4th Parliament · 1st Session
Mr. Speaker took the chair at 10.30 a.m., and read prayers.
– I wish to make a personal explanation. I left the chamber yesterday while the Seat of Government Administration Bill was under discussion, because I thought that the debate would be a strenuous one, and I did not feel able to remain, but I intended to pair against the measure, and asked that that fact should be recorded. I find that I was not paired in the first division which took place, though I was in the second. The pair list is quite correct, but as it has not been published in the newspapers, I wish to make known the fact that I am emphatically opposed to the site which has been chosen.
Report (No. 4) presented by Mr. R.
Edwards, read by the Clerk, and adopted.
Statements by High Commissioner.
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are as follow : -
asked the Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are as fol-. low : -
asked the Acting Treasurer, upon notice -
– The answers to the honorable member’s questions are -
asked the Minister of Home Affairs, upon notice -
What are the details embodied in the “ nonrecurring works” - Government House, Sydney, £838; Government House, . Melbourne, £1,198 - total, £2,036, expended in the year 1909-10 (see Estimates 1910-1911, page 35)?
– The following return gives the information -
Wireless Stations, Fremantle and Pennant Hills - Chief Electrical Engineer - Postal Assistants, New South Wales
asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are -
Mr. W. ELLIOT JOHNSON (for Mr. Bruce Smith) asked the PostmasterGeneral, upon notice -
– The answers to the honorable member’s questions are -
It was necessary to replace the direct earth connexion by an extensive electrical counter-poise.
The power plant had to be increased in size by about 75 per cent., and the transmitting devices correspondingly amended.
The necessary alterations were considered to be such as to justify an ‘extra payment being made.
asked the Postmaster- General, upon notice -
– The answers to the honorable member’s questions are -
Design and erection of new, or amendment of existing, buildings to accommodate telephone switchboards.
The design and erection of new or rearrangement and extension of existing switchboards.
The construction of underground tunnels and conduits, and thelaying therein of cables.
Obtaining new apparatus for use by subscribers.
The introduction of improved methods of handling telephone traffic. 2.£2963s3d.
– On Wednesday last the honorable member for Cook asked the following questions -
In reply to inquiries which were then being made, the following information has been received from the Public Service Commissioner : -
Motion (by Mr. Hughes) agreed to -
That leave be given to bring in a Bill for an
Act to amend the Judiciary Act 1903.
Bill presented, and read a first time.
Motion (by Mr. King O’Malley) agreed to -
That leave be given to bring in a Bill for an Act to amend the Referendum (Constitution Alteration) Act 1906-9.
Bill presented, and read a first time.
MINISTERS laid upon the table the following papers -
Defence - Torpedo Boat Destroyers - Papers re Berthing Accommodation.
Lands Acquisition Act - Land acquired under, at -
Guyra, New South Wales - For postal purposes.
Warburton, Victoria - For postal purposes.
Defence Act - Regulations Amended (Provisional) -
Military Cadet Corps - No. 11A - Statutory Rules 1910, No. 101.
No. 199 (a) - Statutory Rules 1910, No. too.
No. 555 (2)- Statutory Rules 1910, No. 99.
– In moving -
That this Bill be now read a second time,
I would point out that it is designed to amend the Australian Industries Preservation Act, which has already been amended on two occasions. I do not propose to address the House at any great length, for honorable members who will speak on this question are, no doubt, thoroughly conversant, both with the scope of the measure, and with the necessity for an amendment of the existing law. The circumstances under which the original Bill was introduced will recur to honorable members. The hope was then expressed that its effect would be to regulate and control the extreme operations of trusts, to suppress monopolies, and generally to enable the Legislature to exercise a paternal supervision and control over the financial monsters who in these days seem to multiply exceedingly in our commercial deep. The net effect of that Act so far has been nil. Two prosecutions, both arising out of the same case, have been proceeded with, and the result has been that sections 5 and 8 of the Act have been found to be ultra vires. I shall not recall the hopeful expressions of those who were responsible for them. It is sufficient that they have gone the way of most legislative flesh, and I hope sincerely that this little bantling of mine will not follow them. I desire very briefly to call attention to the impossibility in practice of enforcing this legislation in the vast majority of cases. Before we can deal with any trust, monopoly, or combine under the Act it is necessary to prove intent to restrain trade, and detriment to the public. The difficulty in that regard is not less than the difficulty of proving that an employer, under that section of the Conciliation and Arbitration Act which deals with the matter, has discharged an employe by reason only of the fact that he is a member of a union. It is something which in the very nature of the case is practically incapable of proof, and when we have to prove intent and detriment the matter becomes doubly difficult. What are the general methods of a combine? In the beginning no prospect could be more pleasing. When a combine commences operations it is up-to-date, and its competitors are overwhelmed with the opprobrium of the public who are obtaining goods from it at a lower rate than that at which they can obtain them from others. Let us take a well-known case outside this country, so that we shall not hurt the delicate susceptibilities of combines in the Commonwealth. By way of illustration, let us take the case of Nettlefold and Chamberlain, the great screw makers. They commenced operations with the expressed intention of providing screws to a long turning public at a ridiculously low figure. They carried out that intention to such an extent as to sell screws for less than it cost to provide the iron to make the screws. Their competitors were unable to rise to that lofty height of philanthropic commercialism, and two alternatives were therefore suggested : the one that they should join the combine, and the other that .they should close down. Some of them joined the combine and others ceased operations. When this happy state of affairs had been consummated the combine raised the price of screws. The detriment to the public in the early part of the combine’s operations was nonexistent. It follows, therefore, that if we have to prove detriment to the public we cannot do so in the early stages of a combine, because it is just when the combine is getting in its preparatory work that it actually does, in many cases, sell goods cheaper than they were sold before. It is while the public is hypnotised by the amazing and pleasing phenomenon of being able to obtain goods cheaper than they could before, and are therefore led to believe that the combine is an improved form of commercialism, and the very embodiment of philanthropy, that that combination waxes strong. The last of its competitors is gobbled up, and then up go the prices.
We are therefore in this position : that if detriment to the public must be proved, it can be proved only in the later stages of a combine’s existence. We have to wait until a combine becomes strong before we can do anything, and the experience of America is that when a combine becomes sufficiently strong no law can deal with it. I shall show conclusively that in America, where it is necessary to prove neither intent nor detriment, combines aredoing very well theoretically. Although the Statutes are flawless, although there is not one mesh which seems, large enough for the combines to get through, they are all on the other side, and, as my honorable colleague, the Min:ister of Home Affairs, “ would say, are “enjoying great peace of mind.”
I am not one of those who believe in the efficacy of this kind of legislation. I have’ said, over and over again, that whilst I am perfectly content to give anti-trust legislation a trial, I do not believe that it can be effective. Those who approve of such legislation and the country generally are entitled, however, to demand for it a fair trial, and so far they have not had it.. The legislation, as it now exists, does not give the people an opportunity to deal with combines owing to the fact that it is necessary to prove intent to restrain tradeand detriment to the public, both of which’ are extremely difficult, if not almost im-: possible of proof. The Crown is now confronted, in the first serious prosecution into which it has entered, with those twodifficulties, which I am sure the honorable and learned members who have preceded”, me in the office of Attorney-General will’ willingly admit; and in the great majority; of cases it is impossible to securea conviction under the principal Act as it stands. In’ asking the House toamend the law in this respect by making, it unnecessary to prove intent to restrain! trade, but to gather the intent from theact, we are only following the pre-: cedent adopted in the United States Statutes, as well as in the Courts, and under the English common-law decisions.] In the case of the Mogul Steam-ship Com party* v. McGregor, Gow and Company, Mr. Justice Bowen, in delivering the judgment of the Court, shows to what extent men may go under the English common law. After pointing out a number of things not permitted under the common law by way of restriction of trade, he says -
The intentional driving away of customers by show of violence: Tarleton v. McGawley (i); the obstruction of actors on the stage by preconcerted hissing : Clifford v. Brandon (2) ; Gregory v. Brunswick (3) ; the disturbance of wild fowl in decoys by the firing of guns : Carrington v. Taylor (4), and Kebble v. Hickeringill (5) ; the impeding or threatening servants or workmen : Garret v. Taylor (6) ; the inducing persons under ‘personal contracts to break their contracts : Bowen v. Hall (7), Lumley v. Gye (8) ; all are instances of such forbidden acts: But the defendants have been guilty of none bf these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade. To the argument that a competition so pursued ceases to have a just cause or excuse when there is ill-will or a personal intention to harm, it is sufficient to reply (as I have already pointed out) that there was here no personal intention to do any. other or greater harm to the plaintiffs than such as was necessarily involved in the desire to attract to the defendants’ ships the entire tea freights of the ports, a portion of which would otherwise have fallen to the plaintiffs’ share. I can find no authority for the doctrine that such a commercial motive deprives of “ just cause or excuse “ acts done in the course of trade which would but foi such a motive be justifiable. . . . But we were told that competition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been “unfair.” This seems to assume that, apart from fraud, intimidation, molestation, or obstruction, of some other personal right in rem or in personam, there is some natural standard of “fairness” or “reasonableness” (to be determined by the internal consciousness of judges and juries) be yond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no sufficient reason for such a proposition. It would impose a novel fetter upon trade.
Practically the Courts all lay it down, under the common law of England, that people may do just what they please in the way of competition, dr of restraint of trade, subject to two or three general rules which the accumulative decisions of cen- tories have crystallized, generally adopted, and made the practical basis of the Statute law of America.
