amendment is in direct contradiction to the spirit of the Bill, I think that we have arrived at. a sorry pass. The general public believe that we are passing a Bill that is intended to insure free competition. They do not imagine that the object of the Bill is “ to prevent producers or vendors from freely offering their goods for sale.”
– The object of the Bill is to secure fair competition.
– To all persons competing in the Australian trade ?
– The Attorney-General has come back a considerable distance after his remarks of a few minutes ago.
– The honorable member has been wandering. I have not come back.
– Hansard will show exactly what my ingenious friend has said, and exactly what my ingenuous friend the honorable member for Lang has proposed. I trust that the amendment will be persisted in.
Amendment (by Mr. Isaacs) agreed to-
That the words “of destroying or injuring,” lines 9 and 10, be left out, with a view to insert in lieu thereof the words “ to destroy or injure.”
– I move-
That the words “ in the opinion of a jury,” lines 12 and 13, be left out.
This is in accordance with the suggestion of the honorable and learned member for Northern Melbourne, which, I think, is a very good one.
Amendment agreed to.
Mr. DUGALD THOMSON (North Sydney [9.55]- - I propose to insert at the end of paragraph b an amendment which should not meet with much opposition. It will be noticed that unfair competition embraces, as is shown in paragraph, c of clause 6, competition which “ would probably, or does in fact, result in greatly disorganizing Australian industry, or throwing workers out of employment.” I do not think that any honorable member desires that our Australian industries should be so hedged round to protect them against competition that they will fall back into a condition as to efficiency which is not at all equal to the state of industries elsewhere. Therefore I move -
That the following words be added to paragraph b “ as well as to the efficiency of the management, processes, and machinery in the industry affected.”
I do not think that it should be held - as it would have to be held under the provisions of the Bill as it stands - that the disorganization of an industry, although due to inefficiency or the employment of imperfect machinery, would constitute a sufficient reason for restricting competition.
– Would not that be part of the interests of the producers?
– I am not so sure of that. I would rather see it distinctly stated.
– If the amendment were inserted, we should also have to provide that regard should be had to the hours of labour worked by the employes, the sanitation of the factories, and that kind of thing.
– That is already provided for. In paragraph b of clause 6 it is provided that the competition shall be deemed unfair “ if it would probably, or does in fact, result in a lower remuneration for labour.” The interpretation clause shows exactly what is meant by that. It says - “ Lower remuneration for labour,” includes less pay or longer hours or any terms or conditions of labour or employment more disadvantageous to workers.
That is perfectly distinct.
– The producers are not mentioned there.
– The honorable member might move to insert another paragraph in clause 6. That is the proper place in which to embody any provision of the character he desires.
– If the Attorney-General prefers that I should propose its insertion in clause 6 I have no objection to do so.
– Clause 6 is the proper place to’ insert any provision relating to unfair competition.
– I merely say that the ‘ matter should be taken into consideration. I believe it is the wish of the Committee that the efficiency of the management, processes, and machinery of any industry alleged to be affected should also be taken into consideration. Otherwise, we should declare that, however inefficient the management, processes, and machinery of an industry might be, any undue disturbance of it which resulted in displacing men from their employment would constitute a ground for deeming competition unfair. I do not think that that is intended by any honorable member, and therefore we might well insert some such provision in the Bill. If we fail to do so, we shall, in effect, declare that, however ancient the machinery or processes employed in an industry may be, competition with it is to be deemed unfair if, by the- use of better processes and machinery) that industry is disturbed, and workers are thrown out of employment.
– What the honorable member desires is that, in the determination of the question of whether competition is unfair, regard shall be had to the management, processes, and machinery of the industry affected.
– At the present moment I see no objection to inserting such a provision in clause 6.
– lt should be inserted after the word “circumstances,” and not where the Attorney-General first stated.
– It can be ‘inserted anywhere in clause tj. If we add a second paragraph, to read, “ In the determination of the question of whether competition is unfair, regard shall be had to the efficiency of the management, processes, and machinery of the industry affected,” that will carry out the view of the honorable member for North Sydney. As the matter strikes me at present, subject to further consideration, I see no objection to the insertion of a proviso of that sort. If, however, upon reconsideration. I do not think that it should be embodied in the Bill, I will move the recommittal of the clause, so as to give the honorable member an opportunity of dealing with it.
– I am perfectly willing to leave the’ matter open.
Amendment, by leave, withdrawn.
– I have been endeavouring to follow the amendments which have been made in this clause, and I understand that the words “ in the opinion of the jury “ have been excised. I desire to know who is to determine what is unfair competition and what is “ intent to injure or destroy an. industry.”
– The jury.
– I understood that the words “ in the opinion of the jury “ have been omitted.
– In criminal matters, as the honorable and learned member for Illawarra is aware, a jury has to find a verdict upon all questions of fact. It was pointed out by the honorable and learned member for North Melbourne that the retention of the words “ in the opinion of the jury,” as applied to the question of whether the preservation of an industry was advantageous to the Commonwealth, might make it appear that the expressiounius was to the exclusion of the other, and consequently there might be some doubt as to whether the other questions were to be decided by a jury. By striking out the words “ in the opinion of thejury “ it is made clear that all questions of fact are to be determined by a jury.
