3rd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– In pursuance of oral notice which I gave to the VicePresident of the Executive Council yesterday,I beg to ask him if he will confer with his colleagues to see whether an arrangement cannot be made to send up to the Senate for its consideration any groups of items in the Tariff which may have been dealt with in another place ; that is, to send up the Tariff in divisions or sections? I also ask my honorable friend if he. does not think that we ought to let the public know as soon as possible what the duties on various items are to be? If we do not expedite business, we shall be asked to come back early next year, practically to hold another session, and any proposal of that kind I shall oppose. I hope my honorable friend will be able to give me an assurance that this matter will receive the attention of the Government.
– On a former occasion I sought to indicate to my honorable friend that the Government were distinctly in favour of sending up the Tariff in sections with a view to its more expeditious passage. If that is practicable it will be done.
– It seems to me that it can be done if there is a desire to do it.
The PRESIDENT laid upon the table the following paper : -
Report from the Joint Library Committee.
MINISTERS laid upon the table the following papers : -
Swiss Military System - Report compiled by Colonel W. T. Bridges, R.A.A., Chief of Intelligence.
Excise Act1901. - Sugar Regulations - Statutory Rules1907, No. 101.
Motion (by Senator Keating) proposed -
That the report be adopted.
Senator Colonel NEILD (New South Wales) [10.35]. - I only rise, sir, to submit for your consideration, and that of the Standing Orders Committee, a question of parliamentary practice, as I think it may be more convenient to take this course than to raise it definitely at another time. It is with reference to the power exercised by the Senate to amend Bills in the Chamber after they have been reported from Committee of the whole. If our practice was analogous to that of the House of Commons - and I propose briefly to show that we ought to have the same power - it might be that this morning an honorable senator would propose an amendment to correct something which he might regard as an anomaly in this Bill. I do not know that such is the case, but I have risen to show what is the power exercised by the House of Commons in that regard, and with a view to the question being considered by yourself and the Standing Orders Committee, if they think well. Briefly, I submit that our standing Order, which apparently prevents any such action, is ultra vires of the Constitution, because section 49 gives to each House of the Parliament the powers, privileges, and im munities of the House of Commons. It is a power of the House of Commons to amend a Bil], after it has1 been reported from a Committee of -the whole, and that I am not wrong in that view is, I think, shown by your . own ruling from the Chair on the 19th September last, in which - it is reported on’ page 3505 of Hansard - you said that the powers privileges and immunities of the Senate are laid down in the Constitution, and “ can only be varied by legislation, that is, to use your own words, “by legislation passed by both Houses “ - the phrase of the section being “ shall be such as are declared by the Parliament.” You went on to say that -
Our privileges having been clearly laid down we cannot extend them until Parliament sees lit to legislate in the direction.
I submit, sir, that if we cannot extend them we cannot curtail them. That seems to me a positive proposition which cannot be refuted. , I do not for a moment question the opinion which you expressed on the 19th September, that under the Constitution we possess the powers of the House of Commons until, by legislation adopted by both Houses, they have been altered. I submit, with great respect, that our standing order, which professes to curtail our right of action, is ultra vires of the Constitution.
Page 573 of the 9th edition of May the following passage, which I may say appears in the later editions :-
When the Bill, as amended by the Committee,’ is considered, the entire Bill is open to consideration, and new clauses may be added and amendments made, whether they be within the scope and title, or even relevant to the subject-matter of the Bill or- not. The vicious practice of adding provisions to Bills, quite foreign to their object, which was formerly not uncommon, is now very rarely tolerated ; but the House has not imposed any formal restraint upon its own discretion, in admitting whatever amendments it may think proper, though not within the title, which may be afterwards amended, on the third reading.
There another point of practice crops up. Under our standing order we cannot amend the title of a Bill on the third reading, yet the House of Commons does it, and we profess, under the Constitution, to enjoy the powers of that House. This is the particular part to which I ask the attention of honorable senators -
The House may exercise, directly, the same power which it sometimes grants to Committees, by way of instruction. Thus, on the nth July, 1853, on the third reading of a Stamp Duties Bill, an amendment was made, providing that drafts on bankers payable to order should be sufficient authority for payment, without proof of endorsement.
At page 575 we read -
It often becomes necessary to recommit a Bill to a Committee of the whole House.
Of course that is our practice. ‘ At page 49 of his very valuable work on later Commons practice, Mr. Blackmore states one of the New Rules in these terms -
When the Order of the Day for the consideration of a Bill as amended has been read, the Bill is considered without question put; and unless an honorable member has an amendment to propose on the consideration of the Bill, or the member in charge desires to postpone its consideration,- or a motion be made to recommit the Bill, Mr. Speaker calls on the member In charge to fix the date for third reading.
That is’ a decision given by Mr. Speaker Brand on the 30th of July, 1883, in connexion with the Parochial Charities Bill!
Senator Best is making. This is not a question of the possession of power, but of the administration of power.
The subject-matter of a Bill may be raised on the report, and an amendment may then be made, which, if adopted, would necessitate an alteration of title.
University Tests Bill, Vol. 202, page 1386 - July 4th, 1870.
This is the entry -
Consideration. Order for consideration read. Amendment proposed.
Sir Roundell Palmer asked Mr. Speaker whether the amendment proposed would come within the title of the Bill. Mr. Speaker, “’ The whole question introduced in the subjectmatter of the Bill may be raised on the report.”
Under the circumstances the honorable member would have power to move such words, although, if adopted, they would necessitate an alteration in the title of the Bill.
There is another case recorded by Blackmore at page 50 -
Power of House as to amendments. The power of the House in regard to amendments is much greater than that of the Committee of the Whole.
Clearly that is the strongest evidence of power under the Standing Orders of the House of Commons. The power of the House is greater than the power of the Committee. Under our Standing Orders the reverse seems to be the position.
Land Law (Ireland) Bill - July 26th, 1 881. Further proceedings on consideration as Amended resumed. When, upon objection taken to an amendment as analogous to an amendment ruled out of order by the Chairman of Committees, Mr. Speaker ruled ut supra. That is a Brand decision. I will quote one other case from Blackmore, page 51 -
Notice of amendments to clauses not necessary. Bankruptcy and Insolvency Bill, clause 253. Sir Hugh Cairns proposed an amendment to insert words. Mr. Crawford asked Mr. Speaker if that were competent no notice of intention having been given. Mr. Speaker ruled that the honorable and learned member was in order as it was an amendment and not a new clause. February 22nd, i88r.
In bringing this matter forward I dp not ask for any ruling from you on the point. I do not propose to take any action to delay the passage of the Bill. I have simply thought it convenient to raise this question, which must be of considerable importance, because if I am right, it would simplify our procedure a great deal, inasmuch as it would not be necessary to go through the process of recommitting a Bill to consider amendments which were not of very much importance. I have raised the point at a convenient time, in the hope that it may receive consideration, and so that, if my view be correct, there may be an amendment of our Standing Orders. That is my only object. I am not interfering with the transaction of Government business, or seeking to delay the passage of the Bill now before us.
– The question that lias been raised by Senator Neild is, no doubt, one of very great interest to the Senate, and it would be one of considerable importance if we were considering the amendment of the Standing Orders. I did not interfere with the honorable senator in addressing himself to the point, for the reason that I considered it to be of interest. Moreover, he could, had he seen fit, have submitted an amendment which would have required a ruling from the Chair. I thought, therefore, that it was better to give the honorable senator an opportunity of expressing his views now. I shall take the opportunity of saying what I think in regard to the point, and of indicating the difference between the contention raised by the honorable senator and the ruling which I gave the other day, to the effect that we have no power to increase or to alter the privileges of the Senate except by an Act of .Parliament. The present position, to my mind, is essentially different from the position that arose at that time. It will be remembered that the question then was as to whether a breach of privilege would occur if any trouble arose in connexion with the pak book. I then held that we had no power to determine that any alteration of the pair book constituted a breach of privilege, because we have certain privileges conferred upon us under the Constitution, and any alteration we desired to make in those privileges or any addition to them could only be made by Parliament, and not by one House’ of the Parliament. We possess the privileges which are conferred upon the members of both Houses of Parliament, and which are possessed in order to enable members of Parliament the more effectually and independently to exercise their functions. But the- case now raised by Senator Neild relates to the conduct of the business of one House of the Parliament. I take it that the conduct of the business of each House of Parliament is provided for by its own Standing Orders. It is perfectly within the competence of the Senate to pass Standing Orders governing its conduct in relation to the passage of any Bill. Privilege applies to both Houses of the Parliament, but each House of the Parliament has power to conduct its own business independently. Privilege of Parliament is conferred to enable members of Parliament to exercise their functions without fear of interference, and in one direction extends to a period both before the commencement and after the close of a session, so as to enable members of Parliament to attend in their places absolutely free from danger of arrest. These great privileges are conferred upon us under section 49of the Constitution. But in regard to the internal affairs of Parliament, each House has power to regulate its own conduct under its own Standing Orders. If one House saw fit to make a standing order to the effect that, instead of dealing with a Bill in Committee in a certain way, it should deal with the Bill in the House,Iapprehendthatitwouldbeacting within its power.
– It can do it under the special authority of section 50.
– Precisely ; and, moreover, it is an inherent power. In order that there may be no mistake about it, I will quote section 50, which provides that -
Each House of the Parliament may make rules and orders with respect to-
Portion of that business deals with the passing of Bills. There is no connexion between a question of privilege and such a question as has been raised by Senator Neild.
– I did not raise a question of privilege at all, but one of powers.
– The section which I have quoted provides that eachHouse of this Parliament may make rules and orders as to the mode in which its powers and privileges shall be exercised. Each House has power to regulate its own business. Let us see what is the position with regard to the practice of the House of Commons. The honorable senator has quoted from the 9th edition of May. I have before me the nth edition, which, at page 501, contains the following passage -
The question for the third reading may be negatived ; but as previously stated such a vote is not fatal to the Bill. In the Lords new clauses may be added and amendments made to the Bill at this stage; and the same practice formerly prevailed in the Commons ; but by standing order No. 42 verbal amendments only can be made to a Bill on the third reading. When material amendments are desirable the order for the third reading of the Bill may be discharged and the Bill recommitted to introduce the amendments in Committee.
I find that the date of standing order No. 42, referred to in that passage, is 1856 -
No amendment not being merely verbal shall be made to any Bill on the third reading.