The Sherman Act, of which our own Act is a weak imitation, seeks to limit the rights of combines to restrain trade. When I was dealing with the Constitution Amendment (Monopolies) Bill, I pointed out to what length the American Statutes went; and I shall say no more on that aspect before I deal with the judgment in which the whole of the cases which settle the law in America are reviewed. The American Statutes practically say that all restraint of trade, whether reasonable or unreasonable, with or without intent to restrain trade, whether to the detriment or to the benefit of the public, is illegal and an offence. It is no plea that the restraint is reasonable, or that the public are not affected prejudicially; all that has to be established in order to secure a conviction is the fact that there is a restraint of trade whether by a man, some men, a combination, trust, corporation, or monopoly, no matter under what guise or term. Providing there is, in fact, a restraint of trade, that is an offence ; and no plea that it was for the purpose of checking ruinous competition, and so forth, avails.
I do not wish to detain the House, and, therefore, I shall dwell on the matter no more than is absolutely necessary. But one authority may be cited in support of what has been said. In the case of the Northern Securities Company v. United. States, the law is laid down, as reported in volume 193, United Stales Reports, and Judge Harlan, in affirming the decree of the Court, reviews the whole of the cases that have settled the law. I may be permitted to quote briefly from that judgment so that honorable members may see the extent to which the American law goes. In our legislation we stop short of the American law, and, therefore, I think we may fairly claim warrant for at least going as far as we do. Judge Harlan, speaking of the Sherman Act, is thus reported on page 328 -
Is the Act to be construed as forbidding every combination or conspiracy in restraint of trade or commerce among the States or with foreign nations? Or, does it embrace only such re.straints as are unreasonable in their nature ? Is the motive with which a forbidden combination or conspiracy was formed at all material when it appears that the necessary tendency of the particular combination or conspiracy in question is to restrict or suppress free competition between competing railroads engaged in commerce among the States? Does the Act of Congress prescribe, as a rule for Inter-State or international commerce, that the operation of the natural laws of competition between those engaged in such commerce shall not be restricted or interfered with by any contract, combination or conspiracy? How far may Congress go in regulating the affairs or conduct of State corporations engaged as carriers in commerce among the States or of state corporations which, although not directly engaged themselves in such commerce, yet have control of the business of Inter-State carriers ?
Then he sets forth the cases on which the law has been settled, and, shortly, by titles, they are - United States v. E. C. Knight Company, United States v. TransMissouri Freight Association, United States v. Joint Traffic Association, Hopkins v. United States, Anderson v. United States, Addyston Pipe and Steel Company v. United States, Montagu and- Company v. Lowry, and Pearsall v. Great Northern Railway. Certain propositions were put forward in an endeavour to show that there were limitations in the statute, and those propositions were very interesting. They were -
That although the Act of Congress known as the Anti-Trust Act has no reference to the mere manufacture or production of articles or commodities within the limits of the several States, it does embrace and declare to .be illegal every contract, combination or conspiracy, in whatever form, of whatever nature, and whoever may be parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States or with foreign nations;
That the Act is not limited to restraints of Inter-State and international trade or commerce that are unreasonable in their nature, but embraces all direct restraints imposed by any combination, conspiracy or monopoly upon such trade or commerce ;
That railroad carriers engaged in Inter-State or international trade or commerce are embraced by the Act;
That combinations even among private manufacturers or dealers whereby Inter-Stale or internal commerce is restrained are equally embraced by the Act;
That Congress has the power to establish rules by which Inter-State and international commerce shall be governed, and, by the AntiTrust Act, has prescribed the rule of free competition among those engaged in such commerce ;
That every combination or conspiracy which would extinguish competition between otherwise competing railroads engaged in Inter-Slate trade or commerce, and which would in that way restrain such trade or commerce, is made illegal by the Act;
Reviewing the objections to the propositions, the learned Judge is reported at page 351 thus-
Many suggestions were made in argument based upon the thought that the Anti-Trust Act would in the end prove to be mischievous in its consequences. Disaster to business and widespread financial ruin, it has been intimated, will follow the execution of its provisions. Such predictions were made in all the cases heretofore arising under that Act. But they have not been verified. It is the history of monopolies in this country and in England that predictions of ruin are habitually made by them when it is attempted, by legislation, to restrain their operations and to protect the public against their exactions. In this, as in former cases, they seek shelter behind the reserved rights of the States and even behind the constitutional guarantee of liberty of contract. But this court has heretofore adjudged that the Act of Congress did not touch the rights of the States, and that liberty of contract did not involve the Tight to deprive the public of the advantages of free competition in trade and commerce. Liberty of contract does not imply liberty in a corporation or individuals to defy the national will, when legally expressed. Nor does the enforcement of a legal enactment of Congress infringe, in any proper sense, the general inherent rights of every one to acquire and hold property. That right, like all other rights, must be exercised in subordination to the law.
But even if the court shared the gloomy forebodings in which the defendants indulge, it could not refuse to respect the action of .the legislative branch of the Government if what it has done is within the limits of its constituional power. The suggestions of disaster to business have, we apprehend, their origin in the zeal of parties who are opposed to the policy underlying the Act of Congress or are interested in the result of this particular case.
Here we have in a nutshell the whole of the arguments that can be urged against this amending Bill and the original statute. I think I may say that, for one petition received against our land tax legislation, ten have been received against this measure; and it has been the unswerving declaration of all that black’ and irrevocable ruin would result directly the Bill was passed. I refer the petitioners, who are labouring under what is clearly a delusion, to the judgment of the Supreme Court of the United States. That case was decided in 1904 ; and, although six years have passed, the great trust magnates of the American Republic have, I venture to say, never lost a night’s sleep. The futility of our Act, as a means to repress trusts, has been demonstrated over and over again. I do not mean to say that the Act has been absolutely useless, because it has been useful, inasmuch as it taught the sugar trust, for instance, that it could not cheat with impunity. But, confronted with a trust in the full vigour and plenitude of its power, it has proved absolutely futile. It is like endeavouring to divert a cataract with a straw.
It is not the intention of this measure, or of the Government, to prevent combinations. Combinations are the inevitable result of existing conditions. If by law we prohibited combinations to-morrow we should create a condition of commercial and industrial chaos. We could not carry on for twenty minutes without them. The number of independent traders or manufacturers in this country is so insignificant that the aggregation of their volume of trade is hardly worth mentioning, It is by combination and cooperative effort that the bulk of the manufacturing and production of this country is carried on. This measure is aimed, therefore, not against combines, but against the abuse of the power which great combinations may and do exercise to the detriment of the public. All that we are asking for is that we may not be placed in a ridiculous and farcical position when confronted with a combine that is exploiting the public by being asked to prove that which, on the face of it, no individual can prove. I ask honorable members to consider the position of any Government endeavouring to conduct a prosecution against a great combine. Before a case can be established in the Court intent must be proved - and proved from evidence. Whence is that evidence to be obtained? Within my own personal knowledge, witnesses drop away like icicles before the summer sun. When exposed to the full, fructifying beams of these combines, they disappear. Who is to give evidence if it is not one that has been oppressed by a combine? Between the time that a prosecution is initiated, and the time when it can be brought to a conclusion, months must elapse, and during that period those witnesses must carry on. They are exposed continuously to the operations of the combine, and are ruthlessly crushed out if they are not susceptible to being hypnotized and drawn within the magic circle. Then, when the prosecution is entered upon, and you are working up your case, where are your witnesses? Unless they have succumbed to the influences of the combine, they find themselves absolute commercial pariahs - they are outside the pale. On every hand their operations are restricted. They move here, and find that some operation of the combine prevents their free action. They attempt to move there, and again they see the door closed. They are torn away from you by the process of physical exhaustion, or in other ways, and you find it impossible at the hearing of the case to get the evidence necessary to prove that there was detriment to the public; and that there was, in fact, restraint of trade. When you have to prove intent and detriment, the difficulty is doubled; and where a combine amounts to a monopoly it is increased tenfold. Where you have a giant combine holding in the hollow of its hand eight or nine tenths of the trade in its own particular line throughout the Commonwealth, and a few smaller men struggling outside, and when it is from those, and from the general public and the distributors that you have to prove your case, any honorable member who thinks that the prospects of success are hopeful has a very lively belief in the possibilities of human action, and is optimistic to a degree not warranted by the facts.
When we endeavour to obtain informa-tion as to the methods by which these combines are conducted, we get any amount of evidence which stops short at proof.; Combines do not go about exposing their business in such a way as to lead readily to detrimental action against them. They walk warily, and are, I suppose, not to be blamed for doing so. But the people ought not to be hamstrung, nor should their efforts to deal with them be rendered utterly futile. I ask that the Government shall be clothed with as much power as has been given to the American Government by the American Legislature, so that when these great’ corporations overstep those limits which are for the benefit of the public we may take action.
I say again, and this is the best answer T can give to those gentlemen who have petitioned the Government in- relation to this matter, that, far from the desire of the Government being to put down combines, we recognise that this is the age of combines. This party, so far from desiring to suppress them, realizes that the day of competition is done. We hope to see the day when, by municipal, State, and national co-operation, we shall, to a very large extent, supersede the private corporations that are in existence now ; but, as practical men, we have to deal with things as they are. That being so, we must have some control. The day for Socialism is not yet. We are here as men charged with the performance of definite duties, and those duties include the control and regulation of combines and corporations. This Bill is absolutely necessary to give us that power.
An amendment has been laid on the table, to which I direct attention, in order to ease the minds of those gentlemen who imagine that we desire to wipe out all combines. Unless we had something to put in their place, it would be nothing less than a commercial and economic crime to attempt to do so, because the whole coun- try would be thrown into chaos. What we want, and must insist upon, is that those combines must, in their operations, have due regard for the welfare of the public, who ought not to be exploited or held up by them in any way. The amendment proposes that, where it can be shown in regard to combines other than monopolies that the matter alleged to ‘be done was not to the detriment of the public, and that the restraint of trade was not unreasonable, the offence under this particular section shall remain as it is. With regard, however, to monopolies, we must insist on striking out the provisions relating to “ intent,” and “ detriment to the public,” so that we may have ample power, if necessary, to bring those great organizations to heel. I hope the House will agree to this measure as speedily as possible.