Clause, as amended, agreed to.
Clause 5 -
Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which wilfully, either as principal or agent, makes or enters into any contract, or engages in any combination to do any act or thing -
Penalty : Five hundred pounds.
Amendment (by Mr. Isaacs) agreed to-
That the word “wilfully,” line 3, be left out.
– I wish to draw attention to a point which I raised upon the motion for the second reading of the Bill. It has reference to the effect of the words “ enters into any contract, or engages in any combination, to do any act or thing.” How far do the words “enters into any contract” extend? For instance, would a bill of lading be considered a contract under this provision?
– The freight, for instance, might be considered high.
– I cannot conceive of any circumstances under which a bill of lading could be considered a contract with intent to restrain trade.
– I do not think that it should be so considered: I quite agree that the Bill would interfere with a shipping combination, which might be restraining trade to the detriment of the public. But a particular contract such as a bill of lading - although it might be considered a restraint of trade - should not be interfered with. I merely desire to know whether it would be so interfered with or not?
.- This clause aims at making a foreign corporation criminally responsible for a certain act. Now I would point out that a foreign corporation has no individuality in Australia.
– It can have.
– I doubt it. A corporation has no existence outside the territory in which it is created, except by courtesy. Unless we pass a law giving a status to a corporation it has no status within our borders. It may be represented by art attorney, but I cannot see how it can be indicted here.
– Cannot we wind up a foreign corporation so far as its property here is concerned?
– A foreign corporation is always represented by an agent or attorney. In this connexion I would refer the Attorney-General to an article in the last number of the Law Quarterly Review, in which it is pointed out that the assumption that corporations are entities in a foreign place is a mistaken one.
– I thought that the wellknown case of theCarron Iron Works decided that.
– I am dealing generally with the fact that a corporation is a special creation of the law of a particular place outside of which it has no existence.
– Does the honorable and learned member say that it cannotbe sued outside of that place?
– That point has not arisen. It may, under State laws, be sued through an agent or attorney, and, as a rule, corporations in Australia are represented by an attorney. But we are now dealing, not so much with the civil status of corporations, as with their criminal liability, and if it be true that a corporation in a foreign country has not1 a full-fledged status, except under the law of that country, I do not see how we can make it criminally liable under our Commonwealth Acts. S u rel v the AttorneyGeneral does not say that he is dealing with the status of foreign corporations under this Bill?
Mr.- Isaacs. - The Constitution does not refer to the “ status “ of foreign corporations, but to foreign corporations.
– But this is not a Bill dealing with the status of foreign corporations within our territory. The same observations would apply to clause 9. The scheme of that provision is to enable us to get at the agent of a foreign body.
– Amongst other persons.
– The idea underlying clause 9 is that we cannot very well get at a foreign corporation, and consequently we endeavour to get at its agent.
– We can get at a foreign corporation if it has sufficient property here to pay any fine imposed.
– But we cannot indict a foreign corporation. I desire to know whom the Attorney-General would select as the defendant in an information against a foreign corporation? This matter is verv fully elaborated in the article to which I have referred, which certainly does show with some amount of plausibility, that we cannot very well deal with a foreign corporation unless we pass a special Statute conferring upon it the status that it possesses in the country of its origin.
– With regard to the question which has been raised b- the honorable member for North Sydney, I cannot at present understand how a mere bill of lading given by a shipping combination could in itself be a contract in restraint1 of trade. But that would leave entirely untouched the combination which was outside the bill of lading, and of which the bill of lading was, so to speak, only the result. I should not think that the bill of lading could by any possibility fall within the provision.
– I know that there is some fear that it may.
– I do not think that there is any ground for the fear. Of course, a bill of lading might be evidence of the overt act of an offender. But as far as I can see it could not by any stretch of imagination be brought within the Bill as being in itself a substantive offence. With regard to the position of foreign corporations it is a very difficult question which the honorable and learned1 member for Angas has raised. But I take it that the power given to the Federal Parliament under the Constitution to legislate with respect to foreign corporations and trade and financial corporations formed within the Commonwealth enables us to pass any legislation we think necessary with regard to those objects. Therefore, knowing that foreign corporations do trade in our midst, their head office being wherever they were formed and incorporated, and some of their branches or agents being here, undoubtedly they could Le sued civilly under clause 11, and the persons who represented them here, and who were party or privy to the offence, if there was an offence by the foreign corporation, would come under clause 9.
– If the corporation itself were not liable under this clause its agent could not be liable under the other, because a man could not be accessory to a crime that did not exist.
– I think the fact that a foreign corporation, though formed in one country may trade in another country, and have its residence or domicile there, enables us to legislate in this way. In consequence of what was done on a previous clause at the suggestion of the honorable and learned member for Northern Melbourne, I move -
That the words “ to do any act or thing,” lines 5 and 6, be left out.
– The more I look at this clause the more difficult it seems to me to do anything of an effective character. The utmost that could be done would be to haul before the Court the agent or representative of one of these foreign trusts. After an industry had been dislocated, workers thrown out of employment, wage rates lowered, and internal trade destroyed, all that could be done would .be, not to get at the trust, but to fine the agent in the sum of £500. The trust would pay the fine, . and go on smilingly.