While the power was exercised in the House of Commons at one time, as it is now in the House of Lords - honorable senators should remember that our practice must be in conformity, not with the practice of the House of Lords, but with the practice of the House of Commons - the practice of the House of Commons was alfered in that regard before our Constitution came into force. The provision in section 49 of the Constitution is that our powers, privileges and immunities shall be “ those of the Commons House of Parliament. . . . and of its members and Committeesat the establishment of the Commonwealth.” The Commonwealth was established on the 1st January, 1901, and on that date the practice in the House of Commons was not to make other than purely verbal amendments upon the third reading of a Bill- and I take it that the. stage of the adoption of the report which we have reached in this case would be similarly regarded. If we are bound by section 49 of the Constitution, we are bound by the practice which existed in the House of Commons at that date. At the same time, it is clear that it would be within our powers, if we saw fit to adopt such a course, to amend a Bill upon the third reading or adoption of report stages, but we know perfectly well that the great object of sending a Bill to the Committee for the purpose of amendment is to give to honorable senators a fuller and freer opportunity of discussion and of reply, one to the other, in order that they may beat out a clause into such a form as will be most acceptable to the Senate, and best adapted to carry out the views and objects of Parliament.
– Have you, Mr. President, observed the statement by a Speaker of the House of Commons that the powers of the House are greater in the matter of amendment than the powers of the Committee?
– The honorable senator has reminded me of a question with which I was about to deal. Of course the power of the House must be greater than the power of the Committee. The House creates the Committee, and must, therefore, be the paramount body. But the House refers matters to the Committee, not because it wants to magnify the position of the Committee, but because it is the more convenient way to determine certain questions that come before it for consideration. The House says, “ instead of adopting this plan in the House, we will go into Committee of the Whole., where we believe the matter can be threshed out much more effectively and effectually.” The Committee reports to the House, and if the House is dissatisfied with the report of the Committee, it adopts whatever course it sees fit. lt may send the Bill back to the Committee for the purpose of further consideration. There can be no question that the House is greater than its Committee, for the creator is greater than anything which it creates, and what it creates it can destroy. Senator Neild has raised an interesting question, and no exception should be taken to the fact that it has been raised, because in these early stages of our Commonwealth life, it is well that all these points should be considered, so that if it be deemed necessary to make any change in the practice which we have hitherto followed, we may have the. opportunity of doing so. I do not wish the matter to be debated at the present stage. If, however, any honorable senator will take the trouble to propose to amend the Bill at this stage, I shall be prepared to give a ruling. If honorable senators wish the question to be referred to the Standing Orders Committee they have only to express a desire that that should be done, and., of course, the Standing Orders Committee will give the matter consideration, but of course I cannot say what action they would take.
Senator STORY (South Australia) £11.5]. - Before the report is adopted I desire to ask the leader of the Government whether he proposes now, or at what stage he proposes, to make an effort to reinstate in the schedule the item of “ Tobacco leaf for the manufacture of cigars.” I understood that it was the intention of the Government to move for the recommittal of the Bill with that object. The item was about the most important in the Bill, and was left out through mismanagement on the part of the Government in allowing a division to be taken immediately after the dinner adjournment, when a number of honorable senators who intended to support it had not time to get’ back to the Chamber.
– The supporters of the item had not the numbers even if they had all been present.
– I believe that the majority of the Senate are .in favour of reinstating the item.
– I should have voted for it if I had been here.
– Look at the pairbookThe honorable senator who just interjected was paired.
– The pair-book has been found before now to be very unreliable. Have the Government any intention of making an effort’ to reinstate the item ?
– I can assure Senator Story that the Senate has not heard the last of the item referred to. I have no doubt that some other opportunity will be taken to enable the true voice of the Senate to be heard.
– The Minister’s reply is somewhat cautious. I would remind him that when I proposed the insertion of certain words, I was told by the Minister in charge of the measure that I would have an opportunity of moving the amendment later on. I take it that the Vice-President of the Executive Council means that the. Government will re-commit the Bill not only to reinstate the item referred to., but also to give me the opportunity which they promised me.
– I imagine that the enigmatical remarks of the Vice-President of the Executive Council mean that another place will not accept our amendments.
Question resolved in the affirmative.
Debate resumed from 10th October (vide page 45 1 7); on motion by Senator Best -
That this Bill be now read a second time.
Senator Colonel NEILD (New South Wales) [n. 10]. - I cannot allow this Bill to go to its second reading without a word of protest. I understand that it is not desired to take a division upon it, but I intend to call for a division, if no one else does, because I do not think “that it is a Bill which ought to be placed upon the statute-book in its present form. Here let me say how entirely I appreciate the manly, straightforward speech of Senator Stewart last night. I am going to. vote with Senator Stewart-
No person shall be excused from answeringany questions or producing any documentswhen required to do so under this section on the ground that, the answer to the question or the production of the document might tend to incriminate him ; but his answer shall not be admissible as evidence against him in any civil or criminal proceeding other than a proceeding for an offence against’ this part of this Act.
We know perfectly well that when a man. has been put on the rack in this way, and admissions have been obtained from him,, which are printed in the public press, they may prejudice his case in civil or criminal’ proceedings. Although they may not be actually received as evidence against him, if he goes into the box to give evidenceon his own behalf, he may be crossexamined on these very admissions whichhave been wrung from him by a process of” alleged legal procedure that we supposed had come to an end on the face of the earth since the abolition of the Inquisitionin Spain.
The Comptroller-General or any person named by him may inspect all books and documents produced in pursuance of this section and may make copies of or extracts from those books and documents.
So that this extraordinary power of inquisition is not confined to the ComptrollerGeneral. It is to be extended to any one he chooses to name. He may say to anybody he pleases, “ I name you to make these _ investigations.” One reads such a proposal with a sense of shock. I do not know where this kind of thing will end. We might have the principle involved in this Bill extended to the whole of our criminal procedure, and a man arrested for a crime may be called upon to prove a negative - that he did not do it. That is what is proposed here.
Senator- Colonel NEILD. - That is so. I undertake to say that if we pass this Bill, they will not get any evidence, because combinations can be carried on in a manner which will prevent the possibility of discovery. It is proper that reasonable and rational powers should be given to the Government, and I can only wonder that a year back the Government .should have brought in a Bill, which to-day they tell us is useless, when they have made no attempt to prove whether it is good or bad.
I am not at all satisfied that if this Bill were passed anything would happen under it. Possibly we shall be told in another twelve months that Mr. McKay has done something or other, and that the Government must have further time. I am not sure that I should not be perfectly justified in raising a somewhat serious point on this subject. I was informed by the Vice-President of the Executive Council yesterday that I had been guilty of the awful offence of debating a matter that was sub judice; and I want to know whether it is not the Government who should be charged with this offence, seeing that thev have introduced two Bills intended to influence the settlement of a matter that is now being considered in a law Court. One of the daily journals this morning denounces me with such heat as to make me satisfied that I must have been right in what I did yesterday. No one will take the trouble to abuse a man when lie is wrong; he is passed bv with the remark, “Poor fellow; he does not know any better.” But when a man is denounced, we know that he is right, and that the other fellow does not like it. ‘
– recognise that we must approach the consideration of this Bill with a great deal of care. So far, the debate has ranged round what may be called the charges that have been levelled against the Government in connexion with the principal Act. It has been stated that they have been guilty of sins of omission inasmuch as they have not exercised the powers contained in that Act. In my opinion, there is a certain amount of weight in those statements. I believe that the Government have been somewhat lax so far as the collection of Excise duty is concerned. It would have been better “if they had put the
Excise (Agricultural Machinery) Act in force, and collected the Excise duty from the various makers of agricultural machinery. Other statements have been made which are not altogether correct. For instance, it has been asserted, both here and outside, that the Government have taken no action under the latter Act, and that no certificates of exemption have been granted. What has been prominent in the minds of most senators has been the. case which is agitating the minds of the people of Victoria, and which is now before the Arbitration Court. Possibly, it. has escaped .their recollection that on the 1 st August, and, at my instance, a return was tabled showing that the Government bave taken action in at least one direction - that certain firms of agricultural implementmakers had applied for, and obtained, certificates of exemption.
– Order. The re marks which -the honorable senator is making, would be applicable to the Excise Tariff Declaration Bill, which was brought in yesterday, but this Bill deals with the amendment of the Australian Industries Preservation Act, and not with the collection or otherwise of Excise duty on agricultural implements.
– I may have been out of order in alluding to that matter, but I understood that, during the debate, certain references have been made to that phase of the question.
– Those references were made yesterday on the motion of Senator Keating for leave to bring in the Excise Tariff Declaration Bill.
– Various objections have been offered to the Bill now before the Senate. The provision that has been most objected to is that which vests the power to ask questions in the Comptroller-General of Customs. Those who have criticised the provision have failed to make any suggestion for its improvement. They have merely suggested that that power ‘should be vested in a Court, or in a Judge of a Court. I thing that our experience of the principal Act has taught us that that procedure has been a failure. While I should like to see in that position a gentleman who would be independent of the Government, still I think that the clause provides the only way in which the case can be met at the present time. The provision in the principal Act has proved to be a failure, and if the clause in this Bill were deleted, I think it would practically make the Bill a dead letter. If the critics of the clause had suggested any practical way out of the difficulty, I believe that I should be inclined to oppose its enactment in its present form, but I do not consider that they have suggested a better way of eliciting information. It has also been said that, in certain respects, the Bill is a travesty on British justice, inasmuch as it seeks to compel a suspected person to prove his innocence. That, I venture to say, is no new departure. I think that a similar provision will be found in certain Acts of the British Parliament. I have worked in an industry where, in the event of a man being injured or killed, the onus was laid upon the employer to prove that he had taken every precaution to avert accident.
– That is a different thing altogether.
– In that instance the employer is put in the same position as any person who may contravene a provision of this measure. But, suppose it is true that the Bill departs from the principles of British justice, it must be remembered that we have to meet trusts and combines with the weapons which they employ. Senator McColl has said that in that regard there is no analogy between Australia and America.
– Thank goodness, not yet.
– There can never be either.
– Let us assume for a moment that in Australia there are no trusts, combines, or monopolies. Does the honorable senator wish the Parliament to hold its hand until the evil in created, and has that grip of Australia which I am sorry to say it has of America? I do not believe that that is his wish. There is no denying the fact that in this young nation there are trusts and combines. It is our duty to take time by the forelock, and arm ourselves with weapons tr prevent trusts and combines from increasing and being that menace to the community which they are in America. An- casual student of the history of monopolies and trusts will know that the United States has practically been in their grip for years. It has only been the courageous attitude of President Roosevelt in attempting to grapple with the situation which has focussed the attention of the world on the question.
