2nd Parliament · 3rd Session
The President took the chair at 10.30 a.m., and read prayers.
In Committee (Consideration resumed from19th July, vide page1523).
Clause 1 -
This Act may be cited as theEminent Domain Act1906.
Senator Sir JOSIAH SYMON (South Australia) [10.32]. - I move -
That the words “Eminent Domain “ be left out, with a view to insert in lieuthereof the words “ Lands Acquisition.”
The term” Lands Acquisition Act “ would shortly describe this measure, lis object is to make provision for the acquisition of lands and lands only, and interest in lands, by the Commonwealth. The long title is -
An Act relating to the acquisition by the Commonwealth of land required for public purposes, and for dealing with land so acquired, and for other purposes connected therewith.
The short title, I think, should agree, as far as possible, with the long title, and the object of the Bill. It is a Bill for the acquisition of lands by the Commonwealth, and consequently we wantto so frame the short title thatthe uninitiated may readily understand what the object aimed at is. The short title merely compresses the long title into the fewest available number of words. The term, “ Eminent Domain,” is misleading in that it covers a very great deal more than the acquisition of land. Eminent Domain “ is not what is being dealt with by the Bill. It is a mere theoretical expression which indicates the source from which power is derived for the purpose of enabling a sovereign authority to take lands forcibly, if need be, from: the individual for the good of the community. That is a power which rests necessarily in every sovereign authority, because the interests of the individual must be subordinated to those of the community. “ Eminent Domain “ is not a familiar expression to any of us, and even those who are’ trained Englishlawyers are unaccustomed to it. It is not known to the municipal law of England or the Bri tish Empire. It is used by public writers on international law, as indicatingthat condition of things in relation to an independent sovereign in his own territorial dominions, ‘ which precludes any other sovereign from exercising domain within them. That was the origin of the expression. It was a phrase used in international public law. Within the last twenty-five or thirty years it has been adopted in America to . indicate that the United States, in the exercise of their power as a sovereign people, were entitled toacquireforcibly, if need be. not merely the lands of private persons, but all their personal property. Everything which was supposed to belong to private individuals in the community was liable, as it is under any sovereignty, to be taken over for State exigencies or necessities. The term is used in that country, but it is not known to the English law. It does not define the object of this Bill. If “ Eminent Domain “ is to be adopted as a doctrine here, and the subject of enactment, it ought not to be used as a short title. A Bill which is for a limited purpose to deal with the acquisition of lands only should not be covered by such a short title as though it were dealing with the acquisition of all property which belonged to private individuals, and which was intended to be taken for the benefit of a State. I think it will be plain to -honorable senators that that will be undesirable. The Bill docs not deal with those principles, even as they are understood in America, which are covered by the theoretical expression “ Eminent Domain.” It only covers the acquisition of lands. We should make the short title of the Bill intelligible to the casual reader. Then I have a strong objection to our importing terms with which we are not familiar.
– After listening very carefully to the remarks of Senator Symon, both yesterday and this morning, I venture to suggest to the Committee that he has not advanced any solid reason why the title he urges should be adopted in preference to the short title of. the Bill. No doubt we all aim at getting simplicity in titles. The title of the present Act - Property for Public Purposes Acquisition Act - is’ very cumbersome. The title which is suggested by the amendment is “ Lands Acquisition Act.” In all the Stales there is a number of Acts on this subject. Here, for instance, is a volume of Tasmanian Statutes, in which I find following close upon one another a Land for Public Purposes Acquisition Act 1884, a Lands Resumption Act 189-1, and Lands Resumption Act 1902. There is another Act bearing on the same subject which does not seem to have any particular short title. Then there are the Lands Vesting Act 1898, and the Lands ‘Clauses Act 1857. All these Acts have their parallels in the Statutes of the different States. There is one way of indicating to the people of the States who will be affected by legislation of this character, which is analogous to States legislation, the difference between the enactments of the Commonwealth and the corresponding enactments of the States.
– Did the Government find any necessity for choosing another title for the Conciliation and Arbitration Act? They adopted the same title as that of a State Act in that instance.
– Possibly if we could have adopted another title it would have been advantageous. But the Constitution enables us to legislate with regard to conciliation and arbitration, and it was desirable that we should adopt the terms of the Constitution in that respect.
– So does the Constitution enable us to legislate with regard to the acquisition of land.
– But we are not absolutely tied with regard to the particular title we shall adopt for any piece of legislation. In the case of conciliation and arbitration, we had a term which was known to everybody as exactly indicating the subject as to which legislation took place.
– That is the case here.
– We have over and above the particular powers that are conferred, those powers of sovereignty which are inherent in every sovereign government.
– But that is not what we are dealing with.
– -I think it is. I paid to the honorable and learned senator the utmost attention when he was speaking, and I must ask him to reciprocate that courtesy while I am addressing myself to this amendment.
– Surely I may ask a question.
– Certainly ; but I decline altogether to carry on a duet with any honorable senator.
– I have no desire to carry on a duet with the Minister, but I wish to ask a question when I think it necessary.
– The honorable and learned senator may have no such desire, but his actions seem to indicate something to the contrary. It has been objected to the short title of this- Bill that Eminent Domain is an expression that is not known to the municipal law of Great Britain. I venture to differ from Senator Symon in that respect. The expression has been known to the municipal law of Great Britain.
– Where? May I ask that?
– It has been referred to in the courts. The expression, as the honorable and learned senator has said, may have had its origin in connexion with international public law, but it is known to English .municipal law. The term itself is denned in the Law Lexicons. It is denned in the ordinary English dictionaries. It is not, therefore, a term ‘ that has purely emanated from America It is not a new fangled Yankee notion which had no existence until twenty-five or thirty years ago, and I venture to say that if the only criticism that could be levelled at the title was that it was an importation from Yankee land, that would be no demerit in itself. But I find in the Encyclopædia of the Lotus of England, a recent publication, a chapter under the heading of “ Eminent Domain “ (page 486)., where the term is defined. This work says -
The right of the State or the Sovereign to its or his own property is absolute, while that of the subject or citizen to his property is only paramount. The citizen holds li is property, subject always to the right of the Sovereign to take it for a public purpose. This right is called “ eminent domain.”
It goes on to say -
The exercise of this power by the State, whether directly or by delegation, is known in American law as the exercise of the right of “eminent domain,” which may therefore be defined . 15 the power of the State to take private properly for public use.
– Not merely land.
– Itincudes all property.
– Does this Bill include all property?
– It does not.
– That does not matter, of course !
– When you give a title to aBill, it does not necessarily indicate that everything under that heading is included in the legislative provisions of the Bill. The work which I hold in my hand is an encyclopaedia of the laws of England, not an encyclopaedia of the laws of America and it devotes something like a page and a half to a description of the term “Eminent Domain.”
– The honorable senator just read that the term was first used in American law.
– The book mentions, as a matter of historical fact, that the exercise of this power is known in American law as “ Eminent Domain.”
– It is not known in English law.
– It is known in English law.
– It is certainly a recognised term in English law.
– In Wharton’s Law Lexicon the term is thus defined: -
Eminent Domain, the right which a government retains over the estates of individuals to resumethem for public use.
– Is that an American publication ?
– No; it is a wellknown English book published by Stevens and Sons.
– And also covering Crown land.
– I am not denying that for a moment. In the OxfordNew English Dictionary a reference is made to “ Eminent Domain “ -
Ultimate or supreme lordship; the superiority or lordship of the sovereign power overall the property in the State, in accordance with which it is entitled to appropriate by constitutional methods any part required for the public advantage, compensation being given to the owner.
Then it goes on to say -
A term chiefly used in International Law, and the law of the . United States of America.
It does not say that the term is confined exclusively to the United States, nor is it confined exclusively to international law. This in an authoritative English dictionary, in which the term is first defined as the right of a sovereign or of a State to resume the property of an individual for public purposes, due compensation being given. In an American law dictionary which I have here the term is described at greater length. On page 658 of Bouvier’s Encyclopedia of the Law -or law dictionary - under the heading of “ Eminent Domain,” it is stated -
The phrase “ eminent domain “ appears to have originated with Grotius.
– He was not a Roman.
– I am aware of that. He was an eminent jurist of about theseventeenth century.
The power is a universal one, and as old as political society, and the American constitutions do not change its scope or nature, but simply embody it, as described by Grotius, in positive, fundamental law.
The power covered by this term is as old as political society, and the adoption and use of it in the United States does . not by any means make is solely American. It expresses the power that resides in every sovereign community - the right of the resumption of private property for public purposes, compensation being given to the person who is deprived of his private property rights.
– Besides, the Americans have no patent right in it.
– They have no patent right in it, and the fact that they have adopted it should not influence us in the direction of being scared at the novelty of the term, so far as Australia is concerned. It is advisable that we should have, wherever we can, a short title for our Bills, and’ we should also, if we conveniently can, have as a short title, wherever there is a corresponding subject in States legislation, one that will clearly indicate to those who will be the subject of both classes of legislation, the distinction between Commonwealth and State laws. The object is thattheymay know, when either class of legislation is being put into effect, whether it is State or Commonwealth legislation. For these reasons, I think that the title is one that I can fairly ask the Committee to let stand. I shall therefore ask honorable senators, if Senator Symon will not withdraw his amendment, to assist me in maintaining the title as it appears in the Bill. lt is a title that clearly expresses the class of power which the Commonwealth would be exercising. lt indicates that under the provisions of this measure the Commonwealth would be exercising its power for the purpose of acquiring land. It would te for public purposes that the Commonwealth as a sovereign power would be resuming property, and it would be resumed subject to that provision which is incident to the exercise of “Eminent Domain” - that is, according to the individual who is deprived of his property with adequate compensation.
– In our legislation we should, I think, always consider the interests of the public, and in a special decree the interests of persons who are likely to be affected. We have now to consider the case of a man who is the owner of land which is likely to be taken away from him by the Federal power. He has a right to be placed in a position in which he can find out the easiest possible manner under what conditions his land is to be taken away. I know that it is almost impossible to hope that, generally speaking, a layman will be able to understand the law w!hen he sees it.
– Or a lawyer either.
– Or a lawyer either sometimes ; but we should recognise, so far as we can, the right of a layman to know what his rights are under the law. A layman whose land is to be taken away by the Commonwealth will probably procure a copy of the Commonwealth Statutes. If he looks at the index he will find there, first of all, the heading, “ Property for Public Purposes Acquisition Act, 1901.” He will naturally assume that there he will find the law on the subject: nor will he ever suspect that that Act has been repealed1 ‘by another bearing the title “ Eminent Domain Act.”
– Does the honorable and learned senator suspect that he will not go to a lawyer first?
– I want to enable a man to find out what his rights are without going to a lawyer. He may perhaps eventually have to go ta a lawyer.
– No greater calamity could overcome him !
– It is by obscure measures repealing Acts that the reproach is enabled to be hurled against lawyers of making the law so difficult that it can only be understood by the profession. Where we have an Act dealing with a specific subject, we should, even in the title, indicate as nearly as possible what the purpose of the Act is.
– In the existing Act the English title is not adopted.
– We have in all the States Acts dealing with the resumption of land, and in every case in the short title there is something to show what is the subject-matter of the Act. The Minister in charge of the Bill has expressed the fear that the amendment would give rise to confusion as between the Commonwealth Statutes and the States Statutes on the subject. It must be remembered, however, that any person sufficiently interested to search the law on the subject would know that it was to be found in a Commonwealth Statute, seeing that a Federal power was to be exercised, and, therefore, I cannot see that any confusion could arise. Senator Symon* has made it abundantly clear that the short title of the Bill is not the most appropriate that could be selected. I support the amendment on the ground that our Statutes ought to be made as clear as possible to the public, especially those members of the public who are particularly affected. That end can best be attained by adopting a short title which clearly indicates the subject-matter of the Bill, and directs the attention of the public to the fact that the Act which was passed in 1901 has been repealed.
Senator Sir JOSIAH SYMON (South Australia) [11. 2]. - I do not know that, in an ordinary case of a short title, I should be disposed to say another word, but this matter is much more important than perhaps some honorable members imagine. It could not possibly be suggested that I submit this amendment with any intention to be troublesome; my sole object is the simplification of the Bill. I am in no way scared by the use of a term that bears an American mark. We have substantially, and certainly in principle, derived our Constitution from that of the United States; and I have r.o sort of a priori objection to any constitutional or municipal law phrase which may be brought from America, so long as it is applicable, and understandable of the people. The Honorary Minister has given no reason why we should not adopt the simple non-technical expression, “ Lands Acquisition Act,” as a short title. “ Eminent Domain “ is, in essence and on its face, a technical expression, and I am bound to say, without doing any injustice to their learning or knowledge, that there are scores of lawyers in Australia who, if they tumbled across the phrase in an index of Acts of Parliament, would have to refer to one of the many dictionaries consulted by the Minister, in order to ascertain what was meant.
– The lawyer might not know what to look for.
– That is so. If a lawyer were looking into the matter at the instance of a client, he would, after having ascertained the interpretation of “ Eminent Domain,” have to explain that the Act did not deal with the subject of Eminent Domain:, but simply with that part of it which relates to the acquisition of land. He would have to explain that the Act had nothing to do with that great part of the doctrine relating to the acquisition of all the property of an individual, if the necessities of the State demanded.
– In such a case, what becomes of the unfortunate’ layman.?