– Not if there was an injunction against them.
– Does the honorable and learned member propose to take out an injunction against them?
– Yes. First of all, there is clause 10, and then there is an amendment in clause n which we have circulated, and which will allow instead of imprisonment for the first offence an injunction to Le granted straight away upon conviction.
– That, of course, will meet the case to some extent. But it seems to me that unless the AttorneyGeneral does contemplate asking for these injunctions, and stopping the depredations of which he complains, the penalties will be a mere flea bite.
– Certainly, if that were the only thing which could be done.
– How the honorable and learned gentleman proposes to get hold of the right man so as to make him toe the mark I am quite unable to understand.
– The culprit would be the man who was doing the thing. In Victoria there is no difficulty, because ever foreign corporation must register.
– All they would have to do would be to go outside Victoria where that was not required.
– The local Statutes do not help this particular measure.
– I do not think so. At any rate, it is so purely a matter of law, that I, as a layman, hesitate to express an opinion.
– Why does the honorable member want to fill up all the pitfalls?
– I venture to say that this will be a very good thing for the lawyers.
– If the honorable member is against the Bill, the more pitfalls he has the better.
– I am not against the Bill, but against some of its provisions. Really, what makes one tilt against the Bill so much is the skilful way in which it has been charged with the dominant fiscalism of the day. Ostensibly, a Bill to stamp out trusts, it is really a Bill for the protection of Australian industries in a more effective way than a straight-out Tariff reform would’ do.
– The honorable member means by that that protection is the only way in which to advance the interests of the country?
– I do not quite understand the interjection. I am simply speaking of the difficulty of dealing with, the Bill in a sensible straightforward manner, owing to the way in which anti-trustism and anti-fiscalism are mixed up together. However, if the Attorney-General is satisfied that he could get hold of the real culprit and effectually stop the trouble, I shall have to be content with that assurance.
– The law cif Victoria provides very effectively for the registration of a public officer. Some of the other States, I think, have not got their law in so complete a form, but we are now engaged upon the work of unifying the companies and the insolvency laws, so as to put these matters upon a regular and uniform basis.
Mr.. DUGALD THOMSON (North Sydney [10.26]. - The last remarks made by the Attorney-General really indicate that at an earlier stage we ought to have directed our attention to the framing of a universal law for corporations and companies operating throughout the Commonwealth. Had that course been taken, some apparent difficulties in connexion with this measure would not have arisen. I wish to point out to the Attorney-General a difficulty which I expressed when we were dealing with another clause, and which seems to be more manifest in this clause, which touches any foreign corporation, or trading -or financial corporation, formed within the Commonwealth, but carrying on its operations in only one State.
– It includes that.
– Previously, we provided for corporations which were engaged in Inter-State trade, but here we are trying to provide for corporations, local as well as foreign, which confine their operations to one State. If such a corporation injured an industry, it would only injure the industry of that State. It would not injure the industry of all Australia.
– If one of the honorable member’s arms were injured, he would be injured.
– The honorable and learned member is getting away from the position which he previously occupied. I really cannot follow him. Previously, he stated that a competitor in an industry who injured another competitor - that fe another, limb or arm o)f the industry - could not be touched by the Bill. It was only when he injured the industry of all Australia that he could be reached.
Mi. Isaacs. - Oh, no. I never said that in order to commit an offence a person would have to go all over Australia.
– No ; but the honorable and learned gentleman said that a competitor, or a section of competitors, in an industry who injured the industry of a particular State or district or town, could not be held to be injuring the industry^ of all Australia. Here we have a competitor who is a limb or branch of an industry in one State, and the AttorneyGeneral now implies that under this clause that limb or branch, if it injured another limb or branch, would be liable to the penalties under the Bill.
– Suppose that an off-shoot of the American Tobacco Company, for the sake of carrying on business here, registered itself as ah Australian company, anr! then started to break down all the Australian manufacturers of tobacco, would not that be a case in point?
– If so, an off-shoot of an American tobacco company established itself as an Australian industry, then, because the operators had come from America or England, they would be liable to the penalties under the Bill. But an off-shoot of an Australian tobacco industry - a competitor conducting operations in the same way, getting his supplies from the same source and using the same unfair competition - would not be liable to the penalties under the Bill.
– Is not that a matter for the Judge by-and-bv?
– The AttorneyGeneral is expressing his interpretation of the clause.
– Yes ; but we are not bound by his expressions.
– I gave that only as an illustration in answering one objection.