We know that in the Wall-street Stock Exchange there are billionaires. They make millions of dollars per annum; but within a stone’s throw of Wall Street there are thousands of people living in miserable hovels, nine, ten, and twelve in a room. Does Senator McColl desire to wait until we have such a state of affairs in Australia?
– The honorable senator is talking nonsense.
– In deference to Senator McColl’s age, I shall not reply to him as I should do if any other senator made such a statement. I do not believe that even this Bill will remedy present evils. But it is an honest attempt to cope with such evils as exist or may arise. Even in the United States several measures have had to be passed in the attempt to cope with trusts and combines. We may have to pass amendment after amendment of the Law in order to place upon the statute-book a perfect set of machinery^ This Bill is a step in the right direction. But, after all, I agree with the remarks of Senator Henderson that no matter how perfect an Act of the Legislature may be. it will not effectually cope with trusts and combines. The trend in nearly all civilized countries is in the direction of the nationalization of the industries that are the subject of such organizations. Not until nationalization be achieved shall we have a perfect remedy for the evil. At present let us utilize such means as are at our disposal. I chink the Government are taking the right step, and I shall give the Bill my support.
.- When the Australian Industries Preservation Bill was introduced last session, many of its supporters were very enthusiastic as to the good effects that would flow from it. But when attempts were made in Australia similiar to those which have been successful in the United States, to establish combines, pools, trusts and monopolies, I, in common with other members of the party to which I belong, expressed the opinion that there was only one true solution. That was that the Commonwealth of Australia should own and control the industries held by these institutions, or otherwise, in the course of years, the institutions would control the people of the Commonwealth. Since the placing of that Act upon the statute-book, matters in relation to certain monopolies, especially those concerned with1 tobacco, oil, shipping and coal, have been prominently brought under the notice of the public. I myself, on more than one occasion, have called the attention of the Government to complaints made at public meetings and through the columns of the press. There is one combination doing business in Australia that, in the opinion of those well qualified to express an opinion, is conducting its operations in contravention of an Act at present on our statute-book. The Government have been asked to initiate a prosecution. The VicePresident of the Executive Council promised me that the fullest inquiries would be made as to the manner in which the Standard Oil Company is conducting its business in Victoria. After the Government had apparently made the fullest inquiries, we were informed that the present Act would not enable them to prosecute successfully.
– Is the honorable senator affirming that?
– No; the Government have done so. Senator Millen, when speaking yesterday, made some general remarks in respect to combinations. Incidentally, he said that he was satisfied that if prosecutions were initiated under the present Act, and the Government were in earnest, they should issue fifty subpoenas. He stated that out of the number thus subpoenaed there would be at least some who would candidly admit that they had signed agreements in contravention of the Act, and that, therefore, evidence could be obtained which would enable the Government to carry the prosecution to a successful issue. Now, I venture to say that if the Government adopted that course, and brought men to Court to prove their own innocence, the first to make complaint would be Senator Millen. He would say that the Government had done wrong in taking such drastic steps as to subpoena citizens in order to establish the Government’s case.
– I did not say anything of the kind. The witnesses to whom I referred were not to be proceeded against.
– But the honorable senator recommended that they should be brought to Court.
– As witnesses to substantiate a case; and I would say that if necessary, not fifty, but 250 should be subpoenaed.
– If the Government brought 250 business men into a Court of law, in order to help them in their desire to prosecute a combination, Senator Millen would be one of the first to make strong complaint against such an action.
– The honorable senator has no right to say that, in view of my attitude regarding anti-trust legislation and Government action.
– I must say that when we were dealing with the Act last year, and with other matters affecting trusts this session, Senator Millen did express strong opinions in regard to combinations and pools.
– He is a much better worker for Socialism than he knows.
– If Senator Millen will pardon me for saying so, the attitude that he took up yesterday and on previous occasions with regard to combinations, particularly the Coal Vend, has considerably strengthened the Labour Party in the attitude which they have assumed for a long time past.
– The difference is that I think that an Act can be framed to control these combinations, whereas the honorable senator’s party does not.
– I do not know that any Act can be framed to prevent the growth of these institutions. Combinations are economic developments. They exist in free-trade countries as well as in protectionist countries. They are an inevitable result of the evolution of the capitalistic and competitive system. You can no more stop the growth of monopolistic institutions by an Act of. Parliament than you can stop the rising of the sun.
– Unless we destroy our industrialism altogether. ‘
– Unless we destroy our industrialism. I ami very much surprised at the attitude of Senator Stewart. There is no one who condemns monopolistic institutions, whether they concern industry or land, more than he does.
– Ah, but he likes justice !
– His first care should be to secure justice, not for the combinations and those who are profiting from them, but for the general public and the common weal. As for British fair play, have the members of these combines any sense of fair play, British or other?
They have one desire, and that is to eliminate all competition and secure an absolute monopoly in respect to the commodities lhat they dispose of. I do not agree witih those who imagine that there are beneficent monopolies. All privately-owned monopolies are, in my judgment, inimical to the common weal. A monopoly can never be otherwise, unless it is co-operatively owned.
– Are there not honorable and fair combines?
– If to be honorable and fair is to wipe out all competition, some of them are honorable enough. They do not believe in fair competition. Can anyabody, by any stretch of imagination, say that the competition between a small man and a gigantic combination is fair?
– Competition knows no fairness.
– Competition only succeeds by unfairness. It only succeeds by what I may call a system of commercial cannibalism, by the big men eating up the small men’ in business.
– Competition succeeds only by wiping out competition.
– Yes. Some honorable senators opposite are extremely anxious that many of the practices of these combines should be stopped. How are they “to Le stopped? There seems to be a difficulty in preventing their operations under the present law. Consequently, the Government propose that a certain course shall be adopted. Because they propose to follow the course laid down in our Customs Act, exception is taken by those who strongly supported that A’:t. We are told that any Dick, Tom or Harry will be able to place- business men in such a position that the whole of their business might be exposed, and serious wrong done to them. I do not think that anything like that will happen. Under proposed new section 15c, clause 4 of the Bill, it is provided that -
Whenever a complaint has been made in writing to the Comptroller-General that any person or any foreign corporation or any trading 01 financial corporation formed within the Commonwealth has been guilty of any offence against this part of this Act, the ComptrollerGeneral, if he believes the complaint to be well founded, may, by writing, require any such person or foreign corporation or trading or financial corporation or any member, officer, or agent of any such corporation, to produce and hand over to him or to some person named by him all books and documents relating to the subject-matter of the complaint and all books and documents of any kind whatsoever wherein <any entry or memorandum appears in any way relating to the subject-matter of the complaint.
I have sufficient faith in Government officials to believe that they would not take serious notice of a complaint made in writing by any individual unless it was well founded. If it was, the ComptrollerGeneral, vested with these powers, would make the fullest and most careful inquiry, and would then report to the Ministerial head whether, in his opinion, a prosecution ought or ought not to be initiated. If that course is followed, endless trouble and unnecessary expense will be avoided. The difficulties now existing in the way of successful prosecution comprise not only the obtaining of evidence, but the large expense involved. If Senator Stewart’s suggested amendment is carried, the Government will be no better off with this Bill than they are to-day with an Act which they find to be inoperative.
– Why not?
– Because of the difficulties in the way of obtaining the necessary evidence to successfully prosecute those who are carrying on business in contravention of the existing Act.
– Could not that evidence be got before a Judge?
– Judges are not appointed to procure evidence. Their duty is to hear a case, and the evidence tendered in connexion with it.
– The party who accuses a combine of having broken the law ought, surely, to be compelled to produce his evidence.
– The honorable senator wants the person who accuses a combine of carrying on its business in contravention of the Act to appear before a Court and to give evidence before a Court.
– The honorable senator is making a very serious mistake if he wishes this measure to be operative, and to benefit those who to-day are being seriously affected by the operations of combinations.
– He wants the Court to collect the evidence, and then to hear the evidence.
– Who ever heard of a Court getting all the evidence necessary for a prosecution ? If Senator Stewart is so strong in his condemnation of this proposal, how is it that he never objected to the similar provisions embodied in the
Customs Act? Every day Customs officials are conducting inquiries under the Customs Act with regard to persons who are alleged to have done something in contravention of it. If those inquiries were not fairly conducted, or the decisions arrived at not based upon justice and fair play, alterations would have been sought in the Customs Act long since.
– The Customs Act would be unworkable but for those provisions.
– It -would ibc absolutely unworkable. The main object of this Bill is to give the Government, in connexion with the Australian Industries Preservation Act, powers similar to those embodied in the Customs Act. If Senator Stewart wants to get at these combinations, some of which are getting at the public in a manifestly unfair way, he is not proceeding on right lines to accomplish the object which he and others have in .view. Immediately after the passing of the principal Act, the Standard Oil Company, which has for a considerable time been carrying on business in Australia, and granting rebates to its customers, ceased issuing agreements, and to-day it would be well nigh impossible to obtain in any of the States a written agreement issued by that company. Knowing as we do that these people, who are without doubt violating the provisions of the principal Act. are making every effort to shield themselves, why should we hesitate to give what may be considered drastic powers to the Government in order to stop the operations of institutions that are inimical to the interests of the Commonwealth ?
– What prevents the Government from collecting the Excise duty under the Excise Tariff (Agricultural Machinery) Act?.
– That is another matter altogether. Of course, I have no sympathy with this or any other Government who fail to do their duty in carrying out an Act for the collection of Excise or Customs revenue.
– This Bill is a pretext - an excuse for delay.
– The honorable senator makes that assertion, and Senator Neild, who condemned the measure in violent language, and desired to impress honorable senators with) the seriousness of the course which the Government were attempting to pursue, alleged that if the Bill became law it would do a hundred and one things, but was satisfied, before he sat down, that if it did become law it would do no good, because the Government would not put it in motion. ‘ He said, first of all, that if it became law it would do certain things, and in the next breath alleged that it would do no harm, because it would not be enforced.- I am satisfied that the Government are earnest and honest in their desire to reach those combinations in Australia which are carrying on their businesses in contravention of the law. Having taken some interest in the question of the operations of certain combinations, I know that the Crown Law authorities have, for a considerable time, been active in their desire to prosecute persons who, in the opinion of many, are acting in contravention of the Act.’ But some of those officers have told me that they have not sufficient power under the Act.
– To collect Excise?