-Yes; what becomes of the unfortunate layman, for whom we are legislating? We are not legislating in order that, on the very threshold of the Act, the fortunate or unfortunate layman shall be sent to a lawyer. There e.re difficulties enough in the substance and the sections of Acts of Parliament, without making it necessary for a layman to consult a lawyer as to the very meaning of a title. The point raised by Senator Drake requires one word more of emphasis. Four years ago we passed an Act with the same object that it is desired to achieve by reason of this Bill. The present legislation is supposed to be an improvement, and, therefore, I ask, why should we change the short title? This Bill, when it gets on the statute-book, will be indexed under the heading of “ Eminent Domain,” and nobody will know that it is practically the same legislation, or has any relation to the legislation, passed some years ago. The argument of Senator Drake is irrefutable, if we are to take into consideration the interests of the community, and not put the Statutes in a state of inextricable confusion. As a lawyer, I do not need the honorable Minister to in struct me as to the original meaning of “ Eminent Domain.’ The meaning is the assertion of the theory or doctrine that the sovereign authority is entitled, in case of national necessity, to take the property of any individual, whatever that property may be. The doctrine was imported from another public law into America, because in that country there was no sovereign, and, therefore, no expression to meet the case. The expression is not used in any English Act that I am acquainted with, but, of course, the doctrine exists in practice in the old country and finds expression in the Land Clauses Consolidation Act. Our legislation on the subject goes further, and requires the word “acquisition,” so that the title of the present Act is correct.
– If the honorable senator thinks that we ought to adopt a recognised title well known to the public, why not take the English title?
– I say we ought to adopt a title which describes » the Bill, but we could not take the title of the English Act. Had Senator Best been here yesterday he would have heard me suggest that, instead of embodying in one Act the power of acquisition, plus machinery, it would be much better to have a Land Clauses Consolidation Act, which would provide the machinery only, leaving the acquisition to be accomplished by general or particular Acts.
– That is not the practice of any of the States.
– I am making no complaint on that score. The reason that we cannot use the title “Land Clauses Consolidation” or “Lands Compensation “ is because the Bill also gives the power of acquisition. The long title, therefore, is quite proper, because it indicates that the legislation gives the power of ‘acquisition, and also provides the machinery by which the acquisition shall be carried into effect. We must have a short title, to indicate, as far as possible, the substance of. the measure, and I suggest that, instead of going abroad for a technical phrase, we should use absolutely the simplest and most intelligible. In England the term “Eminent Domain” has never been adopted. In the States there is an expression more elaborate.
– “ Lands Compensation,” which covers acquisition.
– Then, 1 think that is quite enough ; and there is no need for an esoteric technical expression like “ Eminent Domain,” which, according to the authorities, is chiefly known in another law, and in America.
– I have listened to the arguments in regard to the title of the Bill, and have been endeavouring to summarize them. So far as I understand the position, this title has been suggested, in the first place, because no one knows its meaning, and, in the second place, because, if some industrious person endeavoured to ascertain the meaning he would besure to find that it was inapplicable, inasmuch as it embraces more than is embraced by the Bill. Further, it is clear that another reason why we are asked to. adopt the title of “Eminent Domain” is that when it had to be indexed, the index would be of no value to an ordinary person, who would never connect the phrase with the acquisition of land. If there were a fourth reason possible, it must be that if we do not use a title like this, no one will imagine it to be a Federal law instead of a State law. At any rate, these are the reasons which, I gather, are presented by Senator Keating for the use of the words “ Eminent Domain.” When I hear arguments for the adoption of a title so extraordinary, I think there must be a fault somewhere; and I shall vote against the use of the words “ Eminent Domain.”
– I hope the Committee, in view of the reasons advanced by Senator Drake, will decide to make an alteration in the title. No one who takes anintelest in public life can fail to notice that legislation is becoming more and more confusing to the people; and it is our bounden duty to make our Acts of Parliament, and other public documents, so clear that they shall speak for themselves. It ought to be possible for any one who desires to look up Commonwealth legislation on a particular subject, to place his finger at once on the right Act. If anybody should support such a policy, it is the lay senators opposite. Those who have hitherto spoken on the question are representatives of the law, who may be trusted to find their way in thedark; but, in the interests of people outside the legal profession, our legislation ought to be made as simple as language will permit.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority ……… 3
Question so resolved in the negative.
Clause agreed to.
Clauses 2, 3, and 4 agreed to.
Clause 5 (Definitions).
– Following the usual custom, I move -
That the clause be postponed.
It may be necessary, as a result of amendments made in the Bill, to consider new definitions.
– I have no objection to the Minister following the usual course in postponing this clause, but I see some difficulty in relation to the matter I brought under the notice of the Senate yesterday. I am not sure that an alteration in the definition of “ Crown land “ is not involved at this stage to meet the difficulty I have raised.
– I do not think the honorable senator will be prejudiced by the postponement of this clause.
– Of course the Minister does not think that anything will be prejudicial which will assist a proposition he puts before the Committee.
– The matter to which the honorable senator has referred can be brought up on clause 57.
– I do not think so. I do not think that it covers the persons to whom I have referred. I have mentioned the case of people who have become part purchasers, and yet have no title.
– When we get back to the definition clause again the matter can be brought up.
– It is possible that by that time I shall have lost all opportunity to make an amendment to meet the difficulty. Under the existing Act conditional purchasers in New South Wales and in the other States are regarded as the owners of the land, and if the Commonwealth thought fit to resume their land, they would have to be dealt with directly. But by the definition of “ Crown land “ in this Bill the Commonwealth, in acquiring land of this description, would not deal with the men who are the equitable owners and in occupation of the land, but with the State Government, and the unfortunate conditional selectors would be left to fight for whatever compensation they could get from their State Government. I know of no other part of this Bill in which it would be proper for me to debate this question, but I shall not object to the postponement of the definition clause if the Minister will indicate any other provision of the Bill on which the matter may be discussed, or, if he cannot do that, will give me an assurance that he will not oppose a recommittal, or the adoption of such other course as will enable the difficulty to be brought fairly before the Committee.
– I understand the difficulty which Senator Millen has put forward. In replying briefly yesterday on the second- reading debate, I indicated that I thought he need have very little apprehension on the subject, because, in my opinion, the definition of “ land “ taken in conjunction with the definition of “ Crown land “ will entirely overcome the difficulty. The definition of “ land “ includes any estate or interest in land, legal or equitable.
– Will the Minister say why it is proposed to differentiate with regard to private persons , and those holding land from a State?
– We do riot differentiate. When we come to deal with clause 57, the honorable senator will see that “ a part of any land comprised in a lease” does not necessarily refer to a lease from a private person. We give in this Bill a definition of “ Crown land “ first of all, and what we do desire to cover is land which is purely the subject, so to speak, of a promise on the part of a State to sell to a third person.
– The conditional purchase, is more than that, .because the conditional purchaser has an inchoate right.
– Has he not the deeds, or a lease?
– No; he has neither one nor the other. He has no parchment or document conferring a title.
– Senator. Millen will see that if a person has any estate or interest in the land, legal or equitable, he is deemed to be the owner of the land. That is provided for in our definition of “ land,” and that definition includes Crown land. I can assure the honorable senator that I realize .the importance of his observations, that I recognise that persons who have an interest of this character should be in a position to prosecute their own claims, and should not have to rely on the State to do so. I have not the slightest hesitation in saving that no obstacle whatever will be offered to prevent the matter being set right, if necessary, and any proposals which he may have to bring forward discussed on their merits, even though we should pass the other clauses of the Bill before dealing with the definition clause.
– I do not believe that these people have any equitable or legal right, and that is the trouble.
– If the Crown is in such relation with regard to a person in connexion with land, that that person has some promise or other to acquire it from the Crown, but ‘has no title whatever, and no estate or interest in it of any kind, legal or equitable - if, for instance, he is in the position purely of a. promisee, so to speak - we do not desire that the Commonwealth should have- to deal with him. But if he has anything at all which gives him a legal or equitable estate or interest in the land, he will be considered the owner of the land under this Bill, and will be entitled to make his claim directly for compensation as one of the persons affected by the proposed acquisition. Senator Millen will have an opportunity to discuss the matter when we eventually deal with the definition clause, and should it appear that any alteration or the insertion of another clause is necessary, no opposition will be offered to the question being dealt with on its merits. In asking for the postponement of the definition clause, I am but following the usual custom. It is possible that some amendment made in the Bill will involve the insertion of new definitions, and in the circumstances it is desirable that the definition clause should be considered after the other clauses have been dealt with. Honorable senators may be aware that it is the usual practice in Great Britain for definition clauses to appear after the other clauses of a Bill. Here we have adopted a contrary practice, but it has been our custom to postpone the definition clause until after the consideration 6f the other clauses.
Senator Sir JOSIAH SYMON (South Australia) [11.30]. - There are two points I hope to deal with on the definition clause. I pointed out yesterday the great desirability, as a matter of courtesy, thai there should be a. proper recognition of the position of the States, and that the compulsory taking of the Crown lands of a State should be dealt with by a separate Bill. There is no necessity to deal wilh both subjects in the same Bill. I pointed out the desirability, out of courtesy to the status of the sovereign States of passing a separate Bill, and said that I intended to move an amendment upon the second definition in the clause. I do not wish to raise difficulties in the way of postponing the clause if that opportunity will be open sufficiently at a later stage. Here it would come conveniently, because if the definition of “Crown lands.” were eliminated it would indicate that the Senate desired that the provisions with regard to the compul- sory taking of Crown land from a State should be dealt with by a separate Bill, and that a nicer method if possible should be adopted, than that of merely putting a notification in the Gazette, and stating that such notification should take the land away from the State, and vest it in the Commonwealth. There is another point which arises out of the definitions of “ land” and “ owner,”- which terms include a State. We now have an excellent opportunity qf deal- ing with that subject, but if the Minister will indicate that it may be sufficiently done elsewhere, then, of course, I shall offer no objection to the postponement of the clause. Then with regard to tho definition of “public purpose” he intimated yesterday, as we all expected, that it is not intended that the provisions of this measure should a D p 1 v to the land for the Federal Capital Site. I propose to make that quite clear by inserting an exception in the definition of “ public purpose.” Mv honorable friend knows that I entirely accept his assurance, but an assurance is not an Act of Parliament.
– I do not think it will be necessary.
– If my honorable friend will indicate that that may be done at some later stage, I shall be content. First of all, he gives us an assurance that there is no such intention, and then he thinks that under the powers of the Bill it might not be done, but as I pointed out yesterday in the clause with regard to compensation, the significant words “ subject to the Constitution.” are introduced. That is to say, a State cannot get any compensation for land which it has to part with for nothing, and the only lands which a State has to part with for nothing are those which may be taken for the purpose of the Federal Capital. I should like these points to be disposed of as early as possible. If my honorable friend will indicate where they may be conveniently raised, I shall offer no objection to the postponement of this clause.
– If Senator Symondesires to separate the provisions empowering the Commonwealth to acquire the Crown lands of a State from the machinery clauses, the best place for him to test the question will be on this definition clause, because I think that afterwards, in _ making provision for compulsory purchase, we enable the Commonwealth to acquire, in a certain way, the lands of an owner, and according to the definition the word “owner” includes a State. The three definitions to which the honorable senator has referred would have to be altered in order to enable the Crown land of a State to be dealt with differently from the mode proposed by the Bill. I refer to the definitions of “Crown land,” “land,” and “owner.” My honorable friend has again referred to the possible acquisition, under the terms of this measure, of land in New South Wales for the purpose of a Federal Capital. Yesterday I said that, as far as I knew, it was never intended to use its provisions for that purpose. I explained then that 1 used the qualification “ as far as I know,” because it was not until about a minute before that that the idea was ever suggested to me, and that was by an honorable senator who was engaged at the table in making some notes. But, upon looking through the Bill, I do not think that itcould very well be used for that purpose. My recollection, when the point was raised yesterday, was that it was raised in connexion with the Bill of 1901.
– We omitted a clause so as to make it clear that it would not so apply.
– I am not quite clear as to whether anything of that kind was done ; but I know that Senator O’Connor, the then Vice-President of the Executive Council, intimated that it was not intended to use the provisions of the Bill for the purpose of acquiring land for the Federal Capital, and I said that, “ as far as I knew,” that had been the continuous policy, of every Government. I am in a position now to withdraw even the qualification “ as far as I know,” and to give a most unqualified assurance on ‘the part of the Government that there is not the remotest idea of applying the provisions of the Bill to the acquisition of land for the purpose of the Federal Capital.
– That is all right, so far as the present Government is concerned.
– I invite the attention of Senator Symon to clauses 17 and 21 of the Bill. The former clause says -
Upon the publication of the notification in the Gazette the land described therein shall, by force of this Act -
be vested in the Commonwealth ; and
be freed and discharged from all trust obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.
The object of the Bill is to enable the Commonwealth to acquire the legal estate in lands.
– It will have the legal estate in the Federal Capital Site in any case.
– In clause 21, the Bill provides for the registration of the notification. In other words, we shall hold the legal estate in the lands in the State, our titles will be registered in the State, and we shall hold them like any other holdler of lands in the State.
– That is doubtful.
– It is the acquisition of Crown land. It will becomeCrown land of the Commonwealth.
– Exactly, but according to clause 21, we shall registerour title in the State.
– That does. not matter.
– But it will become Crown, land.
– Quite so.
– And subject to the law of the State.
– That is not theway in which we shall hold the Federal territory. During the postponement of the clause, Senator Symonmay give his consideration to this feature of the Bill, that it simply provides for acquiringthe legal estate in the land in a State, the title of the Commonwealth to which will be registered subject to the laws of the State in the records of the State. But. as regards the land acquired for the Federal Capital, that will be the territory of the Commonwealth, and independent of any jurisdiction as to registration, or anything of the kind, in the State. I am only drawing attention to this matter for the benefit of those who think that the Bill might be utilized for such a purpose. I give them an assurance that it is not intendedby this Government, and never was intended, I believe, by any Government, to use the law for such a purpose ;that, on the other hand, it is intendedto acquire the legal estate in the land as contradistinguished from the acquisition of Federal territory.
– But any Act which we may pass will not revoke the provision inthe Constitution..
– Certainly not.. We shall have to pass a separate Act toacquire the Federal territory.
– If it is desired tomake it absolutely clear, we could insert two or three words, saying that nothing in this Act shall be construed to mean soandso.