– Of course, we can all form our own conclusions, but, naturally, we wish to know what we are supposed to be doing in adopting certain provisions. It is not enough to have a general provision, and leave the Court to decide ; we ought to know whether we are doing all we intend to do. We are trying by this provision to reach corporations which operate only in one State. With all respect, I say that if the Attorney-General’s reading of the previous clause is correct, a competitor in an industry unfairly competing with another person or firm in that industry cannot be made liable for penalties under this Bill, because he does not injure the whole Australian trade, but only his particular competitor’s portion of the trade. Therefore I submit that there are contradictions in the Bill - contradictions which, according to the Attorney-General, ought to be removed if recognised. I know that the task of the Attorney-General is a difficult one, but still a statement which is made to secure the passage of one clause should be taken into consideration when dealing with another clause, which, if the statement Le accurate, would not attain the purpose intended. I see those difficulties, in addition to that pointed out by the honorable and learned member for Angas, and also the further constitutional difficulty referred to by the honorable and learned’ member for Northern Melbourne. I do not know whether the Attorney-General dealt with the latter point.
– I referred to it.
.- Legal gentlemen have, by interjection during the last quarter of an hour, stated that there are pitfalls in this clause - that rich people who can brief the legal fraternity will be enabled to drive a coach and four through the Bill. That is an opinion which I commend to the attention of honorable members in the corner.
– That is said about every Act of Parliament.
– And is mostly true.
– I am afraid it is very true in regard to this Bill.
– If the honorable member thought so, he would allow the Bill to go through.
– The honorable member is saying something which he knows to be incorrect. I did my best this afternoon to allow no pitfalls in the measure, so far as I could prevent them. Here, however, is a pitfall which the honorable member for Yarra is prepared to allow to remain; the honorable member is prepared to allow the powers of wealth to be used to evade the penalties which these clauses impose. I have risen to ask the Attorney-General whether he can throw any light on the opinion expressed by the legal gentlemen to whom I have referred ?
– I do not know of anY pitfalls.
– For instance, is the AttorneyGeneral convinced that in States where the companies laws are not similar to those in “Victoria, the Commonwealth can sue a corporation in its corporate capacity ?
– I think so; I see no difficulty.
– The Attorney-General will see that a foreign corporation has no corporate being in Australia, an agent here not having any status until he is ‘ given status by Act of Parliament. Here we have a proposal to deal with these corporations or agents without giving the agents any status ; and there is a pitfall that will suggest itself to any honorable member. This clause is, I think, intended to prevent any organized attempt on the part of wealthy foreign trusts to strangle a growing Australian industry.
– Has the honorable member read clause 9 ?
– I have read all the clauses.
– Does clause 9 not meet the objection the honorable member is raising ?
– I do not think it does.
– The Attorney-General thinks it does.
– The Attorney-General has never said that clause 9 meets the objection.
– Yes, I have said that I think clause 9 meets the objection. The position would be serious if ft were not for the fact that a corporation can only act by individuals. As I explained a little time ago, a foreign corporation, wherever formed, must have its residence or its domicile where it is carrying on business. If a foreign corporation establishes’ a branch, and puts its name up, it is there operating, and it can only, from the nature of things, operate by individuals. If a foreign corporation is a member of a combination in contravention of the Bill, and if under clause 9 some person in the employ of the corporation, directly or indirectly, is knowingly concerned in or proved guilty of an offence, he is dealt with as an original offender.
– Can both the corporation and the agent be penalized ?
– Of course. What we say is that the corporation is a party to the offence, and is liable to a penalty of ,£500 - that is all that can be done to a company.
– But having done that, can the agent also be penalized ?
– Yes. It is as if two persons, a master and servant, were committing an offence, and they can both be punished.
– Would anybody penalized under clause 9 have to pay the penalty under clause 5, in view of clause 6 ? I am referring to the question of unfair competition.
– -Th-ere is no penalty under clause 6.
– Clause 6 imposes the onus of proof unden certain contingencies; will the onus of proof be equally imposed under clause 9 ?
– Then it seems to me that clause 9 does meet the case.
– I omitted to make clause 5 agree in another respect with clause 4. With that end in view, I should like to move that after the word “ engages “ the words “or continues” be inserted.
Amendment, by leave, withdrawn.
Amendments (by Mr. Isaacs) agreed to-
That after the word “engages,” line 5, the words “ or continues “ be inserted ; that the words “ to do any act or thing,” lines 5 and 6, be left out; that the words “in restraint of,” line 7, be left out, with a view to insert in lieu thereof the words, “ with intent to restrain “ ; that the words “ the design of destroying 01 injuring,” line io, be left out, with a view to insert in lieu thereof the words “ intent to destroy or injure.”
Amendment (by Mr. Isaacs) proposed -
That the words “ in the opinion of the jury,” line 13, be left out.
– ls it meant that there shall be no jury at all?
– I quite agree with the omission of these words. Does the AttorneyGeneral intend to take into consideration the suggestion of the honorable member for Bland with regard to a first offence coming before a Judge only ?
– I intend to consider that point. At present my inclination is not to accept the suggestion, but I will consider how it will operate. The object of the amendment before the Committee is to meet an objection which the honorable member for North Sydney pointed out, that the insertion of the words “ in the opinion of the jury “ in this particular place connects the opinion of the jury with one particular fact only - the preservation of industry ; and it would appear that we do not wish the jury to express an opinion on the other facts of the case. The’ mere mention of it in this particular place might be an indication that that was the only thing which we wished the jury to decide.
Amendment agreed to.