– I am not dealing with the Excise. In order that they may be vested with sufficient power, they, and the Government, desire an amendment of the Act. I believe in the Bill absolutely. I believe that if it is carried it will prevent in Australia many of the evils that have grown up in America. I do not want to wait until the evils attain their full growth. They do exist in Australia to-day, but to a limited extent. Wherever encouragement is given to their growth, we know what follows - millionaires on the .one hand and mendicants on the other. That the Act can be evaded is shown by the fact that, instead of its discouraging monopolies and combinations in Australia, as a matter of fact additional combinations have sprung into existence since its passage. As additional combinations have sprung ‘up and have established monopolies, while those which previously existed have continued to carry on their businesses since the passing of the Act. on lines . almost identical with those which they followed prior to that date, it is time that we recognised the necessity for an alteration of the law. The Government ought to receive the unanimous support of every well-wisher of the Commonwealth in their desire to clothe the authorities with greater power in order to successfully prosecute those institutions.
– I think, they are going to.
– Not if certain honorable senators have their way. If Senator Stewart’s amendment is carried, we might as well throw the Bill out, because the power really lies in the provision which the honorable senator desires to amend. If that provision is knocked out, the Bill will foe considerably weakened, and will be no more effectual than the Act which we are now attempting to amend.
– I have to say, with certain reservations, that I give the’ Bill a reasonable support. I am not quite sure that the Government have made a great effort to ascertain whether the existing Act is faulty. After a measure has passed this- Senate, and received the careful attention of legal minds, it seems to me impossible that it should be suddenly pronounced to be unworkable before it has been given a trial run. If a machine is made to pattern or design, and allowed to stand idle in a shed he must be a very bold man who will venture to pronounce it unworkable, not having given it a trial to show where the weakness lies. I say frankly that I am not sure that a better effort could not have been made by the Government to test the efficacy of the existing law. Seeing, however, that the Government do entertain a doubt of its workableness, I am prepared to support this amending Bill, not that I believe it will be an effective weapon for the repression of trusts, but because it represents another effort to deal with this growing, pressing, every-da.y problem, which exists not only in this country but elsewhere. It may be contended that we have nothing in the nature of trusts in Australia, but those who take that view must be compelled to admit that, if trusts have not appeared here in the outrageous forms in which they are found in other lands, if they have not started to bite in Australia, they have certainly shown their teeth. It is a question whether we should wait until they -assume that formidable shape, capable of producing such wide-spread havoc and injury to the public good, which they have assumed in other lands, or whether we should start in time to prevent the evil from growing to those proportions. The Bill has been criticised by Senator Millen, who, I believe, has given a very worthy and laudable support to the original measure, but the honorable senator should remember that trusts axe not an evil of present-day growth. Their existence has not been confined to this country, nor even to this century. One of their striking features is that, so soon as a law is passed to deal with their present-day actions, or with a particular method in which they make themselves objectionable, hurtful, and obnoxious to the well-being of society, they drop that particular form of action which would bring them within the four corners of the Act, and resort to another method by way of subterfuge to evade the law.
– The honorable senator will remember O’Connell’s saying that he could drive a coach-and-four through any Act of Parliament.
– I believe that trusts and combines can go one better than O’Connell. In my opinion they could drive not merely a coach and four, but a whole camel team, through the Act which has been passed by this Parliament. If the Government have good reason to believe that the Australian Industries Preservation Act, although they have never given it a trial run, is likely to prove ineffective, they are quite justified in asking this Parliament to confer on them the power to make it effective, and without which it will be absolutely useless for the purpose for which it was passed. One critic of the Bill referred to this legislation as being unique, inasmuch as it will . impose harassing conditions upon the citizens of” the Commonwealth. But it has already been explained that the particular provision which is objected to as unique has been taken in a modified form from the Customs Act,’ where it is already in operation. As it is admitted that such a provision is absolutely necessary in the Customs Act, it is well that we should consider the class of persons again’st whom the provision in the. Customs Act is directed. This leads me to ask the question : Who is the greater evil doer, the man who seeks to escape the payment of ordinary Customs duties by the adoption of devious methods, or the industrial combination that seeks to limit supplies, reduce wages, and make the lot of thousands of people harder?
– A combination, by effecting a corner in wheat, may be responsible for the lives of human beings.
– That is so, and I regard a combination that limits the means of livelihood of thousands of people as a. greater evil doer than an ordinary Customs defaulter. The loss caused by the action of the man who evades the. payment of Customs duty is shared by the community, and is not so grievously felt by any one as are the results of the operations of the unscrupulous combinations to whom this Bill is intended to apply. Although the provision complained of has been borrowed from the Customs Act, I find that in the transfer it has” lost half its severity, because, under section 234 of the Customs Act, a person refusing to answer questions asked to secure evidence necessary for a prosecution renders himself liable to a fine of £100, whilst under this Bill a person refusing to answer questions asked for the preparation of evidence to enable the prosecution of a combine is liable to a fine of only £50. It would appear, therefore, that under this Bill combinations of manufacturers are not to be treated with the same severity as individuals dealt with under the Customs Act.
– Why should they be, if they are working well ? Honorable senators opposite admit that some combines are working in the interests of employers and employes, and at the same time are not defrauding the public.
– Let me admit it again if it is necessary to do so. I believe that it is absolutely suicidal for the employers of labour to continue a system of cut-throat competition, and I am in accord with combinations to prevent undue competition in trade. The- difficulty is that when that stage is arrived at the immediate tendency is to go to extremes in another direction, and use the position of exclusiveness obtained to increase the price to the consumer, to interfere with trade, and to reduce the wages of employes. The happy medium is never maintained. I believe that it cannot be truthfully said that no monopolistic institution that has succeeded in preventing cut-throat competition has not subsequently made use of its powers to tyrannise over producers, consumers, and employes. This Bill is largely based on the Sherman Act and other American laws. Very recently pronouncements have been made against the Standard Oil Company, which belongs to the class of combinations this Bill is intended to deal with. I find that Judge Landis, of Chicago, has but a very poor opinion of the persons who constitute these combinations.- In giving his decision in . the case in which he fined the Standard Oil Company nearly ^6,000,000, he said that -
He regretted being unable to send the offenders of the law to prison, as they had wounded society more deeply than counterfeiters or mailbag thieves.
This eminent Judge, in giving effect to the American law, placed these monopolies in the same category, or even lower than counterfeiters or mail-bag thieves. It would be well for honorable .senators who contend that this legislation is unique to consider the laws which are in force in America. The Elkin Act was passed in America to suppress the giving and receiving of rebates, a most mischievous system,, which is in operation in Australia. Judge Landis was administering the Elkin Act when he passed his severe condemnation on the monopolists -of America. Where combinations use their power to inflict injury upon society, we should not hesitate to pass legislation to circumvent them on the ground that it is unique. Senator Symon described the provisions of the Bill as mischievous, but there is an old maxim which might be quoted in this connexion - that it is better that a dozen criminals should escape than that one innocent man should be hanged ; and I hold that it is better that one person, or a dozen persons, should be harassed in the exercise of the powers vested in the Comptroller-General under this Bill than that thousands of persons should continue to suffer from the action of these combines.
– We should hang an innocent man so that murder should not be committed ?
– The honorable’ senator misunderstands me. We are dealing in this Bill only with the asking of questions to secure evidence for a prosecution. I suppose we can assume that the ComptrollerGeneral will be a level-headed man, and prepared to exercise the powers conferred on him by this Bill in a spirit of fair play, and I say that it is very much better that one person or a dozen connected with a monopoly should be harassed, if that be necessary to secure information, than that thousands of persons should be injured by the operations of the combine.
– Under the Bill the power to question may be delegated to an under-strapper.
– But the responsibility will still, rest upon the ComptrollerGeneral. I do not believe that in actual practice the Bill in this particular matter will be administered entirely by the ComptrollerGeneral. I believe that it will be found necessary to appoint some special officer, whose whole time will be devoted to this work of preparing evidence. Senator Stewart, amongst others, referred to the Bill in severe terms, and earned the applause of Senator Neild by his suggestion that it is opposed to the principles of British justice. But, as has been mentioned by another honorable senator, the principle of holding a person guilty until his innocence is established in a Court of justice is in certain cases already a principle of British law.
– Does the honorable senator think that it is a good principle ?
– I believe that it is justified by necessity, and that without it it would be impossible sometimes for employes to obtain justice. It is not opposed to the spirit of British justice, as, if we look to its origin, we shall find that it is taken from British laws.
– Only in our own Customs Act.
– The provision is to be found not only in the Customs Act, but also in many other Acts. Ipoint out to Senator Stewart that the Queensland Mines Regulation Act contains a provision to the effect that when an accident occurs in or about a mine, that fact shall be prima facie evidence of the guilt or negligence of its manager.
– I believe in that provision, but the two cases are not parallel. Senator LYNCH.- What is the difference in the position of the manager of a Queensland mine in a case of that kind, and that of a person who may refuse to give evidence under the Act, which this Bill seeks to amend?
– There is no parallel at all. The manager is responsible for the management of the mine.
– I am dealing with concrete facts, of which the honorable senator must be aware. Surely he knows that in the case of an accident happening in a mine in Western Australia and Queensland, the mine manager is deemed by the law to be guilty until he proves his innocence.
– It is not proof, but prima facie evidence of negligence.
– If the evidence is not disproved, the Court will hold the manager guilty.
– I am not an adept at hair-splitting, but by the Acts of those two States the onus of proof of innocence is laid upon the manager of the mine in which any accident has happened. Although the provision in those Acts has been borrowed from British legislation, still Senator Neild rises here and assures the Senate that it is opposed to the spirit of British justice. Western Australia and Queensland, as well as another State which I could name, have actually borrowed from the industrial laws of England the provision that in certain cases a person shall be deemed guilty until he proves his innocence.
– It is not proof of guilt, but only prima facie evidence of negligence.
– It is prima facie evidence of the man’s guilt, and the honorable senator is only splitting hairs. I ask honorable senators who have glibly criticised the Bill to ascertain what is happening in the Australian States, as well as in the old country from which this legislative provision has been borrowed, and which, I ‘ believe, has no intention of repealing it.
– Can the honorable senator cite me the title of any one of the Acts to which he has referred?
– I have referred to two Australian Acts which have borrowed the provision from the industrial laws of England.
– I want proof of that.
– Then I refer the honorable senator to the Western Australian Mines Regulation Act of 1895, and the Queensland Mines Regulation Act.
– From what Acts have the Parliaments of those States copied or. borrowed the provision?
– From an Imperial Statute.
– That is too indefinite. I have no doubt that the honorable senator believes what he is saying, but that is not proof.
– From the Coal Mines Regulation Act of England.