Senator Sir JOSIAH SYMON (South Australia) [11.40].- I knew quite well that when the Minister of Defence applied hismind to the subject the difficultywould be solved at once. “ If you put in two or three words,” he says, “that will makeit clear, and will absolve the Government from a promise.” No Ministry likesto give an assurance which, when they happen to go out of office, as they all must do some day or other, may not be honoured. Senator Keating knows that in the case of the Federal Capital’ Site, not merely Crown land, but also private land, will have to be acquired. Whatever may be the case with Crown lands, there is no differentiation if private lands are required for that purpose. Of course, the legal estate will be vested in the Commonwealth, and the registration will be absolutely the same as if it were a private owner. The only difference will be that it will exercise sovereignty over the whole of the area, and the private lands will then become Crown lands of the Commonwealth. I do not think that that would remove the difficulty. The right solution is that which the Minister of Defence has offered to us, and which. I hope we shall all accept. As regards the definition of “ Crown land,” Senator Keating says that it may be best dealt with on the definition clause. As he thinks that ir will hi more convenient to deal with that clause later on, I shall «ot oppose its postponement, because, although it may slightly embarrass us in dealing with,. the machinery owing to the definition of owner to which he has called attention, we still can come back to the clause, and give effect to our view of separating the provisions with regard to States.
Motion agreed to; clause postponed.
Clause 6 - .
The Governor of a State, acting with the advice of the Executive Council thereof, may (by force of this Act and nowithstanding anything to the contrary in the law of any State) -sell or lease to the Commonwealth any Crown land of the State which is required for any public, purpose, and execute any instrument or assurance for the purpose of granting, conveying, or leasing the land to the Commonwealth.
Senator Sir JOSIAH SYMON (South Australia) [11.44]. - In my second-reading speech I offered some observations with regard to this clause. The provision, as it -stands in the existing Act, is-
– In sections 3 and 5.
– No ; section 3 gives power to the GovernorGeneral to acquire.
– And section 5 deals with the Governor of any State.
– The honorable senator will find that section 3 is subdivided and reproduced in clause 15 of the Bill, while clause 6 is a reproduction of section 5, which reads as follows: -
In the case of any Crown land of any State purchased under this Act, the Governor of the State may grant such land in the name of the King to the Commonwealth.
That is the simple power given to the Governor of a State by virtue of the Act, to sign the document. That, of course, is purely a, Ministerial act. In this Bill a very grave departure has been made. There is no comparison between the clause and the section, although the marginal note of the clause refers to section 5. Under this provision there is a distinct interference with the self-governing powers of the State. It relates, as was said yesterday in the course of the discussion, to’ the selling of land privately - that is, not to taking it by compulsion. It declares that the Governor of a State may sell or lease to the Commonwealth any Crown land - by force of this Act, and notwithstanding anything to the contrary in the law of any State.
That is to say, suppose a State Parliament had passed an Act forbidding the alienation of any particular piece of land, the Executive, owing no responsibility to the Commonwealth, owing responsibility only to its own Parliament and its own electors, would be entitled to set the State Act at defiance, and enter into an agreement to sell that land to the - Commonwealth. I say, first of all, that, if anything of that sort is to be done, it must be done by the Executive of the State under its responsibility to its own Parliament and its own people. If land subject to an Act of Parliament of that kind is required by the Commonwealth, the Commonwealth can, of course, obtain it by compulsory taking under the subsequent provisions of this Bill. But it is not necessary that the Commonwealth should insert a provision enabling the State Government to set the State laws at defiance. The point is that this provision takes away the responsibility of a. State Government to its Parliament, by enabling the State Executive voluntarily to do something in defiance of an Act of its own Parliament-‘ under the authority of a Commonwealth Statute. I venture to think that no State would willingly submit to the Commonwealth Parliament imposing upon the Executive of the State duties of this kind, and taking away its responsibility to carry out the State laws. The Commonwealth power under the right of Eminent Domain, or sovereignty, may take the lands of a State, no matter for what purpose thev have been dedicated, or reserved, or restricted bv the operation of a State Act. But the Commonwealth Parliament has no right to take away from the States Parliaments their control over their own Executives, and to relieve them from the duty of consulting their own Parliaments on the subject. Honorable senators have only to read the clause to see how far-reaching it is. I do not know why it should have been put -in this shape, and why the old section should have been changed/if the object was merely to enable the Governor of a State to do a Ministerial act by signing a grant without an agreement having been entered into. Of. course, a State Executive can <enter into an agreement voluntarily, but subject to its responsibility to its Parliament. But if this clause were passed, its action would not be subject to its responsibility to Parliament at all, because here it is said that, notwithstanding anything in the law of any State, the Government of a State may sell, lease, or grant land to the Commonwealth. If the Commonwealth is not to interfere with the self-governing powers of the States, it would be better to restore the clause to the form in which this provision stands in the existing Act, enabling the Governor of a State to execute the grant ; or else it would be advisable to strike it out altogether, because the mode of executing a grant, or by whom it is to be executed, depends upon the local law. I doubt whether we ‘have power to direct the Governor of a State, or to empower him to execute a grant. That, however, is a more or less harmless point. The real point is that we do not want to see an interference with a State power, or to lessen the responsibility of a State Executive to its own Parliament by a Commonwealth law, unless it is absolutely essential.
.- I have had an opportunity, whilst Senator Symon has been speaking, to look up the existing law and the proposed alteration, and I must confess that I do not think that the new clause, as to its legal effect, takes us any further than the old section did. I read together sections 3 and 5 of the existing Act. Section 3 provides that -
The Governor-General may agree with the owners of any land which is required for any public purpose, and with any State where such land is Crown land of the State, for the absolute purchase by the Commonwealth for a consideration in money or its equivalent of such land, or for the exchange of such land for any land of the Commonwealth.
Then, in order to carry out that provision, section 5 is supplementary-, and says that the Governor of a State may execute the necessary documents for the purpose. It is a matter of fact that if there is an agreement between the Governor-General representing the Commonwealth and the Governor of a State to acquire any State land, essentially the Governor must resort to the local laws for the purpose of enabling him to carry out that bargain. It is a bargain on the part of the. Commonwealth, on the one hand, to purchase land belonging to the State, and it is recognised that that property must be dealt with in accordance with the law of the State. Consequently my first view is that I do not think it is necessary that there should be any alteration whatever. But if an alteration is proposed, I am1 certainly disposed to agree with my honorable friend, Senator Symon, that this clause is put in a rather unfortunate form - it may be unintentionally. It does seem to me to be very extraordinary that we in the Common wealth should set towork to legislate as to what the Governor of -a State shall do. It is unusual, and it is especially unnecessary in the case of a matter of mutual agreement. I suggest that there is an abstract principle involved! which may result in some friction.. It may be resented bv the States that we as a Commonwealth should say in- this clause that the Governor of a State, acting with the advice of the Executive Council thereof,, may do so and so.. The States may say,. “ Thank you for nothing; we do not want you to authorize our Governors what to doand what not to do.” We did not attempt to put it in that form in the old Act. We did not pretend to say what the Governor of a State might do: We did- not pretend’ to give novel powers. The last case of thekind was the Meteorological Bill, which’ was before us a little while ago. In that Bill there was inserted a clause enabling the Governor-General and the Governor of a State to come to a certain agreement. We did not attempt to say in the forefront of .the measure that the Governor of a State might do so and so. We enabled the GovernorGeneral to enter into an arrangement with the Governor of a State, relying uponlocal powers and abilities for the purposes of carrying out that agreement. In the existing law it is put very plainly that the Governor- General may agree with the owners and with any State where the land to be acquired is the Crown land of a State. In the existing law t’he State is specifically mentioned; Certainly, even in the existing law, section 5 was not necessary, because when it says: that the Governor-General may enter into an agreement with respect to the purchase of Crown lands with a State, the Governor of a State has the power to enable him to carry that out. Therefore, seeing that the Government can achieve the same object in a manner involving less friction, and can enable the Governor-General to enter into agreements, relying, upon the local power which must necessarily exist, I would ask my honorable friend, Senator Keating, to consider whether he cannot recast the clause, in order that we may follow precedents, and avoid any possibility of friction and resentment on the part of the States.
– I wish to point out what I think is a very curious matter in connexion with this clause, and one that is especially worthy of consideration in a legislative body like the Senate. It is in one respect an ordinary provision, which would appear in any Land Resumption Act of a State, dealing with the transfer of any property acquired by such a State from any private individual in it. But the position which we are confronted with is verv different. We have to consider, not merely the means by which the Commonwealth can acquire the land that is at present the property of private persons : but also the means whereby the Commonwealth shall acquire the land of a State. Such a case cannot exist in any ordinary State law. The persons at issue there are simply the State itself and private individuals. Here there is a very different issue. In my opinion, it is extremely desirable that the provisions for acquiring lands for the Commonwealth from private individuals and from States should be kept separate. We ought to have two Bills, one dealing with the acquisition of property from private persons, and the other with the acquisition of property from the States. Of course, it might be possible, bv a different arrangement of the Bill, to disentangle the two matters, so as to make the distinction perfectly obvious to any one interested, whether he be a member of a. State Ministry, a member of a State Parliament, or a private citizen, and, to show clearly how each class of land is dealt with. As it is, we have only to look at the definition clause to see how hopelessly the two matters ar.e confused. The simple definition of the word “owner” is quite sufficient to indicate what I mean ; we are told that “ owner “ applies equally to a private citizen and to a’ State.’ I do not say that it is necessary as a matter of courtesy, but it is certainly desirable to embody in a separate measure the provisions we are proposing to put into law wilh reference to the compulsory purchase of State lands. I wonder that the point has not previously occurred to the Minister in charge of the Bill ; but it does occur to me that the States might properly demand, as they really deserve, that consideration. I do not think it is fair to treat the States with no more consideration than is extended to private citizens.
– I think the States prefer the course adopted in the Bill.
– I am afraid that in order to meet Senator Clemons’ views the Bill would have to be re-drafted.
– And I seriously think that the Bill ought to be re-drafted. I am not opposed to the provisions which deal with the acquisition of State lands ; but it would be very much better to have these provisions, if not in a separate Bill, at any rate in a separate part of the Bill. Such a recognition is due to the States themselves; and I shall make some effort to have the Bill amended in the direction indicated. In the meantime I submit the suggestion as one well worth the consideration of the Government.
– Why differentiate between, a public owner and a private owner of land? One requires as much protection as the other ; indeed, the private owner requires more protection than does the State.
– Does Senator Playford regard that as an adequate answer? Does the honorable senator say that a federated State in such a matter as the compulsory acquisition of lands, is entitled to no further consideration than is an ordinary individual ? Such transactions imply a certain amount of collision of sovereign authorities - the assertion, at any rate, of the higher right of the Commonwealth as against the powers of the State. I do not care to use the word ‘‘sovereign,” which- is often misleading; but what I .have stated is the position. It may not be much for a single State to assert a similar authority -in the case of an individual; but when the Commonwealth proposes to compulsorily take land from one of the federated States, surely Senator Playford can see-.- -
– In this connexion, I see no distinction between the State and the private individual. The latter is entitled to just as much care and consideration as is a State.
– If Senator Playford likes to make a public profession of such views, I am sure I shall not attempt to convert him. I must say, however, that I am astonished that a member of the Senate should so express himself.
– I do not think the States desire to be treated any differently fromtheir own subjects. Why should they?
– That is an extraordinary statement to make. If there is any remnant of the view once held that the Senate should represent the States, it is marvellous to hear it stated that the States are deserving of no more consideration than are private individuals.
– I do not believe the States want more consideration.
– I shall leave the honorable senator with that statement. I have no desire to mutilate the Bill, but I shall endeavour to have separated the provisions dealing with the acquisition of land from States, and the acquisition of land from ordinary citizens.
.- Clause 6, I understand, deals exclusively with Crown ‘land; and surely it is not intended that the Federal Government shall force a State into a bargain against its own wish.
– That is just what we aretrying to avoid by this clause.
– But surely it would be more courteous to differently frame the clause, the language of which appears very harsh, as affecting State lands. The Federal Parliament has nothing to do with the control, and so forth, of the lands of the various States, though, of course, there is power, with the consent of the States, to take land for certain purposes. It appears to me as if, in this clause, it was proposed to override the States, seeing that we have the words “ notwithstanding anything to the contrary in the law of any State.” I do not know whether legal senators regard the matter as I do; but it strikes me asbeing rather objectionable language to use when we are dealing with the lands of a State.
– It is a slap in the face.
– These negotiations can only be conducted by means of communications between a State and the Commonwealth ; and the State is not compelled against its wish to sell land to the Federal Government, even in the case of the Capital Site.
.- I hope that the Honorary Minister, when he replies, will let us know whether it . is intendedby this clause to go further than does the present Act, or, in other words, to effect any new purpose, or give any power cot conferred in the present Act. We desire to know whether the Bill simply puts the powers of the original Act in a different form, or whether a change has been made. The more I study it. the more strongly I feel that this is a case in which it would have been better to have had an amending, instead of a repealing measure. On the surface, the number of alterations appear to be comparatively few, though they may be very important, for all I know. In any case, it would have been better to have had an amending Bill, so as to show exactly the alterations that are proposed. As I read clause 6, it simply provides for the acquisition of land which the Commonwealth, under the Act, has power to compulsorily resume with compensation. If that be so, the power seems to be the same as that conferred by the original Act ; but I agree withthe honorable senators who have preceded me, that the clause is most unfortunately drawn. If it be intended that the power shall be exercised in the way indicated, the intention could have been expressed in a much more agreeable manner. At present the clause has all the appearance of instructing the Executive of a State as to its duties.
– The simplest way to overcome any reservation there may be in a local grant would be to declare that the land shall thereupon become Crown land… and belong to the Commonwealth.