.- There is no doubt that there may be difficulties in the administration of the Anti-Trust Acts. That is suggested by the fact that, although we commenced our legislation in 1906, we have made several amendments of it since then. Some of them have really got over the difficulty referred to by the Attorney-General as existing in America. The honorable member drew comparisons with American conditions which I do not think are likely to upset the administration here. For instance, in 1908, finding that witnesses might be disinclined to give evidence owing to the possibility of their being oppressed by large companies or combinations with whom they had to do business, we provided that an inquiry into the alleged facts might be made by the “ComptrollerGeneral of Customs, who might issue questions under the power given to him by statute. If he has information supplied to him on oath, or if he has reason to suspect that a combination within the meaning of the Act exists, he may formulate a series of questions, and put them to the companies, which are obliged to make answer. In America they have no such provision. The first questions put under that power were in the Huddart, Parker case. They were declared by the High Court to be ultra vires, because sections 5 and 8 of the Act’ of 1906, under which some of them were put, dealt with corporations, trusts, and combinations, not only in regard to Inter-State commerce, in respect of which our jurisdiction was unchallengeable, but also in regard to the domestic trade of the States. It was thought, as the Attor ney-General has suggested, by some who introduced the Act of 1906, that the corporation power in the Constitution gave us control over the operations of corporations in domestic trade as well as in Inter- State trade, but the High Court decided that that was not the case. The result was that the questions put under those invalid sections to those corporations were declared to be invalid, as they covered too much, and the sections were subsequently, by an amendment introduced by me last year, struck out of the 1906 and 1908 Acts., Subsequently, during my administration, my colleague, the honorable member for Kooyong, at that time Minister of Trade and Customs, co-operating with the AttorneyGeneral’s Department, issued new questions within the jurisdiction of the Inter- State trade provisions, and these and the answers to them are now part of the evidence on which the Coal and Shipping Combine are being prosecuted. In America, they had no power, before proceedings, to issue these questions to the parties themselves, and the result was that in the Beef Trust case, for instance, the cattle dealers were oppressed by the Trust if they gave any evidence as to its injurious effect upon the public and the cattle trade. This is pointed out by Snyder in his great work on this subject, at page 313. The Beef Trust, up to a certain point, had the cattle-grower at its mercy, but subsequently, in 1903, an Act was passed providing for a bureau of corporations, which practically now has the power of inquiry that we have given under the Act of 1908 to the Comptroller-General of Customs. It is too early yet to say what the effect upon that duress or oppression of parties who give evidence is likely to be. At all events, they have now in America a Department which can get evidence from the parties by direct inquiry and examination of them in a way that was not possible when those cases of oppression took placeThat diminishes, therefore, the likelihood of the trusts oppressing witnesses. I want to .qualify what has been said on that point, because it seems to me not to effect the expediency of what is proposed. The striking out of the existing Act of the words which the Attorney-General proposes to excise does not touch the point for which we made provision in 1908. In order to make the Act more efficacious in administration, without taking extreme measures before a test case has been applied, I suggested in the memorandum which has been referred to in the discussion on the industrial Bills that we might perhaps profit by the experience of the United States, and set up the Inter- State Commission, which would have larger powers than are possessed by the Minister of Trade and Customs. Honorable members will find there a statement of the functions of the American Bureau of Corporations. I referred to the matter, as indicating the scope of the Inter-State Commission, should it, under the proposed Bill of last year, be made part of our administrative machinery. The Attorney-General referred to the Chamberlain combination, or trust, for the making of screws. I do not know whether such a combination could not be prosecuted under our law as it stands, because, although actual detriment could not be proved, intent to restrain trade to the detriment of the public might be proved. It has been held in America that if the necessary consequence of the restraint of trade is public detriment, intent may be assumed. It has been decided, where the element of intent must guide the Court, that intent may be presumed from the inevitable or necessary result of an act. If the Chamberlain trust necessarily operated in restraint of trade to the detriment of the public, it could have been prosecuted under our Act, on the ground that there was intent to restrain trade to the detriment of the public, although no detriment had actually occurred. We also provided last year that, where rebates were given such as were referred to by the Navigation Commission, of which the Attorney-General was chairman, they should be declared penal if their object was to secure exclusive dealing with the trust. It was doubted whether the Act of 1906 would prevent the giving of these rebates, because it had been decided in America that they were not monopolies within the meaning of the Sherman Act, and you could not prosecute persons who gave rebates unless there was a contract under the restraint of trade provision. It was held generally that they were too indirect to fall within the purview of that Act. Therefore, we drafted a provision declaring rebates to be unlawful, but allowed the defence to be set up that they were not unfair under the circumstances, and not to the detriment of trade. If Parliament strikes out of section 4 the words “ to the detriment of the public,” a similar defence may still be set up. It is not established yet that detriment cannot be inferred as the necessary consequence of a combination, and, therefore, I think that the Bill is premature. It is necessary, however, to allow the defendants to show that their action is not in restraint of trade, or to the detriment of the public. The Bill goes beyond the Act of 1906 in respect of penalties. We found that it was futile to impose a fine of ,£500 on a rich corporation. Evidence of the profits alleged to be made by an alleged combine in the shipping and coal trade showed that it would be ridiculous to assume that attempts to continue to get such profits would be prevented by the imposition of a fine of .£500. The last Government, therefore, wished to provide that if such an offence were established, and an injunction against the combine obtained, there should be a fine of ,£500 a day for any breach of the injunction. The law at present is uncertain, there never having been a judicial pronouncement upon it. Indeed, the meaning of the Sherman Act is still uncertain, notwithstanding the judgment of 1904. I can cite the authority of writers in American law reviews regarding the amendment of the Sherman Act. An article in the Harvard Law Review art the subject is cited in vol. 6 of the Commonwealth Law Review. After an elaborate exposition of what the Sherman Act seems to mean, the writer advises that there should be no amendment until there has been a clear judicial pronouncement of the meaning of the words “ in restraint of trade.” While referring to certain innocent combinations to promote economy of management, whose effect and whose intent is not to prevent competition, though incidentally larger profits and a reduction of prices mav follow, he says that until the scope of these words is determined by the Supreme Court of America there should be no amendment of the Act.
In the opinion of the writer, it is not desirable to amend the Anti-Trust Act until the Supreme Court shall have decided whether the prohibitions of the Act apply to contracts and combinations of that class. If the Supreme Court should decide that such contracts and combinations are prohibited, an amendment of the Act certainly would be needed.
I ask the House to say whether it is desirable to assimilate the terms of our Act with those of the Sherman Act, from which we departed in 1906, before the doubts as to the scope of that Act have been removed… either by a decision by the Supreme Court of America, or by a decision regarding our law by the High Court of Australia. I question it, and last year did not propose to go to the length to which the AttorneyGeneral wishes us to go. The matter was the subject of a memorandum - which, I think, is in the Attorney-General’s office - for the guidance of the then Cabinet respecting legal matters, wherein it is stated that, should our Act fail, or the Constitution be found faulty in not allowing us to deal with alleged combines injurious to trade, our law should be amended after the first test had been applied, and, if necessary, larger constitutional powers should be asked for. That was a reasonable policy. It would have been too much to fisk for a comprehensive amendment of the law before it had been construed in a test case by the High Court. The case now before the Court was about the best test case that could be applied. I would not for a moment assume that the Crown is likely to fail in the prosecution. Neither the last Administration nor the present would have gone on with it unless there was a reasonable expectation of success, or a probability of obtaining a clear interpretation and construction of the law for guidance as to future policy. Honorable members will see that it is going a little too far to impose a penalty of ,£500 a day, not for the breach of an injunction, but for the repetition of an offence which may have been continuing for two years, when there is no judicial guidance as to what can or cannot be done.
– The penalties under the Bill do not exceed those in the Sherman Act, which provides for imprisonment.
– There are grave doubts in America as to the penalties. They started there by providing for imprisonment, but afterwards substituted a fine. In many cases fines were found to be ridiculous, because they were freely paid. In the Railways Act the penalty of imprisonment as an alternative to a fine was substituted in connexion with certain rebates. The American Acts, however, are not exactly in point. The Inter-State Commerce Act of 1887 dealt with carriers purely, and certain classes of rebates, but it was amended in 1906. It is not so wide as the Sherman Act, in which imprisonment is provided as a penalty. I merely suggest that, as so much depends on the legal meaning of certain phrases, it is going too far to provide for a fine of £500 a day before the public know what their obligations are. The Attorney-General will bear me out in the statement that the allegations regarding an alleged combine in the shipping and coal trade, and Inter- State traffic, covered a period extending from September, 1907, to last year. It would be very severe to fine a company ^500 a day in such a case before the law was clearly understood.
– That is merely the maximum penalty. One fine of ^500 would be futile.