-My point is that the principle has been recognised in British as well as in Australian legislation, and that, therefore, the provision in this Bill is not novel. Daily in our Courts persons are placed in the dock, and called upon to explain how they became possessed of certain goods found in their possession, and if a satisfactory explanation is not given they are convicted. In other words, at the instance of a citizen a person is apprehended and treated as a criminal until such time as he can establish his innocence in a Court. The provision which enables one citizen, by signing a warrant, to place upon another citizen the onus of establishing his innocence, is equally necessary in the cases which this Bill seeks to remedy. It has been said that America is par excellence the land of monopolies. Al- though the American Government* has been struggling with this industrial trouble for a long time, yet they have not found a remedy. That indicates that there is only one remedy to put an end to the trouble. No’ matter what statutes we may pass those who are standing behind industrial combinations can very easily discover loopholes through which to slip. Such an inherent dread of monopolies prevailed in certain States in America that they actually planted in the Constitutions a- warning to citizens against their encroachments. For instance, the Constitution of Maryland says -
Monopolies are odious and contrary to the spirit of commerce and ought not to be suffered.
The Texas Constitution says -
Monopolies are contrary to the spirit of a free people and shall never be allowed.
Since the establishment of their Constitutions the people of those’ States have been striving perennially to deal, with this industrial evil. The question is whether we intend to allow any tinkering legislation to take place, or to apply the only remedy that can’ be effective in eradicating this pest which has found a root in our industrial system. Time has disclosed several weaknesses in the Australian Industries Preservation Act. But those weaknesses have been discovered in the administration of a similar measure in the United States. Under the principal Act- ,proof of the existence of a contract is required before its provisions can be- set in motion. In America the combines and monopolies have got over that difficulty by substituting an oral contract. The Inter-State Commerce Act and the Sherman Act have practically been turned into waste paper bY the ingenuity of the members of corporations and monopolies. While the successful operation of the law depends upon the establishment of the fact that a contract in restraint of trade exists, it is easily possible for combinations to make a mutual arrangement, and show that no contract does exist. In Bossism.and Monopoly - a work which was published only last year - Spelling shows that the Sherman Act is found to be altogether ineffective., because, the existence of a contract in restraint of trade cannot be proved. He points out how unworkable and futile the Act is -
It seems to be settled by these cases that the mere manufacture and sale of a commodity, upon however extensive a scale, and though the sales are largely for delivery to citizens of other States, and though one manufacturing and selling company have a virtual monopoly, yet that does not render it a violation of the provision directed at those who “ monopolize or attempt to monopolize Inter-State commerce.” It seems that to constitute a violation of the statute there must be a precedent agreement in restraint of Inter-State trad’e, and that no amount of actual monopolization, in the absence of such agreement, will constitute persons or corporations violators of the statute.
That quotation relates to a monopoly. Later on he refers to the ease with which combinations can escape the provision which requires proof of the existence of a contract. He says -
There are just as stringent prohibitions and just as detailed a method of procedure for the discovery, prevention, and punishment of discriminatory agreements and contrivances in the present Inter-State Commerce Act as Congress can enact by exercising its utmost ingenuity, aided by the legal acumen of the best lawyers. And yet, not in a single instance that can be cited, in the eighteen years since that Act was placed among the laws of the nation, has the Standard Oil Company been deprived of the benefit of a discriminatory agreement. The reason is that such agreements are secret - gentlemen’s agreements - the exact terms of which cannot be ascertained as a result of any efforts of which the Inter-State Commerce Commission is capable. Such agreements are not of record - they are not reduced to writing. They are not even made on behalf of either “high contracting party” by a recognised official. They are made by counsel or by secret agents, whose names are never divulged, even if known to the chief officer of the shipping and railroad companies. For that reason investigations have thus far borne no fruit, and will bear none in the future, no matter what additional laws are enacted.
So far as- requiring proof of the existence of an agreement is concerned, our Act is wholly inoperative if we are to judge by America’s experience of the Inter-State Commerce Act and the Sherman Act. There is a second objection, namely, that a trust must be in existence before the case can be proved. The first quotation which I made clearly proves how easily that difficulty can be overcome-. I have mentioned that I have very little faith in the Comptroller-General of Customs being able to give effect- to the Act, because his duties in the administration of the Customs Act will leave him very little time in which to attend to the enforcement of this measure. The officer charged with the administration of the Bureau of Corporations in the United States, when he came to inquire into the doings of the famous Beef Trust in Chicago, actually reported that it was almost a charitable institution, and one in no sense transgressing the statute laws of America. Apparently- this functionary shirked the task of exposing the Trust. The authorities which I have consulted go to show that when an officer is over-laden with duties, as the Comptroller-General of Customs will be, he is not inclined to show so much zest in the administration of a particular Act as would an officer charged with its administration and with no other duties. It is unnecessary to impress upon the Senate the awful mischief done and hardship caused by the Beef Trust in the United States. Yet we find a public officer there describing it as almost a charitable institution. The name of the officer at the head of the Bureau of Corporations is Garfield. I suppose he is a relative of a former President of the United States.
– His grandson.
– This case appears to me to show the wisdom of placing the administration of the measure under an officer who would be able to devote his whole, attention to it. I desire now to say a word or two to show the evil effects which monopolies and trusts have upon citizenship and individual character. It has been long contended by those who are opposed to the Labour Party, or the Socialist Party as it is sometimes called, that if our doctrines are finally accepted as a national policy, advancement by the individual will be prevented, ‘and that there will be no scope for men of ability to push forward on their own account, and to make themselves independent. That is one of the standing objections to the adoption of our policy. It has been urged over and over again that by the control of monopolies in l;he way we propose, and by the ultimate taking over by the Commonwealth of the means of production-
– We cannot have a discussion upon the advantages or disadvantages of Socialism. I ask the honorable senator not to continue that line of argument.
– I think I have succeeded in showing that, up to the present, American methods of dealing with trusts and monopolies have been ineffective. It has been stated that twenty-seven Acts of Congress have been passed, but they have not been successful in achieving the object for- which they were placed on the statutebook. It is true that the other day fines to the extent of £6,000.000 were imposed upon the Standard Oil Trust.
– That is very good.
– But Mr. Rockefeller has been able to take shelter behind a writ of error or some such process.
– The fines have not been paid yet.
– “No. The Standard Oil Trust has escaped for eighteen years the operations of the Inter- State Commerce Act, and has never paid a farthing into the American Treasury. That leads me to say that the inevitable effect of trusts and combines is detrimental to good citizenship, and to individual character. Let me quote the opinions of two very prominent public men in America. The first is Mr. Bryan, the candidate for the Presidency, who, in a recent speech on monopolies, said -
A private monopoly such as public ownership is intended to prevent, does not enlarge the sphere of the individual or inspire him to high endeavour. The actual effect of a private monopoly is just the reverse, and wherever the principle of private monopoly enters the Government must operate the monopoly or violate all the principles taught by Jefferson.
That is the opinion of a man who leads 3. large and growing body of public opinion.. Mr. Cleveland, a former President of the United States, in his Message to Congress in 1899, said -
Through the presence of the trusts and other huge aggregations of capital the farmer, the artisan and the small trader are in danger of dislodgment from the proud position of being his own master, watchful of all that touches his country’s prosperity in which he has an individual lot, and interested in all that affects the advantage of .business of which he is a factor, to be relegated to the level of a mere appurtenance of a great machine, with little free will, with no duty but that of passive obedience, and with little hope of rising in the scale of responsible and helpful citizenship.
Those are the opinions of very distinguished public men in the United States, who represent a -large body of public opinion. I believe that the remedy proposed by the party to which I belong is the only effective one.
– I point out to the honorable senator that he is again transgressing the ruling that I have laid down.
– I draw attention to the general tendency of trusts and monopolies, and to the effect they have upon the individual. At all events, I urge upon those who are opposed to the measure - Senator Stewart, for instance - that it is our duty to do our best to make the Bill as effective as possible. Personally, I have very little hope that it will be completely successful. _ I do not believe that it will cure the evil. But, nevertheless, it is our duty as a Legislature to see that every effort is made to keep within reasonable limits and under effective control those vast combinations of capital that are fraught with so much danger to the public good.
Sitting suspended from 1 to ‘2 p.m.
– I do not like to keep silent on this Bill, as it is an extension of a measure which I opposed last session. We are all agreed that any vicious combination against the public welfare should be stopped, but I take special exception to this Bill, principally on two grounds. The first is that it puts too much power in the hands of the Government. That is an old objection of mine. The ComptrollerGeneral is nothing more than a Government official. He can transfer his powers to a junior official. Here it is that the Bill is likely to do a great deal of harm to the public welfare-
– Does the honorable senator mean that a Government official is likely to do as much harm as is a vicious combination ?
– The ComptrollerGeneral may act on information supplied by a jealous opponent or a discharged employe^ who may poison his mind and induce him to call upon certain firmsto disclose all their business.
– To whom?
– To himself. The very fact of being called upon to disclose their books would be likely to injure the credit of a quite innocent firm or combination. I agree with Senator Stewart that any such power should rest only with a Court. The proceedings need not necessarily be in public, but ‘ they should be before a lawyer- a Judge.
– Is it- better to have the inquiry before a Court and in public than before a Government official and in private ?
– I do not like secret inquiries. It is strongly against the English feeling of justice that any man or body of men should be able to call upon one to disclose all one!s business, to get hold of all the secrets of his trade, and possibly to injure him by that _ very fact, and then take no further action. Under this Bill, a person who has been unjustly called upon to produce his books has no remedy. According to new section 15A, in clause 4, the charge is to be deemed to be proved in the absence of proof to the contrary. That, to my mind, is one great blot. The other blot is the provision which shows the tendency exhibited lately by the Government, in all these Bills, to copy the French method of presuming that a person is guilty unless he can prove that he is not. It sounds to me very like the Russian method of imprisonment by administrative process. The Russian method is for Government officials to arrest a person on suspicion of holding opinions subversive to the public good. The accusation may not be true, and yet that person is arrested and imprisoned, and no inquiry is made. Here exactly the same thing is proposed on a modified scale by the Government of the day. They are to control other people’sbusinesses and to presume people to be ‘guilty whenever they choose. The old English principle that every man should be considered innocent until he isproved to be guilty should be upheld in the Commonwealth. This is a very seriousmatter, and great injury is likely to accrue to the public unless the public realizes the present tendency of our legislation and protests against it.
– I have listened to the discussion from the beginning, and I think that, the merits and demerits of the Bill have been well threshed out. I have come to the conclusion that the Bill is necessary. It is on right lines, and I intend tovote for its second reading, and to support it . in all its stages. There is one particular argument which has been often trotted out, and which I want tocombat. The Comptroller-General of Customs is continually referred to as if hewere a specially naughty man. Is it not a fact - does not Senator Walker know it well - that in connexion with income taxation there is a Commissioner with largepowers? A dreadful man, by the name of Russell, holds that position in South Australia, and has those powers, not only for himself, but also for those whom he employs. He may appoint men to visit the various parts of the country and make inquiries. I know it by experience, becausesuch an officer visited my farm on oneoccasion.