– I desire to point out that it is quite a common thing to indent goods. I can conceive of goods to the value of £7,000,000 - according to the list of the Minister of Trade and Customs- being indented by trusts. There are no means under this Bill by which we could strike at such trusts.
– The question is whether the endeavour is to break down Australian industries or to restrain trade and commerce.
– The goods would be imported for the purposes of legitimate trade, but at the same time the trust would be operating in Australia to the injury of Australian industry.
– What. harm does the honorable member conceive that the trust would be doing?
– My point is that provision is made for coming down upon an agent, but that the trusts could do their business in Australia without agencies.
– If any wrong was done, we could come down on them.
– How could the Bill affect a trust if it had no agent here? We should be quite unable to attack the oil trust or the steel trust under this measure.
– The honorable member will help us to pass the dumping clauses, then ?
– What I refer to would not be done by means of dumping. Suppose an order were given for £100,000 worth of railway construction material. An American trust could execute that order and indent the goods. Under this Bill we should be unable to stop the destruction of Australian industries in that manner, although the prices quoted would be for destructive purposes.
– If the competition was unfair we should be able to stop it.
– There might be no unfair competition, but at the same time there might be destruction of Australian industries.
– Fair competition we do not intend to prevent, but unfair competition the Bill does strike at.
– We want to prevent the operation of trusts in Australia to the injury of Australian industries. I am opposed to the operation of destructive trusts.
– Economically destructive ?
– Yes, destructive of our native industries.
– The honorable member is advocating the Bill.
– I am in favour of anti-trust legislation. I wish to prevent the operation of trusts that would destroy our industries.
– The honorable member means economically destroy them?
– Then the honorable member is a protectionist.
– We have to go further than- the book written by the honorable member for Parkes nowadays. That work is out of date. When he wrote it trusts had not commenced to operate, and the means by which trade could be paralyzed in this way had not been brought to the pitch they have attained to-day. There is the oil trust, with £4,000,000 at the back of it, and the steel trust, with £400,000,000. These trusts operate in Australia through indent agents, and will sell their goods at prices which would destroy Australian industries, and throw men out of employment, and when they were alone in the field raise prices to the consumer. What provision is made in this Bill to prevent that taking place?
– Unless the competition is unfair, there is no provision in this Bill to meet it, and if it is unfair, there is any amount of provision.
– There is only one way in which such legislation as this can be made effective, and that is bv nominating the trusts, and the articles which they produce, in the Commonwealth Gazette, after a comparison of the prices at which they sell their goods here and their prices in other countries. At present, any shrewd man of business could get round this Bill.
– I wish to direct attention to sub-clause 2, because as it is framed. I think it will go much further than the Attorney-General intends. I presume that he does not desire that it shall apply to every contractor, unless there has been a prosecution. I suggest that after the word “ contract,” the words “ adjudged to have been,” be inserted, so as to make the sub-clause read -
Every contract adjudged to have been made or entered into in contravention of this section shall be absolutely, illegal and void.
If the sub-clause is left as it is, it will subject every contract made in the country, concerning which there has been no prosecution at all, to the charge of being invalid, because it is in breach of clause 5.
– Every contract in restraint of trade.
– But unless it has been adjudged to be in restraint of trade, I apprehend that the AttorneyGeneral does not wish it to be held illegal.
– ‘Yes, I do.
– I do not think that the Attorney-General has sufficiently considered this. If it is obvious that there has been an intention within the meaning of clause 5, I take it that there will be a prosecution, and, following that, a judgment, and I could understand the Bill enacting that any contract adjudged to have been made or entered into in contravention of the section shall be absolutely illegal and void. But if the Attorney-General opens up to parties to a contract this new defence that it is void under section 5 of the Australian Industries Preservation Act, every one who has entered into a contract may be called upon to embark in litigation involving him in an expenditure of hundreds of pounds. Surely it would be sufficient to say that contracts adjudged to have been made or entered into in contravention of the Act shall be void. Sub-clause 2 now provides that every contract, including every conceivable agreement which can be entered into throughout the Commonwealth, made in contravention of this clause shall be absolutely illegal and void.
– The Sherman Act provides that every contract or combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce, is hereby declared; to be illegal.
– I think we realize that the Sherman Act has been a failure.
– Not on this account.
– The AttorneyGeneral has no evidence that that provision has been a success, or that it has not proved objectionable to the mercantile world. Surely it is enough to say that any contract adjudged to have been made in contravention of the section shall be void.
– If a foreign or Commonwealth corporation makes a contract intended to be in restraint of trade or commerce, tothe detriment of the public, we say, first of all. that there may be a prosecution; but where evidence- sufficient to justify a prosecution cannot be obtained, we allow one of the parties to say, “ We admit that this contract was made with intent to injure the public, and we shall not be bound by it.” Why should the other party under such circumstances be able to say, “ You must be bound by it. Until I am prosecuted and condemned by Judge and jury I insist that you shall carry out the contract.” Why should we not allow either party, if it repents, to say, “We shall not go on with the contract,” instead of putting the Commonwealth to the vast expense of a prosecution? Surely if the contract, is improper, and the bargain nefarious, we should give either party the right to saythat thev will not carry it out.
– A Judge will be brought into the matter in any case.