– That is done in anotherpart of the Bill: and where, therefore, is the necessity! for clause 6 in its present form, which, as I say. appears to instruct the Executive of a State as to the State’s powers over lands ? I think that thephraseologyoftheActof1901was much better. That Act confers on the Governor-General - which means ourselves -the Dower to enter into negotiations, and make a bargain with a State, and pro- vides that if terms cannot be arranged, the Commonwealth shall have power to compulsorily resume.
– I have listened with much interest to the arguments of honorable senators. I should like to point out that the very object of the clause is to make the relations between the Commonwealth and the States in these transactions more harmonious. Under the present law of the Commonwealth, if it requires Crown land, it can acquire those lands by agreement or compulsorily. In every instance, hitherto, in which the Commonwealth has acquired Crown land for public purposes, the State concerned has been approached with a view to negotiation. When approached in this way the State points out that, while the Commonwealth Act empowers the Governor of a State to grant land in the name of the King, the State law requires that he shall do so subject to certain reservations and conditions. For instance, one condition that is attached to grants in Western Australia is that, within twenty-one years from the issue of the grant, the State may resume, without compensation, for certain specified public purposes, if no improvements shall have been made on the land. In one particular instance, a deed from one of the States purported to grant land to the Commonwealth, subject to the reservation that the State itself could, within twenty-one years, under certain circumstances, resume the land as against the Commonwealth. To such a condition the Commonwealth, of course, objected, and it then appeared that the State had no desire to have that condition imposed, but that the condition was compulsory under tlie State law.
– That must have been a special case.
– Not at all. I could give quite a number of instances. In >Jew South Wales, in nearly every instance, the Commonwealth has been forced to exercise its compulsory powers ; and why ? Because, while the law of New South Wales empowers the State Governor to grant the land, the. State law requires that there shall first of all be selection or an auction. The Commonwealth, under such circumstances, is asked whether it is willing to have the land subjected to auction, and, of course, a negative reply is given. Thereupon, the State, which does not desire to with hold the land, expresses willingness to let it be transferred by the more speedy process of compulsory purchase. It is said by Senator Symon that this defect is overcome by clause 17, but that clause applies only to acquisition by compulsory process.
– We are in ‘the position in New South Wales that if the Commonwealth desires even only half an acre for public purposes, it has to be acquired compulsorily.
– A notification in the Gazette settles the matter.
– It is only necessary to introduce the Gazette notice into this particular clause to effect the purpose desired.
– This clause is to make it absolutely certain that the Governor of a State, when exercising the powers conferred upon him, exercises them directly on the authority of Commonwealth law.
– I will not ask the question if it will embarrass the Minister, but does he not think that the Commonwealth has no power whatever to repeal a State Act of Parliament, which imposes restrictions on land. It may take land compulsorily, but it has no power to repeal a local Act.
– We do not propose to repeal local Acts. As I pointed out on the second reading of the Bill, in connexion with this clause, we rest the authority of the Governor of a State when dealing with the Commonwealth in these matters entirely upon our legislation. This legislation is within our sphere. It is in the exercise of one of the powers conferred upon us by the Constitution. When legislation within our jurisdiction is repugnant to any local legislation upon the same matter, to the extent of the repugnancy ‘and to that extent on lv the local legislation is avoided. That is all that is required. It is required to avoid any local legislation that would interfere with the interests of the Commonwealth, and only to that extent. This is not proposed out of any spirit of hostility to the States. The whole object is to enable the acquisition of land from the States to be carried out by negotiation rather than by the compulsory process. I am probably correct in saying that all the advisers of the Federal Government are of opinion that the law as it stands at present enables the Governor of a State to transfer property without any reservations which a State law might impose. But there has been a doubt raised in the minds of the advisers of some, at least, of the Governments of the States. They are not indisposed to give the lands we require, but they say “To set the matter beyond all doubt, you had better exercise your compulsory power,” and in New South Wales to this day we have been exercising our compulsory powers of acquisition. Is it not much more desirable that we should acquire State lands by negotiation wherever possible, and should resort to compulsion only in cases where we have vainly exhausted all the possibilities of negotiation? The amendment of section 5 of the existing Act here proposed is to set aside any doubt as to the authority of a Governor of a State, and to meet the views of those States in which such a doubt has been raised.
SenatorFraser. - Have they agreed to it?
– I do not know that they have agreed to the clause itself, but I understand that all that they require is an amendment of the section in respect to which some doubts were raised as to the authority of the Governor of a State. Honorable senators must see that the whole object of the clause is to enable negotiations between the State and the Commonwealth to proceed. So far from being anything like an aggravation or interference with the States, the object is to substitute negotiation for compulsory acquisition. If we use our compulsory powers we may, of course, acquire any property we desire. Our relations with the States so far have been harmonious, but who knows that hereafter it may not be said in some of the States that whenever the Commonwealth acquired property from those States it always resorted to the compulsory method, although it had an alternative to negotiate ?
– Is not clause 6 permissive ?
– I was going to show that. Senator Symon says that this clause relieves a State Executive from responsibility to the State Parliament. To what extent ? To this extent, that the Executive is enabled to say to the State Parliament. “We have done a legal act.”
– I think it would be an illegal act.
– The policy of the action would bea matter for the State Executive to consider. We do not throw any obligation upon a State Executive to assent in every instance. We simply empower a State Governor with the advice of his Executive Council to do this directly under the authority of our law.
– What right have we to empower him ?
– We have the right.
– We have the right to confer upon a State Governor the power to set aside a State law ?
– Undoubtedly, we have the power to acquire State lands for public purposes of the Commonwealth. We hare already done what Senator Symon says we have no right to do, and the honorable and learned senator took a part in the first session of the Parliament in providing for that.
– If we did it it was wrong, but I do notthink that we did do it.
– The extent to which we have conferred the power is the only point that has been raised.
– Senator Best has pointed out that we did not do that at all. What we did was to empower the Governor-General to enter into negotiations, and when they were completed to empower the Governor of the State to consent to the grant.
– We have saidthat the Governor of the State may grant such land, and that is all that we say now. Wesay that he may do so by force of this measure, notwithstanding anything to the contrary contained in a State law.
– We say in this clause that the Governor of a State maysell or lease, notwithstanding any local law to the contrary.
– Quite so.
– I say that we cannot do it, and that no State ought to submit to it.
– I am very sorry to hear the honorable and learned senator suggest in this Chamber that any State should take up such an attitude.
– Certainly I do, because this is a most unfederal provision.
– I do not think thatany State is not desirous of working harmoniously with the Commonwealth.
– It is the Commonwealth Government that is not desirous of working harmoniously with the States.
– The Commonwealth has shown no disposition to work inharmoniously with any State. The object of this clause, as I have said before, is to secure negotiation as the first step in dealing with a State, and that we shall not be put in the position in which we are at present, of having to resort to our compulsory powers in every instance in which we desire to acquire land not subject to such reservations as those to which I have referred.
– Could we not provide for an agreement in the notification in the Gazette ?
– That is practically the. procedure which we are following at present.
– Why not leave it at that?
– The State authorities say to us, “We cannot give you this land without the right to resume it within twenty-one years.” We say, “ We cannot take the land fromyou and give you the right to resume.” They reply, “ We have no wish to impose that condition upon you, but the State law imposes that condition, and therefore you had better acquire the land compulsorily.” Why should the Commonwealth be driven to the constant practice of compulsorily acquiring land from a State when we can negotiate in the case of private individuals?
– Why could we not state in the notification that the land is acquired by agreement?
– Even then we should be adding one step to the process of acquisition, and, so far as the Commonwealth is concerned, we should be also placing ourselves in a position that would very likely hereafter be seriously misunderstood. Because it might be said, in the case of some State, that inevery instance every inch of ground acquired from the State had been acquired by compulsory purchase. Who could dispute it? It might also be said that the Commonwealth had the alternative of negotiation. Honorable senators must see that the clause is aimed at what we all desire,namely, that in all these transactions the utmost harmony shall prevail between the Commonwealth and the State whose land is acquired.
– I listened yesterday very patiently to the objections raised by Senator Symon to this particular clause, and today I have listened patiently to all that has been said. But the very objection which has been raised to the clause constitutes the argument which should be used in favour of it. Honorable senators urge that, so far as we possibly can, we should approach the States in the most cordial way, and should do nothing in the direction of aggravating the States authorities; that we should never exercise the full powers of the Commonwealth, or of any Commonwealth Act, until we have exhausted every other means of arriving at the desired end. That is what Senator Symon has been saying for hours. Yet in this clause it is so evident that that is the intention of the Government that I am unable to understand why any honorable senator should oppose it. Senator Keating has said that in the past the Government have found that there are difficulties in negotiating with the States, and they have had to resort to compulsion. The honorable senator has given instances, which I could multiply, and honorable senators must see that they might easily be made more numerous in the future than they have been in the past. It would be possible in any State for a law to be passed that no land should be acquired by anybody except through some particular agent.
– That law would not hold good against the Commonwealth Act.
– It would not hold good against the existing Act. Has not the Minister told honorable senators that we can always fall back upon the compulsory system of purchase. Honorable senators, a few minutes ago, were trying to make us believe that they desired that the States should be treated in a conciliatory manner. That is what the Government are proposing to do. In this clause they say that, instead of exercising the power, which it is admitted we have, we desire to negotiate, and to acquire properties from the States in the most friendlymanner.
– That is not what theclause says.
– Most decidedly it is. It says that the Governor-General and the Governor of a State-
– It does not mention the Governor-General at all.
– That is so; but the honorable and learned senator knows that it is through the Governor-General that the acquisition is always made.
– This clause does not deal with the Governor-General.
– I am telling the honorable and learned senator what the method is. This clause gives the Governor of a State, with the consent of the Executive Council of that State, the power, when dealing with the Commonwealth, through the Governor-General, or anybody else, to transfer land to the Commonwealth.
– No; to sell it. To repeal a local Act of Parliament.
– It says, “ Notwithstanding anything to the contrary in the law of any State”; but it is to get over that difficulty that this clause is inserted. If the Executive of a State has the slightest objection to override any State law, they have only to say to the Commonwealth, ‘“We will not do it,” or, “We cannot do it; you will have to exercise the powers you have, and take the land compulsorily.” Then honorable senators opposite get up and talk about the difference between’ a private individual and a State in this matter. I cannot imagine any difference. Is it not as great a crime to do an injustice to an individual as to a number :of individuals ? If we do an injustice to a State, we do injustice to a number of individuals ; and if we do an injustice to a land-owner, it is just as criminal as if we did it to a State. If we acquire land from an individual, we have at the same time to acquire the rights of the State in respect of that land. That is the only difference, and honorable senators have entirely overlooked it. Where the Commonwealth acquires land from an individual, with that acquisition should go all the rights which the State has thereto. But in this clause we are simply asked to enact that where any law of a State prevents the State, in a technical sense, from negotiating with the Commonwealth, if the Governor, through the Executive, is prepared to enter into negotiations with the Commonwealth for the transfer of the land, the Commonwealth is prepared to do so in the way which may be most agreeable to the people of the State. But honorable senators on the other side say “No; you must fall back upon your absolute right of compulsory purchase. We shall not give you the opportunity through the Governor of a State to acquire land for the Commonwealth.” As Senator Keating; has said, in years to come the authorities in a State may say - “ That is the way in which we have been treated. Every piece of land which has been acquired by the Commonwealth has been forcibly taken from us; we have never been allowed an opportunity. to negotiate.” Who is preventing that from being done? It is only honorable senators on the other side who are seeking to place an obstacle in the way of the Commonwealth doing what they argue ought to be done. I hope that they will read the clause, endeavour to understand what is really meant by it, and believe that,, instead of doing an injustice to any State, it is only providing a means whereby the most harmonious relations may exist between the States and the Commonwealth.
.- It would have been most useful if Senator McGregor- had first fortified himself with an idea of the contention from this side.
– I heard it.
– Nobody has suggested for a moment, either directly or indirectly, that in the future it should become necessary to compulsorily resume any land from a State. If such a practice has, for the purposes which have been mentioned, been resorted to in the past, now is the time to put an end to any difficulty which has existed. Clause 6 of the Bill’ says in specific terms that the Governor of a State, acting, on the advice of the Executive thereof, may do certain things. It has been urged that it is unfortunately framed, and that, in order to achieve the same end, in a previous Act we said that the GovernorGeneral might negotiate with the State to do certain things, in this case, to purchase land. In these circumstances, it will be seen that we have not taken upon ourselves the apparently unfair position of prescribing what the Governor of a State should do. On the contrary, we have provided, as we did recently in the Meteorological Bill, that the Governor-General might enter into an arrangement with the Governor of a State, and the State laws have always been sufficient to enable the Governor of a State to carry out any such agreement.
– Honorable senators have been told that, under existing circumstances, they are not sufficient.
– That is what the Minister has suggested. I want him to realize the serious principle involved in passing the clause in this shape. Of course he will have the right to give us the justification for this departure, but I submit that the seasons which he has already advanced are totally inadequate. If everything which is sought for can be achieved in a. nice -way, instead of introducing the unfortunate principle to which I have referred, what is the objection to recasting this clause for that purpose? The Minister has said, “Yes, that would be all very well; but then we have to bear in mind that in some instances the Governor of the State has only the right to make grants subject to certain reservations.”
– Subject to Crown Lands Acts.
– Subject to the local laws. That would be very sound if we had no means of overcoming the difficulty. I contend that the. provision in the Constitution Act which says that the Commonwealth may acquire property practical]])’ means; that we may acquire the absolute
Tight to property free from every reservation. In this Bill it is recognised that that is the real and true construction, because it provides that, in the case of a compulsory resumption - the notification shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the -notification.
No one in the Chamber doubts for a moment that we have the right to cancel all forms of reservations contained in any document in reference to any land compulsorily acquired. Now it is said that we want to provide for the acquisition of land by voluntary arrangement. The true method, I submit, is to enable the GovernorGeneral to acquire the land, and then to declare, as we have done, that when once the land is so acquired, the notification of the agreement in the Gazette - shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.