– And the honorablesenator strongly objected.
– I am not speaking about my own case at all. What I want to explain is that he had the power by Act of Parliament, being deputed by the Commissioner, to enter upon my farm, or anybody else’s farm, and ask questions such as these: - “How many machines have you ? “ “ Have you got a new one? “ “ Was it to replace an old one? “ “ If you got a new one and it was not to replace an old one, you will have to show it in your return, and be taxed for it.” That is the law of the country. I have read a great deal about these combines and trusts, although, personally, I have had little to do with them, but I would remind those honorable senators who profess to be the farmers’ friends of something that happened in South Australia about thirtyyears ago. The manufacturers combined to raise the price of the ordinary reaping machines to about £70 each. They formed a ring. It was an understood thing that none of them dared sell a machine under that price, and the poor farmer had to grin and bear it. At the same time, it was conclusively proved that those machines could be, and were eventually produced and sold at£25 a piece less than the price which the ring had fixed. I think that is conclusive evidence of the injury that is done to the public. A Bill of this kind is necessary, and I intend to support it most warmly.
– I am willing to give the Government practically any power they choose to ask for, if it is to be exercised to prevent trusts from using their powers to the injury of the public. I agree with Senator Henderson that the Government maygetall those powers, and that we may put what law we like on the statute-book, but the ingenuity of the best legal talent in the Commonwealth, which is always at the disposal of the trusts, as it is practically always employed by them, will be exercised in such a way that we shall be simply driving the combines into new methods of transacting their business. Combines are a necessity - a necessary evil, if you like - of the present methods of conducting industries. Honorable senators opposite talk a great deal about the individualist, but he is practically non-existent to-day. The old idea of the individualistic system has been supersededby the large industrial undertakings which have been taken up. The result has been that the individual has not had the necessary capital to establish industries and maintain them successfully. A number of people come together and form a company. When a number of com panies have been formed, other companies, seeing an opportunity of making money by entering into a certain industry, start competition. Our friends opposite may say that they are very fond of competition, but I do not think they are. They are only fond of it so long as there is a possibility of all the competitors being able to make something out of the general public. As soon as that is no longer possible, the various companies come together with an agreement, or, if it is against the law to have an agreement, they have what they call a gentlemanly understanding, whereby they fleece the public to the utmost of their power. We are told that there is nothing of this sort in Australia, and practically nothing of the kind in England, because England is a free-trade country. But I suppose that there is no stronger combine in the world than that of the English railway companies. From one end of England to the other, their history shows that they are prepared to take, at the rates which they all agree to charge, produce from foreign countries, and carry it over any of their lines at less than half the price in many cases which they charge the local producer.
– That is what the Government have been doing in the railways in Australia.
– They have not.
– Exactly the same thing has been done in New”. South Wales and Queensland, so far as wool and stock are concerned, in order to attract outlying traffic from its natural channels.
– All that has been done here has been to give preferential rates whilst there was competition, but the English railways combine permits absolutely no competition. Whilst they have, perhaps no regular written agreement, it is common knowledge that the companies have fixed rates for certain goods, especially on certain lines, and give preference to the foreigner as against the local producer. That is certainly the action of a combine. Power has now been given to some extent, although not so much as it should be given, to the Board of Trade to deal with the railway authorities in England to-day. We have combines in Australia just as other countries have. We have, for instance, the Colonial Sugar Refining Company. I do not propose to say anything against that company, except that it is proved that in Queensland they are paying, and have paid ever since the central mills were established, from 2s. to 5s. per ton’ less to the growers of cane than the central mills have been able to pay. .
– Quite the contrary.
– What I say is proved by the balance-sheets of almost every central mill in Queensland. I can refer the honorable senator for proofs to the prices paid by two mills in the Mulgrave district. The Mulgrave central mill paid 21s. 7d.. per ton, while the Colonial Sugar Refining Company paid only between 15s. and I6s. per ton. This is because the Colonial Sugar Refining Company have control over a certain area, and are able to compel the growers within that area to sell their cane to the company.
– The company being the only buyer ?
– Yes, within a particular area. Beyond the area one or other of the central mills is able to compete with the company for the purchase of cane, and gives a better price than that given by the Colonial Sugar Refining Company. Who is it that has fixed the price of sugar in Australia? It is the Colonial Sugar Refining Company. Not long ago I was speaking to a man who is running a plantation., and manufacturing sugar himself. He is making a fairly good white sugar, and has sent it to the Sydney market, and he told me that the Colonial Sugar Refining Company has the trade so organized that, although he was prepared to sell his sugar at 10s. per ton less than the price demanded by the company, he could not get into the market. We have other combines in Australia. I can refer honorable senators to the Shipping ‘Combine. If they read the evidence taken by the Shipping Commission they will find that traders throughout Australia complained of the system of granting rebates to merchants snipping their goods by . certain shipping companies, and that if they failed to do so they might lose rebates that had accumulated for twelve months. Instances were given in which traders lost rebates which thev had earned by availing themselves of opportunities to purchase goods cheaply, and ship them by some small boats that did not belong to the shipping companies giving the rebates.
– Does the honorable senator think that there would be any difficulty in proving, that in a court of law?’
– Possibly not. I think I understand the honorable senator’s interjection, and to some extent I must say that I agree with him that the Government would have greatly strengthened their case in submitting this Bill if they had taken action under the existing law against one or two of the combines., even though they lost their case almost as soon as .it was called in Court. They would then have been in a position to say that they required greater powers than are provided for in the existing law.
– Of what use is it to go into Court if you know that you will be beaten ?
– It is quite possible that the Government might have expected that they would be beaten in a prosecution against a combine, but if they had been they would have had a justification for asking for increased powers under the law.
– It is possible also that an opportunity would have been afforded to discover wherein the existing Act is defective.
– That is possible, but it is also possible that a case might have been decided almost at once on a technical point. If a prosecution had been instituted, and it had been shown that the evidence which the Government were able to obtain was not sufficient to secure a conviction, the Government would have had a right to ask Parliament to give them power to secure the necessary evidence in these cases. The Bill is objected to because power is given under it to a Government official to examine books and documents. We always hear the old cry that this kind of thing is an interference with private enterprise.
– Every thief says that.
– Certainly he does. We- cannot expect him to believe in a law against thieving, because it interferes with his business. I can refer honorable senators to the case of a Queensland banking institution that went down during the financial crisis, and appealed to the Government to save it. The Government used their power to save the institution, but they made it a condition that they should have the right at any time to send auditors to audit the books of the bank in the interests of the public.
– Did this happen in Queensland ?
– Yes. I refer to the Queensland National Bank. That institution is working under an agreement with the Government to-day providing for the audit of its accounts, and so far from this provision doing the bank any harm it has improved its position in the estimation of the public. People recognise that they have some grounds for confidence in the institution, inasmuch as there is Government as well as private money in the hands of the bank, and the Government ‘have the right to send an auditor to audit the books of the bank, and let the public know how its affairs are being conducted. My point is that when this banking institution sought Government assistance they had no objection to the appointment of a Committee to examine the affairs of the bank.
– What dividend does the bank pay under Government supervision ?
– It is not at present paying any dividend, for the’ reason that it has to make good some £2,0009000 or £3,000,000 of public money, and a very large amount of private capital which people had to leave in its charge without any interest at all. Under the agreement with the Government the bank is called upon to pay off these liabilities within a certain time, and the institution is making sufficient profit to gradually meet them., and is thereby being placed in a position of solvency in which the directors were unable to keep it without Government assistance. We have heard, amongst’ other combines, of the Coal Combine. The organization of industry is absolutely necessary in the interests of the people carrying it on and those employed in it, and often in the interests of the public. The public do not often get a cheap article, and when they do it is often particularly nasty. Competition in trade has led to the use of light weights, and to, adulterations inimical to the public health, and has rendered the regulation of industry in some way a necessity in the interests of the public. There has never .been any great outcry when it has been the other chap who has been the victim of inquisitorial investigation. We have been told that trade unionism is combination, and that it has done some good. It is only lately that we have, been able to get that admission from honorable senators opposite. Trade unions have heretofore had to fight for every inch of ground they have been able to gain. They have had no support from the people who now admit that they have done good work. It is only during the last few years that’ with the spread of education trade unions have been able to show that they are possessed2 of somepower, and are in a position, to exercise it. The people who object to this legislation being applied to capitalistic combinations have never objected when it has been directed against trade unions. Not long ago a Bill was passed by the Victorian Parliament which is a disgrace to any statute-book.
– To what Act- is the honorable senator referring?
– To the Act passed at the time of. the railway strike in Victoria. An Act was passed by the Queensland Parliament under which men who had nothing to do with trade unionists found police at their camps in the morning ; everything they had was examined ; they were taken to the nearest township, and imprisoned for three or four days before being brought to trial. In some cases they were not brought to trial at all, and after being in prison for four or five days the authorities said to them, “ We do not require you any more; get out!” and they were passed out of the door of the prison, and had no redress under the law. The people who passed that law belonged to the class who strongly object to the application to capitalistic concerns of legislation that is not nearly so drastic. Many of the persons who suffered under the Queensland law did not interfere with the public in any way. That law was passed by a Parliament which represented not labour, but . other interests, and was intended to ‘deal with unionist organizations. In the Bill -before the Senate the Government are not asking that people shall be put into gaol without inquiry, or that there shall be any publication of any one’s private or trade affairs. Inquiries are carried on by officials of the Customs Department every day, and the public know absolutely nothing about them. ‘ We are told that the inquiries provided for- under this Bill would interfere -with a man’s business. Nothing of the sort. The Comptroller-General would have” the power to say to an officer’, “ You go down to such-and-such a’ place and see their books.” It would not be published that the official had gone there. He would look through the books and make a report to the Comptroller-General. If that officer. found nothing in the report on which a prosecution could be based no more would be heard of it, and no man’s business would be prejudiced. But if as a result of the inquiry there was evidence secured to justify a prosecution, the Attorney-. General could institute proceedings, and if he could prove his case the offender would be liable. Senator Stewart objects that ‘this power should be given to a Judge, and not to be Comptroller-General, who has too much to do already. Granting the latter contention, it is no reason why we should give this power to a Judge, because, in the first place, a Judge does not come directly in touch with the trade and commerce of the country. He has no knowledge of what is going on unless it is brought before him in his official capacity. His duty is to hear and weigh evidence, and to give a decision. But to require a man who has to try a case to instruct persons to go round and collect evidence-
– No; the suggestion was that in the Court the prosecuting authorities could call for the papers and documents, and that then they would be brought forward as evidence.