– Only if the other party dares to question the right to withdraw. The shortest way of putting an end toillegal bargains is to say to the parties to them, “ You are not bound by them.” It seems to me that this arrangement would* save a good deal of bother and expense.
– The Attorney-General assumes that one of the parties to a contract will come forward, and confess that it was entered intoin contravention of the provisions of the Act. That is no answer to my contention, and, in mv opinion, the assumption is unreasonable. No one would make such an admission. The provision to which I takeexception opens a door by which rogues mav get out of their contracts by merely saying that thev are in contravention of section 5.
– If rogues have made such a contract they should not be compelled” to adhere to its terms.
– The AttorneyGeneral is providing an escape from itsobligations for the roguish element in our commercial life, because, when a party toa contract does not wish to carry it out, because the market has fallen, or has risen, he can dissolve it by saying it is in contravention of section 5 of the Australian Industries Preservation Act.
– There seems to me to be another side to the case presented by the honorable and learned member for Parkes. A contract might be made bond fide for the supply of agricultural implements, but, owing to another contract having been declared illegal and void, innocent people might suffer through not having machines supplied to them just prior to harvesting, when they were in immediate want of them. What remedy would they have?
– The honorable member is putting a case in which vendors may have made a contract in contravention of the Act, while the vendees were perfectly innocent.
– Yes. Under this arrangement great injury may be inflicted upon innocent persons.
.- I wish to protest against a portion of this clause, on the grounds upon which I objected to portion of clause 4. The arguments which I adduced against the latter part of clause 4 hold good as applied to this clause, the only difference between the two provisions being that, whereas clause 4 dealt with persons and combinations within the Commonwealth, this clause deals with foreign corporations. I am in perfect accord with the first portion of clause 5, which aims at preventing foreign corporations from doing anything in restraint of trade or commerce in the Commonwealth to the detriment of the public, but I do not approve of the proposals to interfere with the importation of goods from foreign countries. The effect of the clause as it stands will be to give an absolute monopoly to local producers by shutting out all competition, and to enable them to artificially increase prices, and thus decrease the purchasing power of the people. All through this Bill, the general public receive the least consideration. The fullest regard, however, is paid to the interests of the producers andparticularly to those manufacturers who carry on operations in Victoria. I have no hesitation in saying that we are legislating, by means of measures of this objectionable character, against the best interests of the people of the Commonwealth. I know that it is of no use to move an amendment, because it would meet with the same fate that befel my previous amendment. I shall, therefore, reluctantly content myself by entering the strongest possible protest against legisla tion of this drastic and tyrannically unfair character
– I move -
That the words “ adjudged to have been “ be inserted after the word “ contract,” line 19.
Another reason has occurred to mesince I spoke previously. This clause is intended to deal with corporations that enter into contracts in restraint of trade, and the maximum penalty is fixed at£500. No imprisonment is provided for. Therefore, it would be open for a corporation to make a contract involving thousands of pounds, and in the event of the market proving to be unfavorable to their operations, to risk the £500 fine and decline to carry out their undertaking. All they would have to do in order , to escapetheir responsibilities would be to show that their contract was made in restraint of trade.
– They would have to show that the contract was made with intent to restrain trade to the detriment of the public.
– There is nothing to prevent a contractor from stating that he intended to act in restraint of trade. That would be a psychological question, and no one would controvert his statement. If we are not careful, we shall open the door to unprincipled traders, and enable them to escape ‘from their responsibilities by raising another defence for breach of contract.
– I would only add to what i have already said, that I do not think that it would be sufficient for the defendant tosay that he had the intent to restrain trade. He would have to prove that the plaintiff also had that intent. The case would be very similar to that of a lease liable to be declared null and void upon a breach of any of the conditions. The lessee in such a case could not, merely by breaking one of the conditions, escape from his responsibilities.
Clause, as amended, agreed to,
Evasive Answers by Ministers.
Motion (by Mr. Deakin) proposed -
That the House do now adjourn.
.- I wish to draw attention to the methods of evasion that have recently been adopted by the Minister of Defence in regard to the answers given to questions asked by honorable members. If Ministers do not care to answer a straightforward question they have the right to refuse. Considerations of public policy may demand that they should refuse. I do not think, however, that any consideration of public policy could be urged as a reason why a Minister should evade his responsibility to this House to supply such information as honorable members are entitled to. The honorable member for Maranoa recently asked a series of questions of the Minister representing the Minister of Defence, and received answers which were a perfect travesty. Today I asked four very simple questions, and I did so in the interests of the Defence Department. The answers that I received were absolute evasions. I asked in the first place whether officers seeking responsible positions in the Imperial service must have passed a certain examination. The statement made in reply was not an answer to my question. It was merely an assertion that certain officers had not passed such an examination, and that they had been appointed before the examp nation was* instituted. I tasked the question with reference to a present-day fact, and did not receive an answer.
– If the honorable member continues much longer the House will be counted out.