That would relieve the clause of the objectionable feature to which I have referred, and it would give us precisely every power which we desire to possess. And what is more, the Governor of a State, in entering into negotiations with the GovernorGeneral, would be aware that the moment he signed a grant to the Commonwealth, all dedication or reservation would be cancelled.
– That is a distinction without a difference.
– If it is a distinction without a difference, and it would have the effect of removing from the clause objectionable features, it should’ be accepted and the clause recast. But the honorable senator cannot seriously contend that there is no difference. I ask him : Is it not objectionable for this Parliament to declare what the Governor of a State shall do?
– Only what he may do.
– If we were driven to do that, it would be a different thing; but here is a mutual arrangement which is to be provided for. Let us follow the precedent which we established in dealing with these matters. Why should we unnecessarily create friction with any State by determining what shall be the duty of the Governor of a State ?
– Will it not be also necessary in each case to empower the GovernorGeneral and the Governor to negotiate?
– It is necessary that we should do as we have hitherto done, and that is, give the Governor-General the power to act. Section 3 of the present Act says -
The Governor-General may agree with the owners of any land which is required for any public purpose, and with any State where such land is Crown land of the State, for the absolute purchase by the Commonwealth for a consideration in money or its equivalent of such land, or for the exchange of “such land for any land of the Commonwealth.
All that we need to do is to add to that provision the following words : -
The notification of such agreement in the Gazette shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.
That would completely get rid of the objection which the Minister has urged. No one doubts that we can enact that provision. Why, then, should we unnecessarily create friction?
– We are not creating friction.
– My honorable friend must see that the clause, if enacted in its present form, would create friction. To begin with, why should we alter the phraseology of the existing provision? If it is defective, there is a way of amending the defect. If we prescribe what the power of the Governor of a State shall be, the provision may appear inoffensive in this Bill ; but there may be times when, if the precedent were followed, it would bear quite a different aspect, and lead to friction. I have proposed a reasonable and effective means whereby the difficulty suggested by the Minister could be overcome.
– The clause as it stands appears to me to be highly offensive to the States, and I have no hesitation in saying that it would be so regarded by New South Wales. I wish to draw attention to a remark made just now by Senator McGregor, because I think it will explain a little error into which he has fallen. He said that the. wording of the clause would enable some technical defects to be overcome. When it bestows upon the Governor of a State the power of making an arrangement with the Commonwealth contrary to the law of the State, it goes far beyond the mere correction of technical defects, and it is that to which I object. I hope that a very clear amendment will be made, so that what at present is very highly objectionable may be removed. I cannot understand the representative of any State seeking to pass a clause worded as this is. Although I have no doubt that it was drafted with very good intentions, still it is capable of very evil results.
Senator Sir JOSIAH SYMON (South Australia) [12.45]. - 1 thought that the Honorary Minister would, after what has fallen from Senator Best, indicate his acceptance of the amendment suggested. It seems to me to be one that would meet the case. The matter to which attention has been called certainly involves a very grave question of method, to put it upon its lowest ground. I hope that, after the lucid explanation of Senator Best, Senator McGregor will begin to have a glimmering of understanding as to what the clause means. He undertook, at the close of his animated but not very clear speech, to lecture honorable senators1 on this side of the Chamber as to their lack of understanding of the meaning of the clause.
– I complained of waste of time.
– The honorable senator wastes the time of the Senate with senseless interjections more than any other member of it. I always find that those who are in the habit of suggesting that others do not understand provisions are themselves wandering in a kind of Cimmerian darkness. I wish to enlighten Senator McGregor a little, because I believe that he is a man who is occasionally susceptible of instruction. I will point out what he has entirely overlooked - that in this Bill there is in the first place a power for the acquisition- of land by mutual agreement, and, in the second place, a power for the acquisition of land by compulsion. This provision is not intended to have any relation to the acquisition of land by compulsion. It has relation to the acquisition of land by agreement. The power of a person to dispose of land by agreement depends upon his ownership and interest in it; and if he is a person occupying an official position, like the Governor of a State, it depends upon the authority given to him by the Parliament of the State, and no one else. In a self -governing country the authority of the Governor is derived from the Parliament of the State. He has certain instructions from the Sovereign, who appoints him to his official position, but his power to deal with Crown lands is now, under the self-governing Constitutions which we possess, dependent upon the approval of Parliament. In relation to negotiations for the acquisition of land which may be entered into by the Commonwealth with a State. all that the Commonwealth can do is to empower its agent - using that term as applicable to the Governor-General - to do what we think he ought to do. If at present power to enter into an agreement to acquire State land, or land held by a State Government, is not vested in the Governor-General, we can confer that power by legislation. But we cannot confer that power upon the Governor of a State. The authority of the Governor of a State to deal with the land of the State depends upon the power the State Parliament gives to him. The Statehas its rights, just as the Commonwealth has its rights, and we have no power toinstruct the Governor-General to give directions to a State Governor. He must receive those instructions from the Parliament of the State to which he owes allegiance, subject to and in accordance with the allegiance that he owes to the Sovereignwho appoints him. The vice of this provision, as Senator Best has pointed out, is that it involves an assumption bv thi* Commonwealth of an authority to confer the power of selling and disposing of State lands upon the Governor of a State. I say emphatically that we do not possess that power, and cannot exercise it. We- have no right to do it. Further, if we could do it, I do not believe that we ought to do it. We have no right to dictate to the States Parliaments and Executives. And even if we had the power we ought not to exercise it in this particularly offensive manner. My honorable friend Senator McGregor has said that he does not see that it is offensive. He says that it is particularly harmonious. The particularly harmonious way in which we are acting is for the Commonwealth Parliament, without so much as a “by your leave” to the people of a State, to say to the Governor of a State that he is to enter into an agreement with the Commonwealth to part with the lands of the State in spite of the provisions of any local Act of Parliament.
– No; because the State Executive would take very good care not to act except under the authority of an Act of Parliament.
– I am talking of the legislation which we in a highhanded manner are seeking to pass for the purpose of pretending to give power to the Governor of a State to do something which only the State Legislature can authorize him to do. We can, by virtue of the law, say that, when we acquire land under the Constitution, all dedications and all reservations shall be wiped away, and that we require it in absolute unconditional fee-simple. But we cannot give a power to the Executive of a State to override the Acts of Parliament of a State in the way that we are asked to do. It is a silly thing to attempt. It is a contemptible thing for this Parliament to put upon the statutebook something which, if it is not effective, is useless.
– Would not the Executive of a State be morelikely to consider the wishes of a State than the wishes of the Commonwealth if those wishes were in conflict ?
– Hear, hear !
– We have been lectured from the stand-point of harmonius relations as to the necessity of coming to a mutual agreement. We are all at one as to that. There is nothing to prevent an agreement being entered into between the Commonwealth and the State. Senator Best’s proposal would absolutely provide for it. It is provided for in the existing law, in the section which Senator
Best read, which says that the GovernorGeneral may enter into an agreement with a State. But the power of the State to enter into that voluntary agreement depends upon its own law, which we cannot alter.
– The Executive of a State would not be likely to do anything against the wishes of that State.
– Why should we assume that we have the power to compel it to do so? I am here representing one of the States, and I say very emphatically that we ought to be extremely solicitous to adopt a form which will carry out our intention without creating offence. We are all agreed as to the desirableness of mutual arrangements. But it will be impossible to carry out those mutual arrangements if we have the impertinence to interfere with a State Parliament, by saying what power the State Governor shall have in selling State lands. If we could do that, it would be a very serious thing. I contend that we cannot. This clause has been inserted inconsiderately. There can be no question about that.
– It has been inserted after a good deal of consideration.
– The existing section is an admirable one. If it were thought desirable, dedication and reservation could be made to disappear in the manner proposed in the suggested amendment. I scarcely think that that is necessary : but whether it is necessary or not, we do not get over it by giving the Executive of a State under a Commonwealth Act of Parliament power to override its own State legislation.
Sitting suspended from 1 to 2 p.m.
– I beg to lay upon the table the following papers: -
Copies of plans in connexion with the reports on proposed sites for the Federal Capital in the Yass-Lake George district.
I do not propose that the plans be printed for circulation, but that they be hung up in convenient places in the corridors of the Senate. I understand that the expense of printing would be rather disproportionate to the advantages gained.
– By whom are the reports provided in the first place?
– I think they are provided by- the State of New South. Wales.
Senator PLAYFORD laid upon the table the following paper : -
Further memorandum on collection of digested cases of the United States Federal and State Courts relating to trusts, and a tabular digest of the United States anti-trust legislation.
Ordered to be printed.
– I move -
That the Bill be now read a second time.
I wish, at the outset, to state, what is already well known to honorable senators, that this Bill has received a considerable amount of attention in another place, where it passed without a division, so far as either the second reading or the third reading was concerned. The Bill deals with trusts, monopolies, and the practice of dumping. In the first place, I propose to say a few words in regard to trusts, and then to refer to similar legislation passed in other parts of the world, concluding with a few general observations. Trusts, combinations, and pools, when they become monopolies, which is always their object, can be carried on either to the advantage or to the disadvantage of the public. Honorable- senators who are well versed in ancient history know that there was once a philosopher of the name of Thales, who was told by the business men of the city of Athens that he was only a dreamer - a poor philosopher - and did not know anything about commerce. Thales, however, succeeded in making a “ corner “in olives, which at that time was a necessary and much-used food of the people; and the result was that he , got a monopoly which enabled him to sell at his own price, and make considerable gains. In this way he showed the business men that, although he was a. “ poor “ philosopher, he still possessed, at all events, some knowledge of the art of acquiring money by means of a monopoly. Then honorable senators who have a knowledge of Biblical history will remember the “ corner” in corn and other cereals which was established by Joseph in Egypt.
– Surely the Minister does not complain of the object of that “ corner “ ?
– The result of that “ corner “was that the people of Egypt lost their land, and practically their liberty. The” corner “ that Thales established only resulted in the “ fleecing “ of the public ; but the effects of the action of Joseph can be seen in Egypt even to the present day.
– That was a State monopoly, remember.
– It ultimately became a State monopoly, but that did not make the conditions any better for the poor people who were made slaves.
– There are honorable senators who desire the State to monopolize everything.
– I am afraid the Minister has not chosen a very happy illustration.
– It is a very proper illustration of the evils which can be accomplished by a monopoly, whether conducted by the State or by private persons. Even a State monopoly, which results eventually in the degradation of the people - in depriving the people of their lands and possessions, and practically making them slaves - is an evil ; and, as I have said, the effects of Joseph’s operations may be seen in Egypt to-day. At the outset, honorable senators very naturally askWhat is a trust? On that point I hold in my hand a paper, prepared at the instance of the Premier of New Zealand by Mr. Tregear, Secretary of Labour in that Colony.
– The Minister should not’ quote that paper ; Mr. Tregear is a Socialist !
– I do not care whether Mr. Tregear is or is not a Socialist ; I only quote his report so far as facts are concerned. Senator McGregor knows that we are all Socialists now.
– Plato was a Socialist.
– No doubt. I remember the late Marquis of Salisbury, at a dinner at which I was present in London, saying, “ We are all Socialists now,” although he was leader of the Conservative Party. If a man tells me that he is a Socialist I do not know what he means ; but I do know what a man means if he tells me that he is a Communist.
– What does the Minister think the Marquis of Salisbury meant?
– He meant what he said, that we are all Socialists - it is only a question of degree.
– I thought the Minister said he did not know what was meant.
– I do not know the extent to which Socialism may carry a man, but I know that we are all Socialists. Society is founded on Socialism; every law we pass is socialistic, and the most advanced Conservative or hide-bound Tory will admit that we must pass laws for the government of the people. But the laws are socialistic nevertheless, though some men go to extremes. One man may say that he is a Communist; I know what he means. Another may say that he is an Individualist ; I do not know what he means. But I am satisfied of this : that Individualism carried to extremes leads to Anarchy, and that Socialism carried to extremes leads to Communism.
– Does the Minister think that these remarks have anything to do with the Bill before us?
– I was replying to interjections, and I beg the pardon of honorable senators if I have been led astray. Mr. Tregear, in his report, deals with the definition of “ trusts,” and1 points out that the dictionaries differ in such a way as to make the explanation not very plain. For instance, “ trust “ is defined in the Standard Dictionary as follows : -
An organization for the control of several corporations under one direction by the device of a transfer by the stockholders in each corporation of at least a majority of the stock to a central committee or board of trustees, who issue in’ return to such stockholders respectively certificates showing in effect that, although they have parted with their stock and the consequent voting-power, they are still entitled to dividends or to share in the profits - the object being to enable the trustees to elect directors in all the corporations, to control and suspend at pleasure the work of any, and thus to economize expenses, regulate production, and defeat competition.
Mr. Tregear, with a view to clearness, divides that definition into three parts, dealing respectively with pools, rings, and trusts. The definition of “ pool,” according to Mr. Tregear, is -
A “pool” is a combination or agreement between certain persons or firms, in order to influence the market by controlling output, dividing territory, extending trade, and sometimes determining prices.
A “ ring,” says this gentleman, is -
A “ring” is a similar combination, but devoted more especially to controlling sellingprices.
For instance, a number of manufacturers of one or several articles may agree to form a “ ring,” one condition of which is that those articles shall not be sold below a certain price. A “ trust,” according to Mr. Tregear, is defined as follows: -
A “ trust “ is a corporation or combination of corporations into unity for the purpose of amalgamating plants and properties, economizing expenses, buying and selling to best advantage, ousting competition, and controlling markets.
The trusts that are best known, and, I suppose, the largest in the world, are those of the Standard Oil Company, the Consolidated Tobacco Company, and the Anthracite Coal Company.
– What about the Beef Trust ?
– There is the Beef Trust, and a great many others.
– Does Mr. Tregear quote authorities, or he is expressing his own opinion ?