– SenatorStewart contended that a Judge should be intrusted with the power which the Bill places in the hands of the Comptroller-General of Customs, on the ground that the latter has too much work to do. There is no reason for selecting the Comptroller-General of Customs, except that he is in a better position than any other official to know what is going on in the world of trade and commerce. His officers are established at various points throughout the Commonwealth. Trade and commerce have to be carried on more or less in connexion with his Department, and through his various branches he. obtains an insight of business matters which no other person could secure. Suppose that the power is intrusted to the Comptroller-General of Customs, he can appoint his deputies to do the work. No one dreams that he will personally make the inquiries. But the main consideration is that he is in a better position than any one else to judge where to send persons to inquire. And when the inquiries have been made, there are other officials who. when they believe that they have obtained sufficient evidence for that purpose, can lay the evidence before the Attorney-General, who will decide whether or not there shall be a prosecution. I do not see any harm in collecting the evidence in that way.
It has been proved, I think clearly, that in America it ‘has been found quite impossible to get the necessary evidence to convict persons. It has been generally admitted that in that country the combines’ have been doing a great many things which must be inimical to the public interests. I recognise that in our present state of industrialism, combines are absolutely necessary, because they are able to pick up the threads of an industry and organize it thoroughly ; but after its organization has been effected, their only idea is to wring from the public just as much as they can. Years ago, when the railway people in America were starting their big organizations, they used to go to persons who had produce to send away and say, “We demand to see your books before we will make an arrangement with you for the carriage of your produce.” The officers of the railway companies examined the books and decided practically what prices they would charge for the services to be rendered. If they were not able to gain their point by that method, they would prevent the goods from getting on to the market by side-tracking them, or by resorting to any device they could think of without bringing themselves within the law relating to common carriers. It seems to me that every part of the civilized world will go through the same experience as America has done. England has its trusts and so has Australia. The parties spend all their ingenuity, money, and time in organizing an industry, but once that is done they squeeze all they possibly can out of the public. It has been stated here that the Standard Oil Trust has not only increased its capital tenfold during the last few years, but has also paid practically that sum in dividends. It has been robbing the public in every conceivable way. Some honorable senators may say, “ That is all right, but you see in America they have a different system of transport, and it was through that means that men were able to fix up big trusts and combines, and make enormous profits.” That is undoubtedly true, but it is simply because the railways have been in the hands of the States - and I think the idea is generally entertained by our anti-Socialist friends, that nothing should be in the hands of the State-
– No anti-Socialist ever said that.
– That has been harped on for years. It has been pointed out in the press, time after time, that it would be a good thing if the railways of Australia were sold and the people relieved of the load of debt which they were bearing.
– No party has ever advocated that policy, though single individuals may have done so.
– It has been advocated by Mr. Bruce Smith.
– He is not a party.
– It has been advocated in a number of places in Australia, and always by persons who are associated with the party which is opposed to any legislation interfering with private enterprise.
– The only public man who, to my knowledge, has ever brought forward a proposal of that kind, has been the honorable senator’s ally - Sir William Lyne.
– I can quite understand that that proposal was made a long time ago, but very many persons who are friendly with the party opposite, were the active engineers in trying to bring about that sale.
– No ; it was my. party which blocked theproposal.
– I do not think it was.
– I ask the honorable senator not to discuss that question.
– I am prepared to give to the Government every power which it likes to take in this connexion, not because I believe that this legislation is likely to be effective, but because I think it will teach the public that the only way to deal with these matters is for the State to take over the industries. It may be possible to regulate combines and trusts for a time, but that is only playing the role of the boy who, when he saw water running down a channel tried to stop it with a bit of mud, but found that all his efforts were of no avail. The people will realize that what is protecting them from the growth of trusts is the control of internal means of transport by the Government. Otherwise, we should have such an enormous combination in connexion with transport, trade and manufactures, that no power on earth could protect the people unless the Government intervened. That is the only thing which is to some extent protecting the public against being fleeced more severely by the combines. I support the second reading of the Bill, and will give every assistanceI can to the Government to bring our legislation onthis subject into working order as soon as possible, so that it may be demonstrated whether it is effective or not.
Senator DE LARGIE (Western Australia [2.40]. - Ihave no desire to remind honorable senators that I predicted the failure of the principal Act. The attitude of the Labour Party was clearly defined when that measure was submitted last year. We urged that very little good could be expected to result from its enactment. Yesterday, Senator Millen explained our position to a nicety, and took upon himself a responsibility which I fear will keep him very busy, and that is the control of trusts by legislation. I am prepared to assist him in every possible way to control trusts, because I realize that the people are not yet prepared to go to the root of the evil and effect the one and only cure.
– And that is nationalization.
-Yes.Fromtime to time, practical proposals have been submitted to the Senate. We have demonstrated that several monopolies could be nationalized with the greatest ease, and that the public welfare would thereby be safeguarded. So far as the raising of the necessary capital was concerned, I pointed out that the iron industry, if taken over by the Government-
– I ask the honorable senator not to discuss the advisability of nationalizing industries.
– I merely made that reference by way of illustration to show that this legislation must necessarily fail. It contains the seeds of failure, and the only cure for the evil of trusts is nationalization.
– The honorable senator will admit that the law is bound to fail if no effort is made to enforce it.
-I admit that if no earnest effort is made by the Government to exercise their power, the law must fail.My honorable friend was quite justified in complaining yesterday that the Excise duty has not been collected. The Government ought to have taken some action in that direction, and for their inaction they are to blame. I also recognise that this legislation is somewhat novel. The new protection is rather a novel proposal .
– I ask the honorable senator not to discuss the new protection, as it is not involved in this Bill.
– I assure you, sir, that I have no desire to transgress the rules. I hope that our legislation on this Subject will be more successful in the future than it has been in the past. The introduction of this Bill is ample proof that the Act has been a failure. I hope that in the future any practical proposal to get rid of this evil will receive more cordial support than has hitherto been extended to any effort in that direction. It is, I admit, a very slow way in which to proceed, but, though it is slow, it is none the less sure. I feel that every failure on the part of the Parliament to deal with this evil will furnish an argument in support of the proposals which have been submitted from time to time by various members of our party. I recognise that the present measure does not go to the root of the evil. It is like applying ointment to a sore. It eases the sore for the time being, and no more. Therefore, I have very little faith in the Bill as remedial legislation. But when I compare this proposed remedy with that suggested from the Opposition benches, I must necessarily choose what I believe to be the better of the two.
– The honorable senator’s party has been so careful to keep us in Opposition that we have never had a chance of applying a remedy of our own.
– I can assure the honorable senator that, so far as my vote goes, his party would not remain long in opposition were I sure that they would formulate a better remedy than this. We have before us a mere choice of stickingplasters. The sticking-plaster that the Government offer is, to some extent, a remedy. That which the Opposition offers is of no use whatever. Consequently, I am obliged to choose the sticking-plaster prepared by the Government. Last night Senator McColl referred to the .position of the Labour Party in regard to this class of legislation, and uttered a warning against doing anything which might have the effect of driving capital out of. the country. If the honorable senator wishes to retain the respect of his fellow senators, which he undoubtedly enjoysq at present, he must cease trotting out that old “wheeze,” the use of which is neither creditable to him as a senator nor indicative that he has taken recent lessons to heart.
– Poor, benighted man !
– I am afraid he is not the only senator in that position. This much can be said regarding the little island from which Senator Mulcahy comes - that it is even in a more deplorable position, industrially, than is any other State in Australia, as shown by the recently published report on the sweating evil.
– Not half so bad in that respect as Victoria is.
– I only wish that the Commonwealth generally were as far advanced in regard to industrial legislation as Victoria is. Another kind of argument has been used by Senator Walker, namely, that trusts and “combines exist only under protection. In the face of the fact that many trusts have been formed in the old country, I cannot understand that statement.
– What trusts?
– I might mention the Freight Trust, the Shipping Trust, the Portland Cement Trust, the Cotton Thread Trust, and a number of others.
– Trusts exist under both fiscal systems
– Of course they do. The American trust of which we hear most, namely, the Standard Oil Trust, was not created by the fiscal policy of the United States. It was formed quite independently of Customs duties. The Coal Trust does not owe its existence to the protective system. The. Newcastle Coal Vend in Australia has nothing to do with fiscalism. There are other considerations affecting the formation of trusts than fiscal policy. I can best reply to the arguments advanced regarding the Labour Party’s attitude towards trusts by quoting from a recent work by that very entertaining writer, Upton Sinclair. In his work on The Industrial Re-public, he shows that the aim of the Socialist Party is simply to improve trust methods by the Government. He shows very neatly that Socialists do not desire to destroy the trusts and to throw industrial methods back to the condition prevailing twenty or fifty years ago, but that all Socialists propose to do is to nationalize the trusts, or the industries which they control, for the public good. I cannot do better than read this passage, to show the drift of his argument -
But surely we must destroy the trusts you say. Why must we destroy the trusts? The trusts are marvellous industrial machines, of power the like of which was never known in the world before ; they are the last and most wonderful of the products of civilization - and we .must destroy them. We have been a century building, them - you, and I, and the balance of the American people have toiled for three generations night and day stinting and starving ourselves so that we might get these trusts finished ; we have taxed ourselves ten, twenty, thirty per cent, of our incomes under the disguise of a protective Tariff to maintain and develop, them, and now that they are complete we must destroy them.
– He points to fiscalism there.
– So far as it applies to some trusts, he is quite right. But the greatest trusts have not been brought about owing to protective duties -
But they belong to Rockefeller you protest to me. They belong to Rockefeller in precisely the same way and to precisely the same extent as the kingdom of France belonged to Louis XIV. or the North American colonies to George III. They belonged to the people of the United States, who made them, who contributed every plank of them, and drove every nail of them, and who paid Mr. Rockefeller and his family ample living wages while they superintended the job.
That clearly puts the position of the Labour Party so far as the trusts are concerned. We do not wish to destroy them, or to throw industrial methods back to a primitive state. It could not be done with any degree of convenience and success. It would not tend to the welfare of the people to destroy them. But we do wish to destroy them as private monopolies, in order that the system- which they control may be worked by the Government- for the general good. That is the position of the Labour Party regarding trusts. I am prepared to support the Bill as it stands. So far as I can see, it needs very little alteration. I do not agree with Senator Stewart as to the officer who is to administer the measure. I think the Government official, pointed out in the Bill as the person who will be responsible for taking action and preparing evidence, is the man best fitted for that work. The officer at the head of the Trade and Customs Department - if the office is well filled, as it is at present - is more familiar with our industrial affairs than is, perhaps, any other man in the community. Consequently, he is the best official to administer this Bill. As far as I can judge, there is very little .need for any serious amendment of the Bill, and I shall vote with the Government.