– What 1 think would be fair would be to impose a fine of .£500 for the offence when proved, and, an injunction having been obtained, to provide a fine of ^500 a day for breach of the injunction. If an injunction is .broken, it is broken with knowledge of what the obligations of the law are. The Attorney-General has referred to the Great Mogul case, and there is no doubt that we cannot stop at the English common law as defined in that decision. There is no Inter- State common law in this matter, and therefore we must have some legislation. We have followed to a large extent the American Acts. In the case of the UnitedStales v. Keitel it was decided that there was no Inter-State law, and that these conspiracies could not be punished unless an Act were passed. Legislation was accordingly enacted. The decision of the Privy Council in the Mogul case was given, I think, in 1892, and it dealt with the character of a combination which was declared by Lord Coleridge in the Court of Appeal to be reasonable and legitimate trade selfishness. That decision was sustained subsequently by the House of Lords. The “ reasonable and legitimate selfishness “ which was regarded as an innocent part of the operation of these companies under the common law of England will be gathered from the following quotation from Stickney on the State Control of Trade and Commerce : -
The point decided was the legality, under the English law, of a combination of ship-owners, formed for the avowed purpose of controlling prices, and preventing competition - of preventing all competition between the parties combining, and destroying all competition by outsiders. It was, too, the case of a combination of common carriers, for the avowed purpose of absorbing, and controlling, the entire transportation of tea from Canton, and all the ports on the Hankow River, in China. The means to be used to accomplish that purpose included the fixing of rates by one common authority for all the combining owners, the boycotting of all outside competitors, the refusal to do business with parties who did business with any outside competitors, and the putting down of freights to any figure that might be necessary to drive away those competitors, with the intent to subsequently restore rates to a profitable figure after the suppression of the outside competition.
That was a noxious combination, yet it was held not to be illegal. It might be unlawful in the sense of voiding a contract, but it was not illegal in the sense of an action taken for consequent injury to a ship-owner, and therefore an action taken against the combination could not be sustained. It was held that there was no cause of action. Lord Bowen, Lord Watson, an’d others pointed out that such a combination between two or three persons could not be the subject of a criminal indictment, because to justify a criminal indictment there must be molestation or threats of molestation. The American decisions go further and say that there must be boycotting. According to this decision even a boycott would be a justifiable instrument of that which Lord Coleridge describes as “ reasonable and legitimate trade selfishness.” In common with the Government and, I think, honorable members generally, I hold that that class of legitimate and reasonable trade selfishness should be restrained if the necessary effect of it is to the detriment of the public.
– The only definition of “reasonable” that we can accept is the definition laid down by the English Courts in reference to the application of the company common law.
– The word “ reasonable “ is not involved so far as the provisions as regards restraint of trade are concerned. The Attorney-General has properly referred on that point to the Merger case in America. It has been held there that a combination in restraint of trade might be a reasonable restraint and yet be unlawful. The question of reasonableness or unreasonableness, however, does not arise. Let me quote the following paragraph, in addition to that which the Attorney-General has quoted : -
The Act is not limited to restraints of InterState and international trade or commerce that are unreasonable in their nature, but embraces all direct restraints, reasonable or unreasonable, imposed by any combination, conspiracy, or monopoly upon such trade or commerce.
That is the American law, and it is probably the view that would be taken here. I think it can be shown that that law goes beyond what is necessary. That is the point. The Act may not at present go beyond what is necessary-
– The amendment of which I have .given notice will remove the honorable member’s objection in that regard.
– I am glad the honorable member intends to move such anamendment. I have here a note that if the Committee insist upon striking out these words, then the defence allowed as regards rebates should be allowed under section 4. If the parties charged with restraint of trade can show that that restraint is not unfair to the public, they ought to be allowed to do so.
– The onus is no longer upon us.
– That, to a large extent, should help the Bill, but I question the policy of amending the Act before a proper test has been applied, more especially in view of the doubt as to the meaning of the American Statutes. Although our Act does not agree word for word with the Sherman Act, in effect it will be the same, and it is inexpedient to make any amendment of the Act before it has actually failed. I do not anticipate failure in a proper prosecution. The decision of Judge Harlan goes to show that -
The natural effect of competition is to increase commerce, and an agreement whose direct effect is to prevent this play of competition restrains, instead of promotes, trade and commerce.
All these restraints, then, are invalid in America, and will be invalid in Australia if the Act be amended in this way. There are other restraints which may not be touched, although there is a doubt as to whether or not they are not touched in America. These are restraints such as I have referred to which are not directed against others, but may be an indirect effect of a combination. It is slightly doubtful whether the Sherman Act touches a combination between two or three traders with a view of diminishing the cost of their management or operations, and upon this point I would refer to an article in the Commonwealth Law Review as to the policy of amending the Anti-Trust Act before a judicial pronouncement as to its meaning and scope has been obtained -
Many contracts and combinations that simply restrict competition among those contracting or combining, without involving monopolies or attempts to monopolize, are necessary to the successful conduct of trade and commerce, and such contracts and combinations always have been considered reasonable and proper in the United States as well as in other countries. If the Anti-Trust Act should be construed-
And a doubt exists upon that point - as prohibiting contracts and combinations of that class, it would be impossible, without incurring civil and criminal liabilities, to carry on the trade and commerce of the United States. Is it wise for us to adopt the effect of the Sherman Act?
– It is wise for vs to stop the growth of these great monopolies.
– That is merely a point of prejudice, because it presumes that the Act is inefficacious for the purpose. Such a statement must simply prejudice the debate rather than throw light upon the matter under discussion. Our desire is to put down combinations.
– We cannot do that under the law as it stands.
– I recognise the experience that the honorable member has had in this regard, and think that he is to be credited with the initiation of this class of legislation in the Commonwealth. At all events, he was a member of the Ministry which introduced the original Bill, and the administration of that measure would have been in his hands if he had remained in office.
– Does the honorable member contend that America has been successful in subduing monopolies?
– No; but I say that they have put “down several. Under the powers which they possess they have even put down combinations of manufacturers which affected Inter- State trade. There have been several big prosecutions, and where they have failed, it has been because the prosecution relied upon the Inter-State power in a matter that really only touched the domestic power of the States. In the Sugar case, for instance, it was declared that the monopoly had not a direct relation to Inter-State commerce, and did not operate as a restraint upon it. The prosecution, therefore, failed. The failures in America have been due to a reason which may conduce to failure here - the want of sufficient co-operation on the part of the States, although the majority of the States have passed legislation directed against monopolies.. That, however, has not been done in Australia, the only State Act dealing with this matter in this connexion being passed in 1908 by the Parliament of New South Wales. To some extent that does touch this question. I would point out to honorable members that this legislation does not touch mere combinations of capital. But it may also affect trade combinations. Under the English law employe’s have a perfect right to strike, but in the United States, recently, Gompers was imprisoned for a breach of the law-
– I do not think7 that he is yet serving his sentence.
– I think that he is in gaol. He was charged with a breach of the Sherman Act, and was sentenced, I think, to two years’ imprisonment.
– From that decision he appealed, and I do not think he has yet been gaoled.
– The Circuit Court of Appeal declared that he was guilty of an offence in respect of which he was liable to be imprisoned, and I think we need to be careful what we do in this connexion. A combination of employes, in restraint of trade under the American Act, is equally as reprehensible in law as is a combination of employers for that purpose. The decision in the Gompers case was that the men had a perfect right to stop employment, and I believe that the coal-miners in New South Wales had a perfect right to strike, and so to stop employment under our Federal legislation, so long as there was no molestation, or threat of molestation. In the Debs case in America, which related to an interference with the railways by strikers, there was a forcible obstruction of Inter-State commerce and the transportation of mails. The prosecution was for the infringement of a common law right within a State, and of the postal communication provisions of the Constitution of the United States of America. The strikers infringed the law by interfering, by force and with threats, with the right of the mails to free passage. Coming to clause 7, I find that the meaning of “monopoly,” under the Act, has never yet been clearly contested. Judson tells us that “ monopoly “ under the Sherman Act - an Act similar to our own - means the engrossing of trade to one’s self by means which prevent other parties from engaging in fair competition with him. It involves a complete control of a branch’ of trade; and, so far as intent is concerned, if the effect may be to give complete control, although that has not actually resulted, a charge may He under clause 7. I simply repeat what I said in regard to clause 4, that until we know the scope of the provision it is rather premature to strike out the words as proposed.
At the same time, I confess that the arguments do not apply with equal force to the monopoly clause and to the restraint of trade clause, because the word “ monopoly “ does imply some restriction on the rights of others. Unless there is some detriment, an organization cannot be called a monopoly; and it may be that, even if the words are struck out, a general detriment to the public or to particular individuals will be implied. But that is not absolutely clear; and we shall only know the state of the law when cases are decided by the High Court. As regards the other provisions of the Bill, including that relating to evidence, I really see no objection ; and I do not offer any strenuous opposition’ to the measure, which I suppose will pass as modified, to some extent, by the proposal of the Attorney-General to allow the defence to be set up that a monopoly is not to the detriment of the public. The chief object of my remarks, however, is to raise the question of the expediency of amending the Act before we have really had from the High Court some guiding decision as to what are the public obligations under the Act. In the meantime, until a decision has been given, we are not clear as to the necessity for amending the Act, because it may be found that proof of detriment does not really lie on the prosecution, but that if it be shown that the necessary effect will be detrimental to the public, conviction will follow. But it is rather too much to propose a fundamental alteration of the Act before the Judiciary has shown any clear necessity.
– This class of legislation commands the support of practically the whole House. The first Bill was introduced in 1906 by the honorable member for Hume, as Minister of Trade and Customs, and it was supported in a strong speech by the then Attorney-General. The Act was administered by the Department; and in 1908 a list was published of the cases under investigation. The coal combine and the confectionery combine were found to be of an Inter-State character, and ultimately one has become the subject of a prosecution. Then a whole series of cases came before the Department, but they confined their operations to the State only, and therefore no action could be taken until a decision had been given by the High Court as to the powers of the Commonwealth. That decision has now been given to the effect that a combination formed within a State is not the subject of, Commonwealth legislation. However, the House seems to be generally of the opinion that the Commonwealth ought to have complete power over all such organizations. Practically this Bill adopts the wording of the section in the Sherman Act, as follows : -
Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall .make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanour, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both such punishments, in the discretion of the Court.