- Mr. Tregear, in the first place, quotes the dictionary definition, and then proceeds to divide that definition into the three parts I have mentioned - pools, rings, and trusts, all of which act in different ways, although their object is practical lv the same, namely, to get a monopoly. Trusts are not necessarily all bad, in the sense that in their operations they produce injurious results to the public. It entirely depends on how a trust is conducted whether or not a bad effect is produced. Trusts naturally desire to get as- much profit as possible - that is human nature - but all trusts are not worked’ absolutely to the injury of the public. Mr. Tregear points out -
The great enterprises which have legitimately reduced the cost of production and have won a place for American enterprises in the international industrial world should not be strangled by adverse legislation, but only controlled by national regulation. To strike down industrial or commercial combinations, with the result of closing factories and mines, and turning workers by thousands into the streets, would’ be a calamity whose extent could hardly be imagined.
Mr. Tregear then makes a quotation from some remarks by the Hon. ,E. Morrell, of the House of Representatives, Washington,, as follows: -
The trusts are not a cancer in the body politic : they are not an excrescence on the body politic; they are a part of the vital principleof the body politic. Thev need to be properly regulated and watched and controlled, just the same as any vital organ of the body needs to be ; but, in like manner, they need to be guarded’ from violent injury.
In the conduct of business it often happens that, by means of combination, expenses may be very considerably reduced. By this means, the cost of production maybe cheapened, and it may be possible to supply the particular article at a lower rate than that which prevailed before the combination took place. If that be so, who is to complain ? The working man ordinarily likes to be employed by a big combination, because, as a rule, big combinations pay the highest rates of wages. If the public are not injured, but benefited, by a combination, as a result of a reduction in the cost of production, who is to complain ? Nobody ; because under such circumstances the community as a whole benefits.
– Would not a beneficial trust of the kind indicated by the Minister come under the operation of this Bill ?
– It would if it were unfairly interfering with local industries.
– Of course it would.
– It would only if it restrained trade or commerce to the detriment of the public, or with intent to destroy by means of unfair competition, any Australian industry, the preservation of which would be advantageous to the Commonwealth, ‘having due regard to the interests of producers, workers, and consumers.
– The more thev lowered prices, the more these trusts would come within that definition.
– No; not necessarily.
– Will the Minister explain bow that would be?
– I cannot answer all these questions now. We must leave them to a later stage of the proceedings.
– I thought the Minister was dealing with that subject.
– No; I am not dealing with, it now at all. The only point I am making now is that there are, and may be, combinations and trusts whose operations are not necessarily injurious to the public.
– Is the paper from which the Minister is quoting available to honorable senators generally ?
– I do not know. It is a parliamentary paper, printed in New’ Zealand.
– It would be useful if we could get a copy of it.
– It would, and if I can supply honorable senators with copies of the paper, I shall be only too pleased to do so.
– The honorable senator is quoting it fully, and we shall be able to obtain the information from the report of his speech.
-.1 am quoting only those parts which I think of interest, and which bear out my argument.
– What is the date of the paper?
– It was published in 1903. Its title is Trusts and AntiTrust Legislation. There is a memorandum by the late Premier of New Zealand, in which he says that, having decided to bring forward legislation to prevent the formation of rings and trusts, he wishes to have the latest information on …- subject, and upon that Mr. Tregear prepared the report from which I am quoting. I come now to deal with the evil effects of trusts, and they are set down as -
In reference to the question of patents, we have only one monopoly that is recognised by law, and that is the monopoly of patentees. They may sell their rights to manufacturers, but it has been found that trusts are sometimes formed to defeat the object of a patent. They may actually pirate the patentee’s invention, and, having done so, defend their action in the Courts against him, or offer him some ridiculous price for it, and otherwise injure him very considerably. I do not know that I need quote anything further on that particular point. These are the charges that are brought against trusts. I quote now from page 8 of this paper -
One of the methods employed by trusts to raise the va,lue of their properties and depreciate those of others has been the illegal use and misuse of patents. Combinations have used their political and pecuniary influence to prevent patents applied for being granted, and in order that they might use the invention as being unpatented. A Court case disclosed that associated railway companies made an agreement for the purpose of restraining individual owners of patents from freely negotiating sale of interests in their patents, and from collecting compensation from any member of the association who has appropriated a patent invention. The combination was to use all means against any person bringing a suit against one of these members, was to collectively “boycott” or refuse to negotiate with the patentee, and not to settle a suit or claim so long as a similar suit or claim was maintained againstany other member of the association ; this, of course, to cut off “ the sinews of war “ from the opponent. (See Pettibone, the. United States, 13 “ Supreme Law Reporter,” 542,1893.) Thus, any competition for a patent is suppressed, and the combination either uses the patent without payment or purchases it at its own price. As the law of the United States declares that there shall be a fair and open market for patents, such acts as those, spoken of are plainly in “ restraint of trade,” and are illegal.
– That is not the only abuse of patents.
– There is a paragraph here which I may quote with regard to discrimination -
In the early part of this year it came to the knowledge of the President that great railway systems in the Middle West, upon which every section of the country is dependent for the movement of ‘breadstuff, had entered into unlawful agreements to transport the shipments of a few favored grain buyers at rates much below the tariff charges imposed on smaller dealers and the general public. This injustice prevailed to such an extent and for so long a time that most of the smaller shippers had been driven from the field, and the business formerly enjoyed by them absorbed by a limited number of persons who received secret and preferential rates. In a word, there was practically one buyer on each railway system, and the illegal advantages he secured from the carrier gave him a monopoly of the grain on the line with which his secret compact was made.
– That cannot happen in Australia.
– Not now; but it did happen in Australia not long ago.
– It does happen now to a modified extent, but this Bill will not touch it.
– I have been speaking with regard to trusts in the United States. Singular to say, in the experience of the United States these corporations appear in almost all cases in the form of. trusts and combines, but when we come to consider the experience of Europe, we find that there they take the form of pools. A number of independent manufacturers form a pool. They agree to a certain output and a certain price, and if one manufactures more than he is entitled to manufacture under the agreement, he has to pay something to the others in the pool for so doing.
– That might be quite legitimate.
– I quote from page 22 of Mr. Tregear’s report, to show what is done in this way in Austria.
Coming to the question of legislation in regard to industrial combinations, we find that so far back as1870 a drastic measure was passed in which it was declared that any agreements between business firms to raise prices are invalid. As an example of the working of the law may be cited a case in which an agreement regarding sales having been broken by one of the parties recourse was had to the Court. The decision of the Court was that not only was the agreement invalid, but that it was not necessary to prove that the price of goods had increased, for such prices might have increased without the agreement. The agreement could not become the subject of any valid contract, and, therefore, no penalty consented to by parties to the agreement among themselves could be inflicted. Even the institution of a selling bureau, a very common institution among Austrian pools, has been held to be invalid, and any violation of its contracts cannot be punished by legal methods. These decisions, making the adherence to such agreements entirely a question of personal honour, have tended somewhat to discourage the formation of trusts.
Honorable senators will see that in Austria they have a law under which a man may enter into whatever agreements he pleases, but so far as they are in restraint of trade they are invalid. It might be contended, that if a certain manufacturer manufactures more than the quantity of goods agreedupon by arrangement with others in a pool, or sells his goods at a lower price than that agreed upon, he is liable, under his contract, to a certain penalty, but, under the law, it is impossible to enforce that penalty, and in this way trusts have been to a very considerable extent discouraged in Austria. In Germany the law on the subject is very uncertain. As a matter of fact, the Prussian Government are themselves in a trust, and operate a trust. Public feeling in Germany is not specially hostile to trusts, but the publicity given in that country to the operation of corporations militates against their establishment. In the United States, this position arose in connexion with the formation of these corporations. There are in that country a number of separate States, and the Federal power can interfere only in connexion with inter-State or oversea commerce. It cannot interfere with the internal legislation of what are practically sovereign States. The result has been that when one State has passed a stringent corporation law compelling any business corporation to issue a yearly or half-yearly balance-sheet, and to give publicity to its operations in order that the public might, know exactly how its business was carried on, another State, anxious for the establishment o£ that corporation within its borders, has modified its’ law by giving facilities to the corporation to avoid the publicity enjoined by the law of the first State. A corporation would, therefore, naturally establish itself in the State which afforded the greatest facility for the carrying on of its business in the dark. The State of New Jersey, opposite New York, is noted for the very lax way in which itallows corporations to be formed, and a great many of the corporations and trusts of the United States have been incorporated in that State. In England, and in Europe, as a whole, such publicity in connexion with the operations of corporations and trusts has been insisted upon, that, amongst other things, the watering of stock has been largely prevented, and that is one of the great abuses of trusts in the United States. As a consequence, trusts have been discouraged in England and in Europe to a much greater extent than in the United States. I stated just now that in Germany, the people do not trouble very much about trusts and combines, and that, in fact, the Prussian Government is a party to a combine. I may quote the following on the subject from page 24 of this report: -
In the case of the potash combination, its products were formerly wholly obtained from mines belonging to the Government, but private mines were opened, and agreements made, in which the State itself (Prussia) is a party. The State had factories of its own to work up the products of the mine, and upon forming a pool with other mine and factory owners made certain rules, which, being agreed to, bind mine owners not to supply to outside factories, or these factories to buy from independent mines, but the Government retains the power of regulating the amount of output, and even of making special concessions in price for the benefit of German agriculture.
There can be little reason to consider the Stale as being a partner in an evil combination, when on many occasions the rights reserved to itself have been productive of enormous advantage through its chemists and agriculturists to the nation, lt does not scruple to punish guerilla competition by a competitive war, and has forced private enterprises to desist from busi ness, or enter the combination, but its direct influence has been that of the beneficent aristocrat.
That goes to prove a statement I made some time ago, namely, that all trusts are not necessarily disadvantageous to the public interests. Here is a case in point, so far as Germany is concerned. In England, there is a number of trusts.
– What ! In England?
– In England there is a great number of trusts.
– I thought that England was a free-trade country?
– Amongst my papers, and I think amongst the papers which I laid upon the table, there are some extracts which show that, next to the United States, England is the great country of trusts. Our free-trade friends say, and say loudly, that the trusts and combinations which are supposed to work so injuriously in the United States, are the product of protection, and that trusts and combinations are not so prevalent in other countries. In Europe, France is one of the most protectionist countries, whereas, the only free-trade country is England. France, the protectionist country, has hardly any trusts, but England’, the freetrade country, has more trusts thao any protectionist part of Europe. The argument of our free-trade friends, therefore, will not hold water.
– What about America ?
– The United States, we are told, is cursed with trusts, because it is a protectionist country.
– So it is.
– Compared with the protectionist countries in Europe, England has more trusts than they have, and immensely more trusts than France has.
– And less than America has.
– If protection is the cause of trusts, then France ought to have more trusts than England has, whereas it has fewer. In America there is a certain party which is constantly affirming that trusts are the result of protection, and the protectionists deny the statement. Mr. Tregear sums up the position by stating that in certain cases, protection does assist trusts, but that, taken as a whole, it is not the cause of trusts, because they are found in free-trade England to a larger extent that in protectionist France.
– By the expression “ more trusts,” does the Minister mean that there are more people in the trusts ?
– I mean that in point of number, capital, and so on, there are more trusts in England than in France, where, I understand, there are only one or two.
– In that highlyprotected country, America, the operations of a few trusts cover the whole Continent.
– In England, the law relating, to pools, rings, and trusts, is the old common law under which anything done in restraint of trade is illegal. The law as to corporations is extremely strict as regards the publicity which tends to deterthe formation of trusts
– Have we any trusts here?
– Undoubtedly, we have combinations here, but I do not say whether they are injurious or not, as I do not wish to argue that point. I shall tell honorable senators by-and-by why I ask for the Bill, apart altogether from the question of whether there is anything in the Commonwealth in the nature of an evil to cure by its provisions. I believe that there is, but I am not going to single out special combinations.
– The honorable senator is merely preparing, physic, although he has not got a patient.
– Yes ; and that is a very wise thing to do.
– The honorable senator does not know what is the matter with his patient, but he is going to physic him.
– But we do know what is the matter. We know that throughout the civilized world, for the last halfcentury or more, trusts have been formed, and in many cases, to the injury of the people. We do not expect to escape an evil of that sort.
– “ Prevention is better than cure.”
– Undoubtedly, in this case, “ prevention is better than cure.” I desire now to refer to the anti-trust legislation which has been enacted in various^ parts of the world. Some time ago, I laid upon the table a memorandum which was prepared by my secretary, and which gives honorable senators all the information which was obtainable on that subject. If they will turn to the paper, they will see that the first Act of the United States was the Inter-State Commerce Act of 1887 -
This Act forbids the restraint of trade and commerce by carriers and shippers engaged in Inter-State commerce.
Its principal objects are summarized thus : -
To secure just and reasonable charges for transportation ; to prohibit unjust discrimination in the rendition of like services under similar circumstances and conditions ; to prevent undue or unreasonable reference to persons, corporations, or localities; and to abolish combinations for pooling freights.
– In England, there is a similar Act called the Railways and Canals Act.
– It was found that these pools and combinations, when they became sufficiently powerful, made arrangements with the railway companies for special rates. In some cases, the special rates were enormously to the advantage of the combinations, and against other people. Take the case of the Standard Oil Company. By means of the enormous rebates which they got from the railway in the carriage of goods from the Pennsylvania oil-fields, they were able to compete with all their rivals, and in a. short time, to compel every one of the owners of the oil-well s in Pennsylvania to go into their combination until they got an immense monopoly.
– How does that apply to Australia?
– I do not say it does apply. I am only pointing out that the Inter-State Commerce Act was one of the first Acts passed in America for the purpose of preventing the monopolies which were obtained! under the rebates and concessions granted by railway companies. We have no fear of anything of that sort arising here, and therefore we have not made any provision in that regard. In the Commonwealth Constitution we took the power to create an Inter-State Commission, which, would have the right of regulating this kind of traffic between the States. Before our Constitution Act was passed we had discriminating rates on the States railways. Victoria granted rebates on the carriage of wool from the border of New South Wales to Melbourne. South Australia had special rates with regard to the carriage of wool on her -railways, and New South Wales also had special rates from part of Riverina. Because we had the power to create an Inter-State Commission if we desired, the Railways Commissioners met together, and, I understand, came to an arrangement bv which no such rebates are now granted. Therefore, as far as we know, there is no necessity for the appointment of an Inter-State Commission.