– If I am not to be afforded an opportunity to state my grievance now I shall move the adjournment of the House to-morrow afternoon. The other questions addressed to the Minister representing the Minister of Defence by me were evaded in the same flagrant manner. My questions were asked in the public interest, and I desire to know why the Department cannot supply reasonable answers. Is it not in the public interest that honorable members should be informed whether the Defence Department is in a state of efficiency or inefficiency ? If it is in a state of inefficiency, we should know it. If it is in a state of efficiency, what harm would there be in making public the fact? We have to vote the money for the maintenance of the Department, and we are entitled to information as to whether or not our officers are efficient. Ministers in evading their responsibility cannot claim to be acting in the public interest, and therefore they must be endeavouring to serve the interest of some individual. Private inter ests should not outweigh considerations of the public weal. I asked my questions with the honest intention of finding out whether we have in the Commonwealth officers competent to occupy certain high positions. It is a duty which I owe to my constituents and to Australia to ascertain whether there are officers so qualified, and if I cannot obtain the information it is a fit subject for comment on the floor of the House. If .there are not officers so qualified, it may be all very well in “ the piping times of peace,” but it will become a very serious matter if ever there should be an outbreak of war. ‘ I did not raise this question until it was actually forced upon me. To-day I asked a few questions, which it was the duty of the Minister to have answered in a straightforward fashion. He saw fit to evade them. I warn him that if these attempts at evasion are continued I shall have to do something more than comment upon them on the ordinary motion for the adjournment of the House.
– At this hour of the evening I do not desire to enter into any dissertation upon the large interest which the honorable member has in the country and the small interest which the Government has. There has been no attempt at evasion upon my part. The honorable member virtually asked if Colonel Bridges was the only officer in Australia who had passed a certain examination.
– I certainly did nothing of the kind. The insinuation is about as mean a one as I have ever! heard uttered in a deliberative Assembly.
– I have always treated the honorable member with infinite mercy. I have spared him over and over again when his incompetence has been a fit butt for me.o
– The Minister is now becoming impertinent.
– Honorable members must understand that under no circumstances can they brow-beat me.
– Nobody has attempted to brow.-beat the Minister.
– At all times I have treated honorable members both inside and outside the House with the utmost courtesy.
– The Minister has treated them as if they were ciphers very often.
Mk. EWING. - As the honorable member is aware, the answers which are given to questions here are handed to me by the
Minister of Defence. He is responsible for them, and I give his replies exactly as they reach ,me.
– The Minister is making the matter a personal one. I do not know what all this heat is about.
– The Minister of Defence sees lit to answer questions in a certain way. If at any time the honorable member for Wentworth believes that there is any information which has not been supplied to him, and which ought to have been supplied, let him put another question upon the business-paper. If there is any question that ought to be answered, and he cares to bring the matter forward either tomorrow or the next day, I will endeavour to obtain the information for him. At the same time he should understand, in regard to these reports and military matters generally, that it is not fair to ask the Minister to divulge everything. It is not just. There are some things which ought not to be disclosed.
– Surely the state of efficiency of the Department is not one of them.
– I will withdraw all the disagreeable things that I was saying, and I promise the honorable member that if there is anything further that he wishes to know - anything that a reasonable man might ask - I will endeavour to secure the information for him.
.- By way of personal explanation, I desire to say that the name of a particular officer was mentioned just now by the Minister, in reply to my statement. To the best of my knowledge, that officer is in no way a candidate for the position of Inspector-General of the Commonwealth Forces.
– The honorable member can only explain any matter upon which he has been misunderstood.
– Anybody who cares to look at the questions which I asked to-day will fail to find in them the slightest mention of that particular officer in any connexion whatsoever. The reason why I asked the questions in regard to this particular examination was that, about a week ago, an officer - a friend of mine - who is in no way connected either with Colonel Bridges or any of the claimants for the position of Inspector-General, mentioned that in England there –vas an examination’ held for positions in the higher branches of the service, and suggested that the papers might be sent out here, so that local officers might undergo the same examination. So much for the unworthy insinuation of the Minister that my questions were addressed to him in the interests of a particular officer.
– By way of personal explanation, I should like to say that the honorable member has absolutely misunderstood me.
– I am afraid that the House did so, too.
– Probably it did. So far as Colonel Bridges is concerned, I have as high an appreciation of him as the honorable member can have.
– He is the best man that we have in the Forces.
– I asked the honorable member for Wentworth in the most innocent way possible whether the information which I supplied to him was not that which he desired. Colonel Bridges is the only officer in Australia who has passed the examination to which he referred.
– There is not a reference to Colonel Bridges in the whole of my questions.
– In reply to the honorable member, and without any desire to be mean, I asked if he did not wish to know whether Colonel Bridges was the only man in Australia who had passed that examination.
– What ground had the Minister to make such an insinuation ?
– Simply this : Certain information was sought. There is only one officer inr the Commonwealth who has passed the examination to which reference was made. Was not that the information which the honorable member desired, and was it not supplied to him? In conclusion, I may say that I appreciate the worth of Colonel Bridges quite as much as does the honorable member.