When this class of legislation was first introduced in this House there was a desire to make a clear distinction between combinations which are reasonable and those which are unreasonable - a desire to recognise that combination forms a part of modern industrialism. There are combinations of labour and combinations of capital; and the desire of this Parliament was to suppress combinations which are injurious to the public in stifling competition, in raising prices, and thus extorting money from the consumer, and in various ways operating to the detriment of the community. The opinion, however, was distinctly expressed that it was not desirable to suppress reasonable, as well as unreasonable, combinations. The AttorneyGeneral admits that combinations are a necessity, and that, owing to the exigencies of modern trade, there are large organizations which may be regarded as reasonable. In many instances the standard of wages prevailing could not be paid unless there were some regulation by means of organization. But what is proposed now is practically to enact the words of the American Act. That Act, however, has not given satisfaction in the United States, and is the subject of a good deal of criticism at the present time. A presiding Judge of the United States Circuit Court of Appeals, the Hon. Peter Grosscup, speaking in 1908 at a Conference on the subject, said -
The Sherman Anti-Trust Act as it stands unamended makes all combinations and associations in restraint of trade unlawful, and this irrespective of whether the actual result of the combination be hurtful or helpful, reasonable or unreasonable, the public purpose embodied in the Sherman Act as it now stands being that there shall be no combinations or associations in restraint of trade, even though it be plainly manifest that the combination or association be helpful, rather than hurtful, to the public welfare.
Then in 1906, President Roosevelt, in his message to Congress, said -
We hold that the Government should not conduct the business of the nation, but that it should exercise such supervision as will insure its being conducted in the interests of the nation. Our aim is, so far ils may be, to secure for all decent, hard-working men equality of opportunity, and equality of burden.
The actual working of our laws has shown that the effort to prohibit all combination, good or bad, is noxious, where it is not ineffective. Combination of capital, like combination of labour, is a necessary element of our present industrial system. It is not possible completely to prevent it; and if it were possible such complete prevention would do damage to the general public. What we need is not vainly to try to prevent all combination, but to secure such rigorous and adequate control and supervision of the combinations as to prevent their injuring the public, or existing in such form as inevitably to threaten injury. For the mere fact that a combination has secured practically complete control of a necessary of life would under any circumstances show that such combination was to be presumed to be adverse to the public interest.
His concluding words are -
It is unfortunate that our present laws should forbid all combinations, instead of sharply discriminating between those combinations which do good and those combinations which do evil.
Then, in his message to Congress in 1908, President Roosevelt said -
I believe that it is worse than folly to attempt to prohibit all combinations as is done by the Sherman Anti-Trust law, because such a law can be enforced only imperfectly and unequally ; and its enforcement works almost as much hardship as good. I strongly advocate that instead of an unwise effort to prohibit all combinations, there shall be substituted a law which shall expressly permit combinations which are in the interest of the public, but shall at the same time give to some agency of the National Government full power of control and supervision over them. One of the chief features of this control should be securing entire publicity in all matters which the public has a right to know, and furthermore the power, not by judicial, but executive action, to prevent or put a stop to every form of improper favouritism or other wrong doing.
He pointed out also that a statement issued by the Inter-State Commission showed that the law, being all comprehensive, is practically useless to the people in its administration. The Inter-State Commission, which is, of course, a judicial body, has issued the following : -
The decision of the United States Supreme Court in the Trans-Missouri case and the Joint
Traffic Associations case has produced no practical effect upon the railway operations of the country. Such associations, in fact, exist now as they did before these decisions and with the same effect. In justice to all parties, we ought probably to add that it is difficult to see how our Inter-State railways could be operated with due regard to the interest of the shipper and the railway without concerted action of the kind afforded through these associations.
– There is only one cure for that - railway ownership !
– That is not the conclusion arrived at - the conclusion, as the President pointed out, is to specify the combinations which are injurious, and thus make it possible to enforce the law. The late President comments upon this -
This means that the law as construed by the Supreme Court is such that the business of the country cannot be conducted without breaking it. I recommend that you give careful and early consideration to this subject, and if you find the opinion of the Inter-State Commission justified, that you amend the law so as to obviate the evil disclosed.
We are asked to adopt the exact phraseology of the Sherman Act; and if that phraseology be construed by our Court in the same way as by the United States Court, combinations, whether reasonable or unreasonable, beneficial or evil, will all come under the law. I am sure that that is not the intention of this House. We are agreed that, if a combination has such strength as to be able to stifle’ competition and crush out the smaller men, it should be suppressed, as should also a combination which has got complete control of the market, and is using its power to fleece the public. If a combination has complete control of the whole of the agencies of the country in such a way as really to monopolize them to the detriment of the public, it ought not to be permitted to continue. But by adopting the exact phraseology of the Sherman Act, the Attorney-General may embrace combinations which are beneficial in their operations. In one of the judgments it was clearly pointed out that the Sherman Act really brings in all reasonable combinations. To a certain extent the Attorney-General has anticipated that objection by his amendment.
– Was not the Sherman Act ineffective?
– Not altogether. It has done a great deal of good. To quote the number of convictions under an Act is not the proper way to test its efficacy. In a recent report, an authority in the United States, referring to that Statute, points out that its efficacy cannot be gauged by the prosecutions under it. The efficacy of the Statute, he says, is often shown by the failure of the combinations to form. We do not desire, for instance, to prove that the law against murder is effectual by saying that last year we had 3,000 convictions under it. The efficacy of a law is rather proved by showing the failure of any person to commit the crime specified by it.
– The failure of the Sherman Act is shown by the return of the Democrats to power in America.
– Not necessarily, because, if I am not mistaken, Mr. W. J. Bryan, one of the leaders of the Democrats, wrote a letter to ex-President Roosevelt, offering him his support and assistance in any steps which he might take to bring down the combines. There is dissatisfaction with the Sherman Act, and it is regarded as inadequate for its purpose. It does not clearly define the nature of the persons on whom it is desired to operate.
– The trouble is the High Court - the Supreme Court of the United States.
– It is not the fault of the High Court. It is for this Parliament to define the law and specify the offence. If that is vaguely or improperly stated, Parliament must take the responsibility. The High Court cannot be blamed.
– If the High Court says it is unconstitutional, we are powerless.
– True; but the Sherman Act has never been declared unconstitutional. It is held to be perfectly within bounds, and our own Act has never been held, as a general law, to be unconstitutional. All that was held unconstitutional was our effort to invade the domain of law within the jurisdiction of the States. Regarding the draftsmanship of the Sherman Act, the following opinion was given in 1904 by the Assistant to the Department of the Attorney-General of the United States -
It is passing strange that an Act which was drawn by eminent lawyers and statesmen after prolonged discussion should have been so loosely and unscientifically drawn. From its very passage, courts have been compelled to guess at its meaning. Consider, for example, the sweeping character of the language in section 2, which makes it unlawful for any person to monopolize any part of inter-state ot foreign trade. The very word “ monopolize “ belongs to the lax language of the political rostrum, and not to the precise phraseology of the law-making department.
The word “ monopolize “ is the very word which is troubling the administration of the Act there, and if the constitutional amendments lately passed by this House are indorsed by the people, the same word will be found to cause trouble in the interpretation of our Constitution. When a legal offence is created, we ought to try to specify it in such clear and precise words that persons may know the nature of the acts which are prohibited. That is where the trouble has arisen in connexion with the anti-trust law of the United States. It is wide. Its meaning is left to the Court to determine, and the Courts have found difficulty in that respect. Suppose, for instance, it is left to the Court to decide what is reasonable or unreasonable, what is to guide the Court? Honorable members will remember the difficulty in which Mr. Justice Higgins found himself when he had to define the meaning of “ fair and reasonable rates of wages.” He complained, then, of the absence of any guiding rules or definitions. That is exactly the trouble in connexion with the Sherman Act. President Roosevelt, as others have done, points out in his messages to Congress that it prohibits reasonable and unreasonable combinations alike. It is defective because there is no proper executive machinery for its enforcement. We have supplemented our statute in that respect, and have taken executive powers which greatly assist in its administration. Those powers I daresay the United States Government will sooner or later get. They, are going further in the United States, by saying that the one way of preventing a great many of the evils of the trusts is to require full publicity of all their operations. That comes in with a branch of law dealing with corporations. It is suggested that, as regards all these great corporations, the greatest publicity should be given as to the formation of the company, the action of the company, the contracts made by it, and its financial operations. When all these various steps have to be taken, and the fullest information is given regarding the formation, registration, and operation of the companies, it is believed that a great many of the evils complained of in the United States will be remedied. So far as this Bill is concerned, the Attorney-General will have the assistance on this side of the House of all who desire to see injurious trusts suppressed ; but we appeal to him to frame the clause in such a way that the unreasonable and hurtful trusts shall be clearly specified, and that those which are not hurtful in their operations shall not come within the meshes of the law.
– The Act of 1906 was introduced by myself, as a member of the then Government. I feel now as I felt then, that it was one of the most important measures that we had the privilege of submitting. The amendment of it now before the House is also vastly important, because only this morning we find that the elections in the United States have been governed by the money belonging to the trusts. There is no doubt that, because the late President took action against the trusts, he and his party have been defeated at the elections.
– The anti-trust party - the Democrats - have won.
– The honorable member is talking rubbish. Ex-President Roosevelt, who led the . war against the trusts, has been defeated.
– Mr. Roosevelt was in favour of the Tariff that caused the trusts.
– It is the Free Trade policy, and not the Tariff, that causes the trusts. If any trusts are created under the Tariff we can deal with them, but we cannot deal with rings and combines created under Free Trade elsewhere, and extending their operations here.