– But there is nothing to prevent them from giving these rebates and discriminations within the area of the State itself?
– No. The next Act against trusts was passed in America in 1800. and it is called the Sherman Anti-Trust Law. It makes every contact or combination in form of a trust in restraint of commerce, illegal, no matter whether it is injurious or not. According to the memorandum on Anti-Trust Legislation -
It declares every contract, combination, in form of a trust or otherwise, or conspiracy in restraint of trade or commerce, to be illegal ; every party thereto guilty of a misdemeanour, and punishable by fine not exceeding $5,000 or by imprisonment not exceeding one year, or by both said punishments.
The Sherman Act was followed in 1894 by the Wilson Act, the object of which was to deal with trust agreements by importers. The Commerce and Labour Act of -1903 provides an official agency to obtain information with a view to better regulation and legislation. The Expedition Act and the Elkin Act, passed in the same year, are machinery Acts to simplify the taking of proceedings under previous Acts. In .the States and Territories of the United States there are certain anti-trust laws. On this subject my secretary says, in his memorandum -
The nature of the anti-trust legislation may be indicated bv a brief reference to some of the State enactments -
In the State of Arkansas, all combinations which tend to lessen free competition in importation, production, or sale of goods, or to regulate or fix the prices, are deemed to be conspiracy, punishable b’ imprisonment or fine; in Illinois, any trust, pool, combine, agreement, or understanding for regulating prices of goods, or limiting quantities made or sold, is a misdemeanour, punishable by fine or imprisonment, or both ; in Kansas, it is a misdemeanour to create or maintain a confederation to regulate the price or quantities of goods, fees of attorneys and doctors, or rate of interest, punishable by fine or imprisonment, or both ; in New York, it is a misdemeanour to combine to create a monopoly in the production or sale of any commodity of common use, or to restrain competition in the supply or price, punishable by fine or imprisonment, or both; in Tennessee, it is a felony, punishable by fine or imprisonment, or both, to’ create or maintain any combination that tends to prevent free competition in the production or importation or sale of goods, or to regulate the price; in Michigan, making a contract is one crime, and acting under it another, both punishable by fine or imprisonment, or both.
– Does the Statute say that “ making a contract is one crime “ ?
– To make a contract is one crime, and to act under the contract is another crime.
– Surely the Statute does not say that !
– Even if a man does nothing, under the contract, he is punishable because he made it, and if he acts thereunder he is liable to additional punishment. I understand that those words are in the Act.
There are, as indicated already, laws in many other States to similar effect. In making a comparison of the State laws, it is noticeable that in some of the States statutory exceptions from the heavy penalties have been made in favour of producers and raisers of agricultural products and live stock, and also in favour of organization of labourers.
I only quote these statements to show what a mass of legislation has been passed on the subject with’ which we are dealing in this Bill, and to point out that there must be some reason for its enactment.
– Since the Sherman Act was passed, hive trusts increased or decreased in Ameri:a ?
– Thev have been clever enough to dodge every Act that has been passed.
– The trusts have been fined, and subjected to all sorts of penalties in order to deter them.
– They have decreased in San Francisco - there has been an earthquake.
– An earthquake is the only thing that will stop them.
– In Canada, in
V1904, a law was passed which was intended to operate against the practice of dumping. This law provides for the collection of special duty on undervalued goods. Market value is to be the value when sold for home consumption in the country of export, not the exporter’s price which is often considerably under the price charged where manufactured. The definition of “ market value “ is -
The fair market value thereof in the usual and ordinary commercial acceptation of the term at the usual ‘and ordinary credit (and not the cash value, unless know to be a “ cash “ article by universal usage, and so bond fide paid for) when sold for home consumption in the principal markets of the country whence, and’ at the time when the same were exported directly to Canada.
– Is that the definition in this Bill ?
– That is the definition in the Canadian Act, and we have adopted it to a considerable extent. Canada had to protect her own manufactures against American trusts, many of which are very large concerns. In the United States there is frequently a surplus stock which manufacturers wish to export. They have supplied the whole of their home market, and for the disposal of their surplus the practice to which they used to resort was to sell abroad at a very low rate, sometimes more than 50 per cent, below the price at which they supplied their goods to people in the United States. When these goods were imported into Canada, the importers used to claim that they had a right .to pay duty ad valorem at that reduced price. What Canada has done is this: She says, “We will take no notice whatever of your price, whether you say it is a cash price or not. We will go to the place where the goods are manufactured, and ascertain the price charged by the manufacturers in their own country. We will make you pay dutv on that.” That system was found necessary in order to contend against dumping.
– ‘-Does the honorable senator say that he has an authentic list of articles which have been dumped?
– I have a list, and shall probably come to it in going through my notes. Honorable senators will also be aware that New Zealand has passed what is practically an AntiDumping Act. which provides that when goods are sold by importers in New Zealand at a price at which the manufacturers of such goods in that country cannot sell in competition if they are to receive anything like a fair profit, then the State will give them a bonus to help them.
– What is the date of that Act?
– It was passed last year. I have a word or two more to say about trusts. There was held in the
United States, in 1899, what was known as the Chicago Trust Conference. It was attended by representatives from all parts of the United States. They made a great many inquiries, and a report was brought up, from which I shall quote a portion. It will give honorable senators an idea of the extent to which trade and commerce ‘in the United States are in the hands of monopolists -
Questions were sent to wholesale dealers, commercial travellers, rail-roads, combinations, labour organizations, contractors and manufacturers, economists, financiers, public men, &c-
According to these replies the following articles cannot be bought outside the trusts : anthracite coal, bagging, grass goods, cigarettes, copper (rolled), coffee, glass, iron, and steel (certain iron and steel products, such as chains, nails, and shovels, pipe, &c), glucose, kerosene oil, liquors (domestic distilled, except some Kentucky whisky), matches (certain makes), raisins, roofing (felt and slate), powder and ammunition, stoves, sardines, starch, snuff, solder, scythe snaths, tinplate, tinware, tobacco (certain brands as Battle-axe, Horseshoe, Duke’s Mixture, and Durham), white lead, white pine lumber, wooden-ware, and yeast cakes.
That is a fine list of monopolies ! These trusts are able to charge the public, not, perhaps, exactly what they like, but considerably in excess of what is a fair price. This they do for the purpose of putting an extraordinary profit into their own pockets. Another important question dealt with by this conference was as to the effect which combinations had had upon distribution - that is, the effect upon the small storekeeper who distributes goods to the consumer. On this subject the following statement is made in the report: -
One hundred and ten say it is injurious, because it decreases their business and profits, and lends to eliminate them, and forty-nine wholesale dealers think thev have been benefited by the formation of combinations.
In answer to the question what effect combinations have on the consumer, one hundred and five think consumers are injured, while only twentyfour think they are benefited, and forty-one think there is no difference.
The items of information about prices aggregate five hundred and six. Four hundred and fifty-two were to the effect that prices rose after combinations were made, twenty-four that (hey fell, fifteen that there was no change, and fifteen that they were fluctuating, two hundred and ten do not specifically assign trusts as the cause of the change (increase in most of these cases), and forty assign other causes, usually increased demand, rise of raw materials, or the Tariff.
I quote this to show, in the first place, the effect of these monopolies, and the number of articles which they monopolize. I also quote it to show that, in the great majority of cases, those who are able to speak with any degree of knowledge on the subject consider that in the long run trusts are injurious. There are, it is admitted, good trusts and bad trusts - those that have done injury, and those whose operations have been attended with a certain amount of good. The replies to the circulars sent out showed that in certain cases the trusts had done some good. Now I wish to quote a passage from the final report of the United States Industrial Commission of 1902. The report is very valuable. The Commission was appointed toy the United States Senate. There were to be upon it five members of the Senate, to be appointed by the presiding officer, five members of the House of Representatives, appointed by the Speaker, and nine other persons, who should fairly represent the different industries and employments, to foe appointedby the President by and with the advice of the Senate. The Commission was appointed in 1898. It sat for a number of years, and, after collecting an immense amount of evidence from all parts of the United States, brought up a report embodying its conclusions. The gist of that report is to be found in the following recommendations : -
We now further recommend -
– That applies to internal trade.
– I am not quite sure whether it applies to foreign trade also. Honorable senator’s will notice the very drastic proposals there made. It will be observed,also, that we have followed the United States laws pretty closely in drawing up this Bill. Now I wish to refer to the measure itself. I will call attention to the principal clauses in it, although I shall not attempt to go through it exhaustively. The first matter in the Bill to which I wish to call attention is the definition of the term “ commercial trust.” It is defined to include -
A combination whether wholly or partly within or beyond Australia.
This provision has been very carefully considered by the Attorney-General, who hashad regard to the different decisions that have been given, particularly in the United’ States Courts, in the various actions that have been brought against trusts and combines. Some of them have been able to escape punishment in consequence of the law not having been as carefully worded as it might have been. The Attorney-General has endeavoured, and I believe he has succeeded, in framing a definition under which it will be very difficult for trusts and combines to defeat the law. The term “commercial trust “ will include all combinations that have been attempted up to the present time. Clause 4 relates to individuals. It provides against -
Any person who either as principal or as agent makes or enters into a contract . . . (a) with intent to restrain trade or commerce to the detriment of the public.
In the United States laws on this subject, those words, “ to the detriment of the public,” are not included. Consequently, some trusts, although their operations have not been proved to be to the detriment of the public, have been punished simply becausethey came within the law. For instance, there is the case of the United States v. Coal Dealers’ Association of California, an outlineof which is as follows : -
Practically all the coal used in San Francisco was mined in Washington, Oregon, and BritishColumbia. A very large number of the coal dealers in San Francisco formed themselves into an association, agreeing not to sell coal below certain prices. The association entered into acontract with the producers of coal in Washington, Oregon, and British Columbia, whereby the producers agreed to co-operate with the association to carry out its purposes, and the producers agreed not to sell coal to any non-member except for a much higher price than they charged members. United States took action to enjoin proceedings under this arrangement.
The Court held that the combination affected the rate of coal as soon as it arrived in San Francisco from other States, and before it had become a part of the mass of property in the State it remained in Inter-State commerce, and, therefore, came under the Anti-Trust Act. It was unnecessary to discuss whether the restraint was reasonable, for the Sherman Anti-Truft law forbids all restraints whether reasonable or not.
It will be seen that in that case an injunction was granted. Clause 4, paragraph b of sub-clause 1, sets forth that it is an offence to enter into any contract or combination - with intent to destroy or injure by means of unfair competition any Australian industry, the preservation of which- is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.
The. penalty for the offence is a fine of £500, and it is provided that every contract made or entered into in contravention of the clause shall be absolutely illegal and void. Clause 4, it will be seen, refers to persons, corporations being provided for in clause 5, which reads as follows: -
Any foreign corporation, or trading or financial corporation formed in the Commonwealth, which, either as principal or agent, makes or enters into any contract, or engages or continues in any combination ….
Then follow words precisely similar to those of paragraphs a and b of sub-clause 1 of clause 4, and, as under that clause, the penalty is . £500, while every contract so made is to be, void. The questionmay be asked whether there is power to deal with foreign corporations. If honorable senators turn to section 51 of the Constitution they will see that the Commonwealth Parliament has power to make laws with respect to -
Trade and commerce with other countries, and among the States.
That is sub-section 1 of section 51; and sub-section 20 gives the Parliament power to deal with -
Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.
It will be seen, therefore, that we have very extensive powers in this connexion. We cannot deal with individuals doing purely Inter-State business, but we may say to foreign corporations that they must not do certain things, or that, if they do, they shall be punished.
– How is it proposed to reach foreign corporations?
– Foreign corporations, which come within the Bill, will have agents in Australia.
– But supposing a foreign corporation has no agent?
– I cannot answer questions of that kind on the second reading; and I suggest that the honorable senator should raise these points in
Committee, where I shall have the assistance of my legal colleague. Clause 6 deals with unfair competition, and clause 7 provides against any monopoly of Inter-State or external trade. Clause 8 refers to the monopoly of trade by corporations, and includes any foreign corporation or trading or financial corporation formed within the Commonwealth. I desire to call special attention to clause 10, which provides for injunctions. It is laid down by this clause that no injunction shall be granted until there shall have been a hearing and determination on the merits of the case ; in other words, it will not be possible to obtain what the lawyers call an interlocutory order, which is made on a sort of ex parte statement to the Judge, often relied’ on in ordinary processes of law. The clause renders it imperative that the facts shall be laid before the Court, which must make inquiry before an injunction can be granted. Clause 11, which deals with actions for damages, is taken from the Sherman Act, and I propose to quote a case in order to show how that Act works in operation. The case is as follows : -
Montague v. Lowry. - This case is one in which an action was brought by a private person against a combination engaged in the manufacture of tiles, grates, and mantels, to recover treble damages under section 7 of the Sherman Anti-Trust Act. Plaintiffs in that case claimed that they had been boycotted by the Trust, and were unable to purchase goods except from members of the combine at “ list prices,” which was 50 per cent. higher than was charged to members of the combine. Plaintiffs obtained treble . damages.
Honorable senators will notice that in this clause any person who is injured may sue for treble damages, as in the case which I have just quoted. In regard to suing under the Bill, it is provided that where imprisonment is involved, the case shall be heard before a Judge and jury, but that where it is purely a matter of a fine, the decision shall be left to a single Judge of the High Court.
– Can the Minister say whether there is power under the Bill to deal with a trust which is confined to one State?
– The Constitution itself would; I think, prevent our exercising any such power.