.- The Vice-President of the Executive Council appears to have made this a personal matter between the honorable member for Wentworth and himself. The indictment of the honorable member for Wentworth was not against the Minister, but against those controlling the Department of Defence. I am sorry to say that I have been subjected to the same sort of treatment as has been meted out to the honorable member for Wentworth, so far as replies to the questions which I asked regarding the men who have been dismissed from the Field Artillery at Warrnambool are concerned. I desire, therefore, to emphasize his protest. I asked certain questions, and I was told that certain information would be supplied to me. To-day I again put the questions, but I find that more information has been given to the daily newspapers than has been supplied to me. I say that that is not right.
– Has it been supplied to the newspapers?
– At any rate, it appears in the newspapers. The information which the press has published is, I believe, correct, and could only have emanated from the Department of Defence. I maintain that members of this House are entitled to the fullest information from any Department, and it should be supplied to them before it is given to any newspaper. I emphasize the remarks of the honorable member for Wentworth that the Defence Department is to blame in this matter. The Vice-President of the Executive Council must recollect that the members of this House who ask the questions which appear upon the business-paper ave not the only persons who are interested in the replies which are given. They are of interest to a number of people outside. Those who are vitally interested in these matters have a right to get the. information. I hold that, at all times, the House is entitled to the fullest information that can be supplied, without the Department giving away secrets to the disadvantage of the country. We only ask for the kind of information which can be given to the newspapers.
Mr. JOSEPH COOK (Parramatta [11.31]. - I hope that this discussion will lead to the clearing up of this matter. I, for one, shall be glad if it leads to a different attitude on the part of the Minister representing the Minister of Defence here. Generally, with regard to questions which are asked by honorable members on this side of the Chamber, he seems, at any time, to be more disposed to raise a laugh at their expense than to answer civil questions. I have no doubt that he would feel as we do sometimes if he were constantly made the butt of some jocular remarks when he was asking a serious question of a Minister.
– We experienced that when we were in opposition.
– It may be a matter for the honorable member to laugh at, but it is no laughing matter to those who have to submit to it day after day
– Remember what we had to submit to from the right honorable member for East Sydney when we were in opposition. We were met with jocular remarks on every occasion.
– The honorable member is prepared to defend anything if it has the remotest connexion with this Ministry.
– That is not fair.
– Is it not a fact? Two minutes ago he entered the chamber, and almost immediately he begins to say something in defence of the Ministry.
– I was only reminding the honorable member of what we had to suffer.
– I should be obliged if the honorable member would leave Ministers, who are quite capable of speaking, to defend themselves. They are really not quite so incapable as to need his constant protection and defence. After all, this is not an important matter, but it illustrates the conduct of Ministers towards honorable members on this side. I advise the honorable member for Richmond, in all good faith, to treat honorable members on this side with the deference which is due to them, no more and no less. I take it that we are all equal here, and that the fact of sitting on one side or the other of the chamber should not make the slightest difference in these departmental matters.
– The honorable member knows that it does not.
– I am afraid that I cannot subscribe to that statement. If the honorable member has done it unconsciously we are prepared to acquit him of any intention, but it is a fact, nevertheless, that at any time he would rather make a joke than face a serious question with the seriousness which it deserves.
– It is constitutional with him.
– It appears that sometimes it is constitutional with the honorable member not to joke, but to come to the table and beat his breast in a most defiant way. If the honorable member for “Bland” had arrived two minutes earlier, he would have seen revealed another side df the Minister’s character, and one which I do not desire to see revealed any further.
I think that there is a very justifiable complaint beingmade, particularly in regard to questions affecting the Military Department. I do not think that answers to questions such as come here from day to dayoughtto beturned out of any Department. I submit that an honorable member suffers a gross injustice in the House when he is denied information about matters, particularly concerning his own electorate, but which is given fully in the press next morning. That is a gross discourtesy to the House, collectively and individually. I hope the Minister will look into it.
.- I have to complain thatthe answers to questions put to the representative of the Minister of Defence here are very evasive. I do not blame the Minister, because I know very well that he is not responsible for the answers. But I blame the officials of the Department. If they are allowed to badger us as they do, and the Minister takes no notice of the fact, it will be our own fault. It is the right and privilege of every private member to ask questions, and to get them answered properly, and it is not the privilege of officials to evade answering questions at every possible opportunity. With regard to Colonel Bridges, it is an open secret - I was told of it on Monday last - that he had passed the examination referred to. I told the honorable member for Wentworth about it on Monday or Tuesday.
– Perhaps I got the information as soon as the Minister did. At any rate, I was satisfied with what I heard, and so was the honorable member for Wentworth. I think that he only asked fair and square questions. I felt aggrieved by the answers which were given to my questions the other day, because they were evasive from first to last. If we do not stand up for our privileges, 110 one else will. I do not blame the Minister in this matter, because 1 know that sometimes the answers are only brought to him as he is entering the chamber, but I think that he ought to arouse the officials to a sense of their duty.
– They want to apply militarism to members of Parliament as well as their own troops.
– In many casesthey do. I am sure that the Minister willcarry out his promise to give any information which we may require.
Question resolved in the affirmative.
Mouse adjourned at 11.36 p.m.
Cite as: Australia, House of Representatives, Debates, 4 July 1906, viewed 22 October 2017, <http://historichansard.net/hofreps/1906/19060704_reps_2_31/>.