– They dump their goods into other countries.
– Of course they do, and hitherto we have had no power to deal with them. I have not been able to compare this Bill with the original Act and the two amending Acts that have since been passed, but I have no doubt that its intro”duction is highly necessary. I commend the Attorney-General and the Government for bringing in a measure that will meet the troubles that now exist. The AttorneyGeneral has said that he does not consider that he can successfully punish the persons who have entered into these trusts. If there is a weakness in the law, we must get over that weakness, by taking full power to deal with the trusts.
– He says that he cannot do so, do what he will.
– At any rate, this is about the best attempt that he can make.
– To attempt to use the present Act is like trying to spear a whale with a wax match.
– When we have trusts that are not strong, but that threatento become very strong in the future, now is the time to deal with them. The power of money exercised by the trusts in influencing the people and influencing elections, as shown in America, is not felt here to anything like the same extent yet, and it isour duty now, in the interests of the public,to pass laws to prevent the trusts becoming; strong in this country. This measure will, I think, be the best attempt that has yet beenmade in that direction. We in Australia arein a better position to cope with the trusts than are the people of the United States, because our railways are in the hands of the States, whereas the American railways are in the hands of private companies. The privately-owned railways of America do more harm in this direction than anything else.
– There would be no big trusts there, except for the railway com:panies
– I do not go so far as that, in face of what we know about the Beef Trust, the Steel Trust, and theOil Trust, which have hundreds of millionsat their command. No doubt, the railwayshave something to do with their success, and it is a good thing that the Australianrailways are State owned. We have in Australia the Shipping Ring, the Coal’ Vend, the Tobacco Monopoly, the SugarCombine, and other organizations, which are still, comparatively speaking, in their infancy. If we allow them to become aspowerful as they will be if unchecked, weshall find ourselves unable to deal with them. My object in introducing the Bill’ of 1906 was to do all that we could at thetime to create some legislation to deal with, trusts. A great deal of the Sherman Act was embodied in that measure, although a number of sections and points in it were not taken over by us. The Sherman Act has not been successful in the United States. I listened very attentively to the honorable member for Angas, because his speeches are always interesting, as far as legal subjects can be made so.-. He said that he did not want the Minister to pass this legislation, because we had not got a decision in a certain case. I do not’ agree with him. If there is a doubt at all, we should Have the power to act. It does not follow that, because the Act provides for the imposition of a penalty of £500 a day, that penalty will be imposed. I do not think that it would be- imposed for a first offence, or for an offence committed in error ; but when an offence is continued, the penalty should be suffi- ciently high to enable us to stop it. Extreme measures are necessary in dealing with trusts. They are fighting hard for the accumulation of power and money, and oppressing the public, whom we have to consider. The Coal Vend, which the Minister seemed rather to favour, was instituted to keep up the price of coal.
– And of wages.
– It may have enabled higher wages to be paid in a particular district, if the conditions were honestly observed. But I object to a vend whose operations had the effect of increasing the price of coal in Melbourne to 32s. a ton in ordinary times. That was the result of the combination between the Vend and the shipping companies, some of which were interested in the coal mines.
– Why is the Vend supported by the present Government?
– That is not my concern. When I can see that a thing is not right, I express my opinion about it. If I had the power, I would put an end to every vend and combination which is oppressing the people. I know a great deal about the Vend, because I was once called in to settle what might have been as large a strike as that which recently occurred at Newcastle. An agreement had been made between the mine-owners and the men, with a view to keeping up the price of coal But it was found that some of the owners were selling sub rosa, and thus the men were not getting paid the wages which they should have been getting. When I discovered that fact, I would have taken action to expose the whole thing, but the dispute was settled. I had to be very determined in that case; and had the New South Wales Ministry acted similarly, the last strike would have been settled in an hour. The Wade Government, however, appeared not to wish to take action, with the result which we all know. I wish the Government to have power to deal with coal mine-owners, or any other persons who may form combinations detrimental to the public. Almost every individual in the community was affected by the last coal strike. All who used coal for any purpose had to pay higher prices for it.
– And those who shipped produce had to pay higher freights.
– This Bill has nothing to do with the prevention of strikes.
– It has everything to do with it. The last strike occurred because the men were dissatisfied with the way in which they were being dealt with by the owners. The Bill will enable the Government to deal effectively with combinations. Every branch of industry suffered through the coal strike. The object of the measure which I introduced in 1906 was to enable the Government to deal with strikes and combines.
– The honoraole member is mixing matters.
– I am not. The Newcastle strike was the outcome of the Combine, and strikes are frequently due to combines. There was the strike at Broken Hill.
– Strikes were more frequent before the Coal Vend was formed than they have been since.
– That combination existed before the honorable member entered political life, being brought about by Sir George Dibbs, Alexander Brown, and James Fletcher.
– It broke up in no time.
– Not for years.
– It existed for ten or twelve years under Fletcher.
– Yes, and then it was re-formed. I am strongly in favour of the measure. We cannot deal with combinations out of Australia. I found, when investigating the price of imported harvesters and other machinery, that in America the manufacturers, the agents, and the railway companies were in combination, so that machines could be shipped to Australia f . o.b. at a very low price, the manufacturers being recouped by the agents and railway companies. I had a person on the spot investigating matters. We cannot interfere with the operations of combinations elsewhere, but we should interfere with those which spring up in Australia. I do not wish to touch on technical matters, because there are plenty of lawyers here who are only too pleased to air their knowledge on such subjects on every occasion.
– It is like a picnic to them.
– I wish only to . speak of the general principles of the measure. The Minister will have my hearty co-operation in getting it passed into law. It is all very well for the companies to say that the measure will result in a stoppage of trade. The Minister has shown that no stoppage of trade resulted in America when still more stringent provisions were passed. The Government should have the whip hand, so that injury may not be done to the community.
– I have no desire to assist in furnishing a picnic such as the honorable member for East Sydney referred to. In my’ opinion, the House is under an obligation to the Attorney-General, and the honorable members for Angas and Darling Downs, for the manner in which they have presented both sides of this case, which involves many technicalities necessary to be placed before the House. Without travelling over the same ground, I wish to say that we, on this side, are united in desiring to make our anti-trust legislation as effective as the situation demands, though we suggest that, before amending or adding to the present law, a reasonable case, should be made out. The honorable member for Hume was largely instrumental in passing the Act of 1906, which provides that persons entering into a contract or combination with intent to restrain trade or commerce to the detriment of the public will be guilty of an offence. Three elements are necessary to constitute an offence : combination, intention to restrain trade, and detriment to the public.
– The Minister stated that the Act cannot be enforced.
– Hardly any honorable member would say that all organizations of trade and commerce should be suppressed. There must be something offensive about them, something injurious to the public, to justify interference with them. With great respect to the Minister, I would point out that, up to the present time, there has not been a breakdown of any prosecution founded on the imperfections of the existing legislation.
– There has been a stoppage.
– I do not know that there has been any actual stoppage. The Attorney-General will inform the House that no prosecution has failed because of any imperfection in the present law.
– He told me the other day that there had been such a failure.
– I do not think that any combination carrying on operations in restraint of trade to the detriment of the public could escape because of the inability of the Crown to prove that fact. I can-‘ not speak with the same amount of official knowledge that those who have held office as Attorney-General possess, but one would think that if there is in Australia any great combine carrying on operations in restraint of trade it should not be difficult to prove that fact. Consequently it would scarcely be difficult to prove the existence of a combination which was detrimental to the public. I would point out to the honorable member for Hume that the law as introduced by the Ministry of which he was a member is more effective in the way of providing for evidence in support of these legal campaigns against trusts than is the American law. Here we have placed in the hands of the Comptroller-General an extraordinary instrument for crossexamining the officers of combines. Questions may be put to them and access may be had to their documents to obtain any proof that may be in their possession. That is a most important feature of our anti-trust legislation which differentiates it altogether from what, at all events, was the American law before the authorization of the Bureau of Combines.
– The honorable member knows that some important procedure amendments are suggested, showing that in our opinion the law as it stands does not go far enough.
– I am not going to offer any hostile comments upon any improvements, in the way of procedure, to facilitate proof. The chief criticism relates to whether any amendment is necessary in connexion with the dominant section creating offences. It is almost impossible to think that the existence in Australia of a strong combination in restraint of trade could not be proved by its open or overt acts or by access to its documents. The Attorney-General has power practically to go into the enemy’s camp - to enter the office of a combine and to demand production of its documents in order to ascertain whether or not it is carrying on operations that may be shown to be in restraint of trade.
– Could that be done with the Shipping Combine?
– Yet the prosecution has failed in that case.
– It has not.
– What about Appleton’scase ?
– The decision of the Court in that case related only to corporations within a State. That case has nothing to do with the main prosecution against Huddart, Parker, and Company, or failure to answer questions in relation to Inter- State trade. I would draw attention to the weighty comments that have been made by the honorable member for Angas and the honorable member for Darling Downs as to the effect of the proposed elimination of these words from the principal Act. The effect will be that we shall condemn practically every combination in restraint of trade whether it is to the detriment of the public or not. Surely no honorable member wishes to penalize and to put down all combinations that may be in restraint of trade, although some of them may be beneficial to the public. The present Attorney-General, during the coal miners’ strike in New South Wales, was reported in the press to have said that the operations of the Coal Vend, which regulated the output and also the price of coal, might be, in certain circumstances, beneficial, and not injurious, to the public. He pointed out that it might be beneficial to prevent cut-throat competition - that cutthroat competition might be ruinous to the industry and injurious to the working classes. If prices are brought down, wages must be brought down. It is not true that all combinations in restraint of trade are to the detriment of the public.