– I must say that I am not very clear on the point. There is no doubt that, under sub-section 20 of section51 of the Constitution, we have power to deal with foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.
– But not within the limits of a State.
– If a corporation is formed within the limits of a State, it is formed within the limits of the Com monwealth.
– For instance, could we deal with the Sydney Gas Company ?
– I do not know ; I should not like to express an opinion on that point. There are provisions regarding second offences, followed by clause 15, which deals with the public notification of the term of contracts or combinations, but to which, though a long provision, I need not refer to further. Part III. of the Bill has for its object the prevention of dumping. When this part of the measure was originally drawn, it was provided that a Board should make the necessary inquiry into any case of alleged dumping, but, in another place, a Justice of ‘the High Court was substituted, to the improvement, I think, of the Bill. We are more likely to get careful, legal, and consistent decisions from a’ single Judge, than from the members of any Board.
– Who may be interested in the trade.
– May I ask if the Bill will prevent export dumping?
– -Will our surplus wool be allowed to be dumped into England ?
– That is not dumping. As to this part of the Bill, I should like to read to honorable senators opinions expressed in debate in the UnitedStates Congress.
– I do not like the slang term “dumping.”
– It is a term which, I suppose, the people understand. In the Congressional Record, of the 5th February, 1903, is the following: -
That the great industrial trusts are selling vast quantitites of American products abroad at prices far “less than those at home, which they exact from their own countrymen, is common knowledge ; but it is difficult to obtain the exact figures of foreign sales in such cases, because the manufacturers are unwilling to acknowledge any advantage in prices to foreigners, less it injure their sales at home, and by the system of discount on regular prices so universally practised, it iseasy to conceal the facts. It was only by advertising in the New York World a reward of $100 that the Democratic Congressional Committee succeeded in obtaining some of the export price and discount lists, from which and from other reliable evidence the following statement is made up. It is believed to be entirely trustworthy : -
That long list, which honorable senators may examine for themselves, shows the percentage of difference between the export prices and the home prices in the case of fifty or more different articles. The preference in favour of the country to which the goods are exported, ranges from 13 per cent, to as high as 261 per cent.
– Does that represent the extent to which these exporters fleece their own people?
– The figures represent the difference between the home prices and the prices at which the goods are sold to people abroad, and the average difference, I should say, is considerably over 50 per cent. The list will give honorable senators some idea of the dumping that was going on. We know from the action taken in Canada that it is being practised, and we know that dumping is taking place here. Any one who paid attention to what was done by the Harvester Trust will know that when they first brought their goods herethey valued each harvester at £26. When Mr. McLean, as Minister of Trade and Customs in the ReidMcLean Ministry, raised the valuation to £38 or£39, they paid duty on that valuation without a word. Since then the value of these machines for duty has been still further raised, and I believe the importers are. kicking against that decision, and are bringing an action against the Minister of Trade and Customs on the subject. But that they have been, dumping their goods here at an unfair price and in unfair competition with our own manufacturers, and evading duty by a low valuation of their machines, there can be no mistake at all.
– I deny it absolutely.
– That is shown by the fact that, whilst they at first valued their harvesters at £26, they paid duty without a word of complaint when the valuation was increased to , £38 or£39.
– What else could they do when their machines would not otherwise be let in?
– I do not think there is any necessity for me to prove that dumping exists. I ask whether, if any honorable senator were a manufacturer here and goods were imported to compete unfairly with those he produced, he would not think that some steps should be taken to put a stop to it? There is no doubt whatever that he would.
– Will not the Tariff Commission give us useful evidence in connexion with this matter?
– No. I was a member of the Tariff Commission for a considerable length of time, and whilst they have collected a little information on the subject, I can tell honorable senators that it is all in the direction I have indicated, and not on the other side.
– Will the Minister take care that we have the evidence collectedby the Tariff Commission before we are asked to consider this matter?
– No, decidedly not. This Bill is independent altogether of the work of the Tariff Commission. I do not know what the Tariff Commission may report, but I can tell honorable senators that the evidence givenbefore the Commission in connexion with dumping went to show that it exists. There has been no evidence to show that it does not exist.
– It depends on what the Minister calls dumping. All imports may be said to be dumped.
– By clause 17 it is provided that -
Unfair competition has in all cases reference to competition with those Australian industries, the preservation of which, in the opinion of the Comptroller-General or a Justice, as the case may be, is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.
I think that no honorable senator can object to that. Clause 18 provides when competition shall be deemed to be unfair. It will be unfair if - (a)Under ordinary circumstances of trade it would probably lead to the Australian goods being no longer produced or being withdrawn from the market, or being sold at a loss, unless produced at an inadequate remuneration for labour ; or
In the second part of this clause it is provided that, in certain cases which are set out, and which I need not read, because we shall consider them in detail in Committee, the competition shallbe deemed unfair unless the contrary is proved. Then I come to the proceedings which are to be taken under these clauses. There will be a Comptroller-General, who in all probability will be Dr. Wollaston, the present chief of the Customs Department. It is provided that whenever he has received a complaint in writing, and has reason to believe that any person, singly or in combination with any other person within or beyond the Commonwealth, is importing into Australia goods with intent to destroy or injure any Australian industry by unfair competition with Australian goods, he maycertify to the Minister accordingly. The certificate of the Comptroller-General shall specify the imported goods, the Australian goods and industries likely to be injured, the name of the importer, the grounds for assuming unfairness in the competition, the name, address, and occupation of the person upon whose information action is taken, and any further statement which the Comptroller-General may see fit to make. He will then give the importer an opportunity to come before him and show cause - to answer the complaint which has been received in writing from the person who claims to be aggrieved. The certificate of the Comptroller-General will then be submitted to the Minister, and on receipt of it the Minister may, by order in writing, refer to a Justice the investigation and determination of the question. He will notify in the Gazette that the question has been so referred, and forward to the Justice a copy of the Comptroller-General’s certificate. Provision is then made as to what the Justice shall do. He is to be given power, as set out in a clause containing nine sub-clauses, to fully investigate every matter, and when he has prepared his decision he is to forward it to the Minister. Clause 22 provides the action to be taken upon the determination of the Justice, and then there is provision in relation to a bond. These are the provisions of the Bill, and I contend that they are manifestly fair. The other branch of this Parliament took immense pains in dealing with the subject, and a great many alterations were made upon the Bill as at first introduced. We have received the measure after the wisdom of the House of Representatives has been applied to its consideration and amendment.
– Do the prosecutions which have taken place in America show that the Sherman Act is fairly effective?
– I think there must be some kind of telepathy between the honorable and learned senator and myself, because that is just what I am coming to. I have a note “ to refer to other reported statements that trust laws are a dead letter in the United States.” I know that that is an old cry. It is true that there have been many cases in which the laws have failed to be effective, but there are many others in whichthey have been successful. I propose to refer to some of the cases in which the law has been successful in dealing with trusts. The Attorney-General has very carefully looked into those cases in which the law has failed. He has noted the reasons for the failure, and in this Bill we have protected ourselves as far as possible against a similar unfortunate result.
– We have different Courts in this country.
– Dealing with cases in which the law has been successful I have the following note: -
United States v. Jellico Mountain Coal and Coke Co., 43 Federal Reporter 898, 1891. - Owners of the Kentucky Coal Mine and the dealers in Nashville, Tennessee, formed a combination whereby all the Nashville dealers could sell coal at the same price, the price to be fixed by the combination ; and the mines agreed to sell no coal in Nashville to any person not a member of the combination. The United States brings action under the Sherman Anti-Trust Statute to enjoin proceedings under this agreement.
Finding of the Court. - In making the agreement the transportation of the coal from Kentucky to Nashville, Tennessee, was a necessary incident to and element in the arrangement, and its execution would have been impossible without it.
That made it commerce between the States, and brought it within the purview of the Federal law -
It was, to all intents and purposes, commerce between the Stales, and as it is clear that it was a combination in restraint of trade, it falls within the Act.
Defendants are enjoined.
In January, 1903, Mr. Gaines, a member of the Federal House of Representatives, for Tennessee, said -
This Coal Trust was destroyed. Yet the honest coal business survives, and is thriving in Kentucky and Tennessee, and coal is selling there to-day at $3.50 to $3.75 - and why? The laws are enforced. Our Anti-Trust Statutes are enforced. The people are on top.
Honorable senators will see that they glory in the fact.
– Will the honorable senator tell us why the same law failed to deal with the Sugar Trust, the Tile Trust, and the Beef Trust?
– It did not fail to deal with, the Beef Trust.
– The first prosecution of the Beef Trust failed.
– I have a word or two tosay about the Beef Trust, which will show that the law did not fail to deal with it, and I propose to give some idea of the methods adopted by the Beef Trust, in whichthey notonly injured the consumer, which is the usual practice of monopolies, but the producer also.
– Although one case against the Beef Trust may have succeeded, it still exists.
– The honorable senator mentioned it himself as one of the big trusts of America.
– It was one of the big trusts of America, but it certainly does not exist as a trust now. There may be some understanding amongst those engaged in the business, but I dare say the President of the United States is looking after them pretty sharply at the present time, and if there is any understanding between them it is likely that they will fare badly. I call the attention of honorable senators now to the note I have in connexion! with the case United Slates v. Swift, 122 Federal Reporter, 529 April, 1903. Swift was a member of theBeef Trust, and the case was tried in the United States Circuit Court, in the northern district of Illinois.
This case involved what is known as the Beef Trust, one of the most formidable of the industrial combinations of the United States. It was urged that of the total volume of trade and commerce among the Stales and Territories in fresh meats the Trust controlled about 60 per cent. The Trust is alleged to be guilty of the following acts : -
That is against the producer -
The object was in the first place to establish big prices. When those prices became known throughout the country stock was sent in from all parts of the United States. Then the prices at once came down, and the owners of the stock could not take them back, perhaps thousands of miles, and were compelled to sell them for whatever they would fetch. In this way, the Beef Trust fleeced the producer in a most disgraceful manner. The note continues -
By that means they kept up prices in the foreign, market. There are all sorts of devices in trade, and while one ‘ plan adopted is to dump goods into a foreign market, another is to prevent shipments to foreign markets when they would have the effect of lowering prices in those markets.
– Whether they send goods or not, they are to be punished.
– Yes ; they are a bad lot; there is no doubt about that. The note ofthis case continues -
The Court held that these facts constituted an unlawful combination and conspiracy within the meaning of the Sherman Act, because it was restraint of trade and commerce, and, applying the rules laid down in the Addystone Pipe case, granted an injunction perpetual, forbidding the continuance of the acts of defendants complained against. (The injunction was granted in April, 1903. Further litigation followed, but the decision was upheld by the Supreme Court of the United States, in January, 1905.)
Then the injunction is set out, but I need not read it. It appears, however, that the trust comprised seven corporations, one co-partnership, and twenty-three other persons.
– Nowthey have what is called a gentleman’s agreement, which is expressed in no writing and no bond, except a bond of honour.
– I know that that has been stated, but I do not know that it has been proved. Whether there are men of honour among these people I am unable to say. I have four typical cases which show that in the United States the anti-trust law has been enforced. It may be said, in fact it has been said, that in the Commonwealth there is no necessity for this Bill. Some time ago I stated that I did not intend to allude to individuals or to corporations. But I expressed the belief that there were trusts and combines in existence in Australia. I will not say for a moment whether those trusts and combines are injurious - whether, like chips in porridge, they do neither good nor harm - or whether they are beneficial, as in some cases they may possibly be. I do not lay stress upon that aspect of the matter as one of the reasons for bringing in the Bill, but I submit that, in the absence of a restraining law, it is inevitable that sooner or later we should have trusts and combines working here which would be injurious to the public. It is a great deal wiser, therefore, to pass such legislation as this before any injury has been done than to wait until some of our citizens complain. We cannot pass retrospective legislation. We can only deal with cases which may arise after the passing of the law. It is wise, therefore, to legislate in advance. In this connexion I wish to quote some words which Senator Hoar addressed to the Senate of the United States on the 6th January, 1903, when it was considering certain proposed anti-trust legislation, and when he was arguing in favour of such legislation being proceeded with immediately. His statement is a wise one - and is worthy of being quoted. Speaking on the subject of the regulation of trusts or corporations, he said -
So it is for the future more than for the present that the wisdom of our legislators is called upon to take thought. And, Mr. President, the condition of that country is unhappy whose legislator does not take thought for the future even more, than for the present. Happy is the people whose statesmen foresee and prevent grievances, instead of waiting to experience them to cure them. In dealing with this trust problem, and the danger of vast accumulations of wealth in single private hands, we are seeking to lay down beforehand the law of & healthy life, and not to grope after a cure for a deadly sickness.
That is the position I take up in regard to this Bill. Honorable senators may say that there is nothing in the nature of trusts and combines in the ‘Commonwealth which demands the enactment of such legislation ; I do not care whether there is, or is not. Looking at what has been done in other countries in this respect, and remembering the injurious effects which trusts and combines have produced, more or less, in different parts of the world, I submit that it is a great deal better for us to place this measure upon the statutebook now than to wait until the evil actually exists. I contend that if it be enacted, we shall be able to deal with any case which may arise before much mischief can be done. I believe that it will have a deterrent effect, in that it will prevent trusts and combines being formed whichwould be injurious to the public interest.
Debate (on motion by Senator Millen) adjourned.
Motion (by Senator Playford) proposed -
That the adjourned debate be an Order of the Day for Wednesday next.
– I desire to ask the Minister of Defence whether he will be able to give every member of the Senate a copy of the paper by Mr. Tregear, from which he quoted in his speech?
– I cannot lay the whole of the paper upon the table of the Senate, because it contains the greater portion of the information which appears in the memorandum on Anti-Trust Legislation. But I shall get such parts of the paper as I think will be useful printed, and circulated among honorable senators as soon as possible.
Question resolved in the affirmative.
Senate adjourned at 3.40 p.m.
Cite as: Australia, Senate, Debates, 20 July 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060720_senate_2_32/>.