– Under the amendment which has been circulated, it will be a good defence to show that a combination is not to the detriment of the public.
– But the Bill, as introduced, proposed to penalize combinations of all kinds in restraint of trade, whether they are for the benefit of the public or not. The amendment which has been circulated shows that, in the form in which it is introduced, the Bill is unwise and injudicious. The honorable member for Darling Downs made a quotation from ex-President Roosevelt’s manifesto to the people of America, in which he pointed out that, under the Sherman Act, which we are now asked to copy, all combinations could be put down. Mr. Roosevelt urged that it was unfortunate that the law pro hibited all combinations, and he suggested an amendment to permit of combinations in the interests of the public. We must have some tribunal to decide what combinations are beneficial and what combinations are injurious to the public, and that tribunal must be either the High Court or an Inter- State Commission. Whilst not acquiescing in the view that any amendment of the existing law has been shown to be absolutely necessary, I do not wish to object to reasonable amendments that have been proved to be necessary, more especially in view of the modification of the more drastic proposals which is contained in the amendment that the AttorneyGeneral has circulated. That amendment will, no doubt, largely do away with the force of objections founded upon the unqualified form of the principal clause as it stands. It is now proposed that it shall be a defence to a prosecution against a combination in restraint of trade to show that that combination is not to the detriment of the public, and that the restraint of trade and commerce is not unreasonable. If the Bill be so amended, it will Be open to the Court to consider the element of reasonableness, and, therefore, so far as that matter is concerned, I do not think that there will be any serious objection from this side of the House. There will certainly be objection, however, to the extraordinary penal clauses to which attention has already been drawn. It is now proposed to provide for a penalty of £500 in respect of every day during which art alleged offence in restraint” of trade continues. Surely that provision is not to be retrospective.
– In regard to offences, certainly not.
– It has been suggested that, in the case of combinations that have been in operation for a longtime, a penalty of£500 per day during the whole term of its existence might beimposed. I wish to know from what datethe imposition of this penalty will apply?
– From the date of thepassing of the Bill.
– Will combinations be penalized in respect of the period during which they have been in existence prior tobeing pronounced detrimental to the public? Are they to be liable to a fine of £500 per day in respect of the term duringwhich they have been carrying on business; before being declared by the High Court to be illegal?
– Certainly they are. If, after the passing of this measure, there is any combination which isfound to be illegal, then, from the date from which it has committed the offence of which it is found guilty it will be liable.
– One would think it would be sufficient to restrain them after they had been found to be illegal. Some combinations might think that they were perfectly legal, and there must be a legal determination before they can know to what extent they are liable. I hope that the Attorney-General will consider these points, and decide that combinations shall not be penalized for acts of omission or commission which they may have considered innocent before they were held by the Court to be otherwise.
Question resolved in the affirmative.
Bill read a second time.
Sitting suspended from 1 to 2.30p.m.
In Committee :
Clause 1 agreed to.
Clause 2 -
Section four of the Principal Act is amended -
Amendment (by Mr. Hughes) proposed -
That the following new paragraph be added : -
by adding at the end of the section the following sub-section : - (3.) It shall be a defence to a proceeding for an offence under paragraph (a) of sub-section (1.) of this section, and an answer to an allegation that a contract was made or entered into in restraint of, or with intent to restrain, trade or commerce, if the party alleged to have contravened this section proves -
that the matter or thing alleged to have been done in restraint of, or with intent to restrain, trade or commerce, was not to the detriment of the public, and
that the restraint of trade or commerce effected or intended was not unreasonable.
.- Do I understand that this clause will prevent the dumping of European goods exported to Australia at the end of the European season? We know that our season follows the English season, and that this dumping takes place.
– This clause does not interfere with the sections of the Act which relate to that matter, and which, I think, are sufficiently strong, providing we have the necessary constitutional power.
– It will be remembered that this question has been raised on ‘ previous occasions, and that prosecutions fail because guilty intent cannot be proved. The Attorney- General will admit that Bills are introduced so rapidly that neither he nor honorable members can very well keep pace with them. All I desire to know is whether this Bill will prevent the Act being the farce that it has been up to the present. It is impossible to prove the guilty intent of persons at the other end of the world ; and I should say that the fact that English goods are sold at 50 per cent. under their cost price should be sufficient to disclose an offence.
– The honorable member is quite right in his contention, but this clause does not deal with that matter.
– I am merely asking the Attorney-General to see whether the law cannot be enforced in such cases.
.- The proposed amendment is certainly an improvement ; and it is almost a pity that the AttorneyGeneral did not make the Bill identical in its terms with the section of the Sherman Act, which is confined to contracts “in restraint of,” and not, like the Bill, extended to contracts “in restraint of or with intent to restrain.” In the next subclause the words “to the destruction or injury or “ are added; and I am not sure that the context is perfectly clear. Does it mean the injury or destruction of an industry which is deemed to be advantageous to the Commonwealth? Then, does “unfair competition “ qualify “ with intent to destroy or injure,” or the whole of the clause as it now stands? I am not at all sure that it qualifies “ destruction or injury of,” and if it does not, no matter how slight the injury may be, it will be an offence for which these heavy penalties are imposed. “ Unfair competition “ is defined in another clause, and includes, for instance, competition probably resulting in inadequate remuneration of labour - not the actual result, but the probability - or probably resulting in the creation of substantial disorganization in Australian industries, or throwing workers out of employment. That does not mean the substantial throwing of workers out of employment, and so forth, but the mere probability ; in other words, if there is a combination, probability will constitute an offence. If we strike out the words “ unfair competition “ from the first part of the clause as it will stand as amended - that is, as a qualification of “ destruction or injury of “ - then any injury that may be done, no matter how slight, will be an offence within the meaning of the Bill. The question of intent is not involved in sub-clause b, but only in sub-clause a; butsub-clause b, as it will be construed, will mean that if there is a combination between two or more in relation to trade and commerce, which results in injury, not necessarily of the kind mentioned, but an injury to an Australian industry, that competition will be penalized. If that is the construction, as it may be, we certainly shall be placing an uncalled-for restriction on combinations which are not to the injury of other people. I do not know whether it is intended to go so far.
– I think the clause goes no further than is intended or necessary. Section 4, as a whole, aims at two things. It declares all restraint of trade illegal.
– Reasonable or unreasonable?
– All restraint of trade; that is to say, any person who restrains trade is acting illegally. Then, any competition which may not have the effect of restraining trade, but which may, conceivably, have the effect of stimulating trade, will, if it be unfair competition, and, in addition, to the destruction of, or with the intent to destroy any Australian trade the preservation of which is advantageous to the Commonwealth, be illegal. First of all, we have the plain prohibition of any restraint of trade - that is to say, the common law of England, generalized with those reservations which have been attached to it in the long series of judgments - and then we have the rule as to unfair competition that does not, in effect, restrain trade directly and approximately, but ultimately has that effect. Unfair competition, I take it, is the first stage in the march of the combine. First, by unfair competition, the relatively small traders are crowded out, and then the combine begins operations on the public; and this clause catches it in the first stage of its existence.
.- The amendment, I think, removes a great deal of the objection which gave rise to the numerous petitions of which the AttorneyGeneral has complained. The Bill as originally drafted, without this amend ment”, was most alarming. Under it people engaging in beneficial combinations might have been subjected to grave penalties. I have no great objection to the clause now, except as regards the penalties. It is not right to increase them before they have been tested and proved to be inadequate. If the penalties provided for in the existing Act had broken down there would be a reason for increasing them. I hope the Attorney-General will take that matter into his serious consideration. Honorable members opposite are very touchy if we suggest thatany class of legislation is proposed in a vindictive spirit, but let them consider whether this legislation does not come within that category. The Bill suddenly raises the penalties enormously and makes offences indictable and punishable by imprisonment. Is not that a most arbitrary proceeding? I am very much afraid that some ignorant, and perhaps innocent, people may commit an offence from day to day under this legislation, and suddenly find themselves liable to very severe punishment. The penalties are now my only real objection to the Bill. I desire as much as does anybody in this Parliament to see a stop put to nefarious trading practices and hurtful combines.
– Is the honorable member considering the effect of the amendment as well ?
– I think the effect of the amendment is entirely for good, as it defines the offence and eliminates the likelihood of people who are embarking on a beneficial combine, as the AttorneyGeneral himself has admitted is possible, being convicted.
.- I hope the Attorney-General will not listen to the solicitations of the honorable member for Fawkner regarding what he considers excessive penalties.
– The existing penalties have not broken down.
– Most of our laws are so framed as to make the punishment as drastic as possible, in order to prevent people committing the offences which are aimed at. That, as a general rule, is what makes them effective.
– Quite the reverse. People used to be hanged for sheepstealing.
– The honorable member is going to extremes, but he forgets all the civilizing and improving influences due to the spread of education and Christianity. This morning’s papers contain a striking instance of the imposition of penalties in New Zealand. A certain firm were fined about a month ago to the extent of about £11,000 for evading the land and income tax of New Zealand for the year 1906-7. They were fined again yesterday another £10,000 for an offence for a subsequent year, and I believe a charge for a third year is pending. In all they have already had to pay about ,£20,000 ; but I suppose the honorable member for Fawkner if he had been in the New Zealand Parliament when the Land and Income Tax was being passed, would have objected to those penalties as being altogether too drastic.
– I should not have done any such thing.
– The result proves that even with those heavy fines facing them certain people are prepared to evade the law in order to pocket more money. We ought to make the fines as heavy as possible to prevent people evading this law.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 3 agreed to.
Clause 4 (Monopoly).
.- I should be glad if the Attorney-General would explain the effect of the clause. It cuts out from section 7 of the principal Act the words “ with intent to control to the detriment of the public the supply or price of any service, merchandise, or commodity.” That leaves section 7 of the principal Act as follows : -
Any person who monopolizes, or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, is guilty of an indictable offence.
Consequently, the mere fact of monopolizing trade becomes an offence. I have tried to see if it is possible to get some legal definition of what “ monopoly “ means. When “ monopoly “ was combined with the words “ to the detriment of the public,” it suggested a person getting control of the whole source of supply or sendee with the intent or with the actual effect of doing some injury to the public. But this alteration of the law gives a very different result. I presume that the Attorney-General, having deliberately omitted those words from the principal Act, has some idea as to the circumstances to which the Act, as amended, is to apply. To this accusation there is no defence allowed. The mere fact of a monopoly is taken to mean something injurious. Even if a person could say, “Although I have a monopoly, there is in it nothing unreasonable or detrimental to the public,” that could not be regarded as a defence such as is provided for in paragraph a of the amendment which we have just added to clause 2.
– The intention of this section is to deal with combinations, or persons whose restraint of trade has overstepped the bounds which section 4 of the Act, as amended, contemplates, and whose control of trade amounts in fact to a real and substantial monopoly. I admit that it would be absurd and monstrous to attempt to apply the full technical rendering of the term. As I said when dealing with the Constitution Amendment Bill, a man carrying mails under contract,, or a man who was the only baker or butcher in a particular township, might be regarded as having a monopoly, but I take it that it is for the Court to define the offence upon a broad and general construction of the Act. Clearly, the Act contemplates such a restraint of trade under this section as amounts in fact to something which in its nature is dangerous to the public. I take it, therefore, that the monopoly must be substantial both in character and volume. Although the words “ to the detriment of the public “ are to be struck out, it is impossible altogether to abstract, from the consideration of whether any par- *ticular person or combine has a monopoly, the question of what effect the monopoly has. It is exactly the same as the question of an industrial dispute. A dispute between me and my employer ‘does not concern anybody outside ourselves, but when a considerable number of men are involved, the matter assumes a different aspect. So long as I administer the Department, my intention is to proceed only in cases of such flagrant misuse or abuse of the trading opportunities that are available to the people of this country, as creates, or might create, a dangerous condition of things. Upon a general construction of the Act by the Court, “ monopoly “ would be defined to be something very much more than a technical monopoly. It would have to be a monopoly whose volume was substantial, and whose operation would, in fact, threaten or endanger the public.
.- Before the Attorney-General had circulated his amendment of clause 2, amending section 4 of the principal Act, the only amendment I had any idea of moving in connexion with this Bill was a similar one to be extended to section 7, as well as to section 4 of the principal Act. On looking closely into the matter, however, I saw that there might be some justification for confining the amendment, as the AttorneyGeneral has done, to paragraph a of section 4 of the Act. Under the monopoly section, the Crown will have to prove that there is a monopoly, or that there is an attempt to monopolize. I have made a note that in America it has been held that there must either be a monopoly which really excludes effective competition, or a combination or attempt of some sort the necessary result of which would be to give a monopoly. They condemn the attempt on the ground that if it is not stopped the necessary result of it will be to create a monopoly, and so they nip the thing in the bud. It seems to me now, on fuller consideration, that to allow a defendant under section 7 to set up as an explanation that the monopoly is not to the detriment of the public would simply be to give him permission to rebut what the Crown has to prove. It would, therefore, be no advantage to the defendant to tell him he can set up that defence, because the Crown cannot establish the existence of a monopoly unless it shows that those facts exist.
– I went into the matter very carefully.
– I am sure the honorable member must have done so. Some writers in America say that it is impossible to define “ monopoly.” A writer in the Harvard Law Review, to whose article I have already referred, says that Parliament should not attempt to define monopoly, but should allow the Court to be guided by the principles which it lays down to decide in every case whether there is or is not a monopoly.
Clause agreed to.
Clauses 5 to 7 and title agreed to.
.- Clause 6 omits from section 10 of the principal Act the words “to the detriment of the . public.” No doubt the AttorneyGeneral is not likely to institute proceedings without cause, but as the law now stands it would be possible for him to get an injunction against any contract in restraint of trade, irrespective of whether it is reasonable or unreasonable, or detrimental to the public, or the reverse. I ask him to consider the advisability of allowing the defence to be made that the contract is not to the detriment of the public.
– It is impossible to go further.
Bill reported with an amendment.
Standing Orders suspended, and Bill passed through its remaining stages.
Bill returned from the Senate, with amendments.
That the Senate’s amendments be taken into consideration forthwith.
– I move -
That the amendments be agreed to.
The amendments are not of an important character. The schedule of rates has been amended by leaving out the words “ published and,” relating to Australian books, so that the benefit of the rate which we have established will be enjoyed by books printed in Australia, whether they are published here or not; and a further preference has been given to such books by increasing the weight which may be posted for½d. from 2 ozs. to 4 ozs. The other amendment is immaterial.
Motion agreed to.
Bill returned from the Senate, with amendments.
That the Senate’s amendments be taken into consideration forthwith.
– I move -
That the amendments be agreed to.
The Senate has amended the Bill by inserting the following clause - 9A. Section ten of the Seat of Government Acceptance Act 1909 is amended by omitting the proviso thereto, and inserting in its stead the following proviso : - “ Provided that, in determining the compensation to which the owner is entitled under that Act, the value of the land shall be taken not to exceed the unimproved value of the land, or the interest therein of the owner, on the eighth day of October, One thousand nine hundred and eight, together with the value of his interest in the improvements on the land at the date of the acquisition of the land.”
The second amendment is the substitution of the word “thereupon” for the word “ therefor “ in clause 3.
Motion agreed to.
– I move -
That this Bill be now read a second time.
I have taken charge of this measure in the absence of the Postmaster-General. It amends the existing Act in two particulars, and had the honorable member for Bendigo remained in office it would probably have been introduced by him. The first amendment is to enable the Department to exercise a power which they thought they had under section 97, but which the High Court ruled that they had not, to prohibit the issue by private persons of telephone lists purporting to be official. The case arose out of a complaint by a Newcastle subscriber that, owing to the publication of a list in which the number of a livery stable had been wrongly placed opposite his name, he was called upon at all hours to answer calls which were not for him. Regulation 1 26 a was thereupon issued, forbidding the publication of any but official lists, but the High Court ruled that the Department had not power to make such a regulation. The second amendment is intended to reduce the penalty for interference with telegraph lines ‘and insulators, which is now an indictable offence, a fact which makes the Department reluctant to proceed against boys who are at times guilty of it. The provision of section 133 is that -
Any person who negligently breaks or injures any post, cable wire, insulator,or material belonging to or used in connexion with any telegraph shall be liable to a penalty not exceeding £5.
As honorable members are aware, the Post and Telegraph Act was passed as far back as 1901, and the Crown Law Department find that the drafting is not exactly what it would be if it were being passed to-day. Towards the close of section 97 it is declared that the Governor-General may make regulations for all other matters and things which may be necessary for carrying out this Act or for the efficient administration thereof.
That provision is to be omitted, and the subject with which it deals will be covered by the proposed amendment of the opening sentence of the section. These are practically the only alterations to be made.
.- I think that this Bill will be found to be both useful and necessary in the interests of the administration of the Department. It may be divided into three parts. In the first place, it defines the power of the Department to make regulations for the execution of postal laws; secondly, it provides against the publication of unauthorized telephone lists ; and, thirdly it deals with the breaking or damaging of telegraph posts or wires. The main object of the Bill, however, is to be found in the last two provisions. Clause 3 provides that any person who without the authority of the Postmaster-General prints, publishes, or circulates any list of telephone subscribers shall be liable to a penalty. I found when I held office as PostmasterGeneral that in actual practice some amendment of the law was necessary in order to secure, as well as to define, the. rights of the Department. The Department issues telephone lists, and it is responsible for their preparation and accuracy in the interests of subscribers and the public generally. It also makes arrangements to defray the cost by accepting advertisements for publication in the lists, and the receipts from these advertisements have proved to be an important source of income. After these official lists. have been published, outsiders have poached on the rights of the Department, and published copies, thus infringing the rights of those who have paid for the advertising privileges. The High Court held that the Department had no exclusive right to issue these lists, and arrangements were made to copyright them. It seems, however, that the facilities for copyrighting them would not be so convenient as would direct statutory power in this connexion, since a copyright would have to be applied for in respect of every list issued. It is’ therefore proposed that there shall be statutory protection, and I commend this provision to the favorable consideration of the House. Another useful clause provides penalties for breaking or damaging telephone posts or wires, such penalties to be recoverable on summary jurisdiction, instead of by the roundabout process of committal for trial before a jury.. Honorable members will perhaps be surprised to learn that an enormous amount of damage is done to public property in Australia month after month, and year after year, by people who have no regard for that in which they themselves have really a direct pecuniary interest. It is deemed desirable, therefore, that the law providing for the prosecution in respect of such offences should be more complete - in other words, that there should be the swifter and more effective system of justice provided by summary conviction. Care is taken to guard against juvenile offenders being harshly dealt with under this clause, and to provide that only those who have been guilty of wilful neglect or unlawful acts coining within the meaning of these provisions shall be dealt with by summary jurisdiction. I hope that this Bill will be passed.
Question resolved in the affirmative.
Bill read a second time, and reported without amendment.
Standing Orders suspended, and Bill passed through its remainingstages.
House adjourned at 3.23 p.m.
Cite as: Australia, House of Representatives, Debates, 11 November 1910, viewed 22 October 2017, <http://historichansard.net/hofreps/1910/19101111_reps_4_59/>.