– - It is my intention to vote for the second reading of this Bill, and to support it in Committee in its entirety. But I do not wish it to be assumed that I am any great lover of the measure. I do not believe that it is possible, by any means likely to be adopted under ‘parliamentary institutions, as’ they are at present conducted, to do more than regulate trusts. I doubt whether it is within our power to control them effectively. I think that the Government have been sadly at fault with respect to the administration pf the existing law. They can hardly be congratulated on the courage they have ‘shown, or on the quickness with which they have acted when required to do so. The Act was passed nearly twelve months ago, and the Government was possessed of information, sworn to by witnesses who gave evidence before the Tobacco Commission, as to the existence of a trust. I have read the report of that Commission, which shows that not in one, but in five or six different cases, witnesses swore that a trust existed in that line of business.
– But under the Act the mere existence of a trust does not constitute arl offence.
– I am well aware of that. But the Government, possessed of such knowledge as the general public had, should have been well aware that that trust has acted in a manner detrimental to the best interests of the public. Despite that fact, the Government did nothing to put the Act into operation. They have now brought forward an amending measure, with the object of giving them larger powers in regard to trusts. Apparently) they have at last been brought to a proper recognition of the actual position ; and though I have no confidence that the Bill now before us will accomplish all that is intended, still, it may do some good, and, therefore, I shall support it. I am not going to restrict the power of the Government la accomplish anything that they desire in this direction. I was struck by the confusion of thought existing on the Opposition side in regard to this matter. It is amusing to one who is rather taken up with the collectivist idea to find honorable senators opposite so ready to restrict the logical outcome of private enterprise. The formation of trusts or combines only commenced when private enterprise had practically throttled itself. In nearly every case trusts originated in the desire of men, possessed of large capital, to prevent themselves from compet- ing with and ruining each other. Where a combination is obtained for that purpose it is perfectly justifiable.
– Why is it extraordinary that those who believe in free competition should seek to prevent trusts that would stop free competition?
– Trusts did not come into existence until private enterprise had crucified itself. Originally formed to prevent cut-throat competition, it was found that trusts, owing to their superior organization, had also the effect of eliminating waste labour. By means of superior organization, they were also able to produce more cheaply, and their great power enabled them to drive competitors out of the market. When they have come to their full power, in every instance they have used it in a manner detrimental to the best interests) not only of the trading community, but of the public generally. It has been stated that we have no trusts in Australia, such as there are in America, and that there is no danger of our getting into a similar position. But I would remind those who hold that view of this : That there was a time when the patriotic Americans prided themselves upon the cleanness of their public, trading, and commercial life. We heard nothing of all this terrible corruption in America prior to the rise of the trusts, and we have no guarantee that results similar to those which have taken place there will not follow the establishment of trusts in Australia. Assuming, as Senator McColl says, that the trusts are only in their infancy in Australia, are we to assert that we, the Australian people, are in any way superior to the American ?
– We have not the factors here. The trusts cannot control transportation.
– We do not yet control transportation in Australia. We have no control over the Shipping Ring or the Coal Vend, which are very necessary factors in the question of transportation. I hope that we shall not assume that we. are in any way superior to the American people. I believe that they are quite as good and quite as smart as we are. All the corruption existing in America to-day has been the result of the rise of the trusts, and that only happened when private enterprise had throttled itself. We are not in a position to prove in detail the existence of trusts in Australia, but it is generally admitted and believed by the public of Australia that there are combinations or trusts in the following lines - oil, coal, boot machinery, sugar, bricks, confectionery, tobacco, shipping, meat, insurance and breweries. The recent combination formed by the breweries of Melbourne is an illustration of the power of trusts. As a result of their superior organization, they have been able to eliminate a certain amount of waste labour in the shape of travellers and general employes, but, realizing that they were in for a scoop in the near future, they rather generously pensioned the employes with whose services they dispensed. Does any one think that if the future had held out to them no other prospect than that of continuing on the old lines, struggling one against the other, and paying no dividends, they would have generously pensioned men whose services they had no longer any use for? Of course they would not. The reason why they pensioned the men was that they saw that it was necessary to placate the public by inducing it to believe that they were a generous combination actuated only by a desire to benefit it. It is common knowledge, however, that although the combine have only been in existence a few months, there has already been a large increase in the price whichthey charge for their commodities, and, as their power grows, they will no doubt still further increase the price, until they are able to bleed the public. When a trust reaches that stage it is detrimental to the community generally, and it is time to control it. I have no objection to a trust if it is legitimately carried on, and not charging excessive prices to the public. I believe that it is absolutely hopeless to expect to prevent the formation of trusts, because in nearly all lines of industry, wherever there is free competition, there is an almost complete absence of dividends. The only people who are making any profit out of manufacturing or commerce are either indirectly or directly connected with some trust. The other people are not able to make progress at all. With regard to the large powers proposed to be given to the Comptroller-General of Customs. I candidly admit that I am not a lover of the principle’ of assuming any man’s guilt until he is proved guilty, but at times special circumstances arise which make one accept the inevitable. In this case we have to accept the inevitable conclusion that there is no other way of obtaining the evidence necessary to secure convictions against trusts or combines. But it is not such a dreadful thing after all, because it was discovered that it was practically impossible to make various other Acts effective without assuming the guilt of the person accused. Three times in “Victoria during the last twelve months that principle has been recognised. It has been necessary in the cases of the Licensing Act, the Gaming Suppression Act, and the Police Offences Act - the Vagrancy law - to assume, for the purpose of securing evidence, that each of the classes of individuals aimed at was guilty. There was no objection on the part of the anti-Socialist party, to which a number of honorable senators opposite belong, to the proposition in the Victorian Coercion Bill - the Railway Strike Suppression Bill - to assume the guilt of the men concerned. .
– Does the honorable senator think that that was right?
– I do pot think that it was right. I only accept the principle in this case as the inevitable result of existing circumstances. If it were possible in any other way to secure the evidence necessary to obtain convictions against the people at whom this Bill is aimed, I should be loth to accept a principle of that sort.
– But” the honorable senator thinks that we must get a conviction at all hazards.
– Certainly, if wrong-doing is going an. I do not believe in being a stickler for some old precedent, and allowing justice to be baulked; simply because we are not prepared to adopt new methods of securing convictions. I support the Bill in its entirety. I believe that the Government honestly desire to clip the powers already exercised by trusts and combines in Australia. I heartily wish that their efforts will be successful in eliminating those organizations, although I cannot believe it possible. They have my support in the action which they have taken. I hope that the very best results will follow from this effort to deal with what is an undoubted danger to Austraia.
– I hope it will not be necessary for me to occupy much time, but in view of what has already been said, I desire to point out a fact which has been missed, so far as one can judge from their speeches, by honorable senators opposite. I do not see what they have to be alarmed at in an amending Bill of this description, because it is governed by the original Act, and, before a trust, or combination, or any other similar body can be interfered with, it must be shown that it is acting detrimentally to some Australian industry.
– They must show that they do not act detrimentally.
– The information of which this Bill contemplates the collection is for the purpose of establishing a prima facie case against them.
– Of doing all the preparatory work.
– The object of the Bill is to enable the Government to do all that possibly can be done to bring the trusts or combinations before, not the Comptroller-General of Customs or anybody else, but a Court of law, properly constituted, where they will get all the fair play that a Court of the Commonwealth can give them. They can employ as many lawyers as they like, and all that they have to prove - I think honorable senators opposite will see that in many instances it would not be difficult to prove - is that their action has not interfered wilh any Australian industry. Tt is not what they have done to the consumer, not what they have done to the general public, but the question is what effect their action has had on some Australian industry, taking into consideration the interests of ihe employes and the consumers generally.
– Is the honorable senator correct in saying that th» public interest can be ignored altogether under the principal Act?
– The public interest can be ignored altogether under rhat Act, unless the action of the combine interferes with an Australian industry. That is where the difficulty comes in.
– The public interest cannot be ignored, because rebates granted to traders are inimical to the public-interest
– My view of the Act is that the combine must be acting in restraint of trade. If they were taking too much out of the public, and still it could be shown that they did not restrain trade so far as an v Australian industry was concerned, they would have nothing to fear.
– May I quote the words of the Act? . They are “with intent to restrain trade or commerce to the detriment of the public.”
– But it must be to the detriment of an Australian industry.
– According to the honorable senator’s line of argument, the Standard Oil Company could pot be proceeded against under this Bill.
– They could be, if it could be shown that that restraint of trade interfered with an Australian industry, but not otherwise. I am only giving that as my own opinion, which I have had very good reasons for arriving at. The very inability of the Government to do anything in the past has confirmed me in that view. I desire also to point out to honorable senators opposite that even the original Act or this Bill cannot interfere with any trust or combination so long as they are carrying on legitimate trade, and doing nothing to the injury of the public or of an Australian industry. Consequently they have really nothing to fear while they act fairly. With respect to that awful provision in the Bill to enable the ComptrollerGeneral of Customs or somebody under him to obtain information, there is no intention of endeavouring to obtain information unless some complaint is made or some substantial reason exists in the mind of the Comptroller-General that something wrong is being done.
– And the complaint must, be well founded and thoroughly well substantiated.
– Yes, because we take’ the Comptroller-General of Customs to be an intelligent man, who will not accept the word of any interested party that something is being done in restraint of trade. If a complaint is made he will make preliminary inquiries, and, if he is a reasonable man, he will come to the conclusion either that there is something in it, or that there is not. If he feels convinced beyond doubt that there is something in it, he will take steps to get the necessary” information. I point out to Senator Stewart and others that when he does come to that conclusion he cannot inflict any punishment on any one that resists his inquiries or his endeavours to get information. When he makes the attempt to obtain the evidence that he thinks necessary to establish a case, if the trust or combine, or any other party against whom action is being taken, are doing a legitimate and fair trade, and dealing fairly with everybody, they will have nothing to fear. They ought to be prepared to give the information, but if they are doing wrong, then no doubt they will not think it to their interests to do so. If they refuse, then/ although the Bill provides a penalty of ^50, the Comptroller-General will not have the ultimate power. The matter will have to be brought before a Court, and it will have to be shown before the trust can be punished that they have refused to the Comptroller-General or his officers facilities for obtaining information. When the Comptroller- General has obtained the information, he can take no action to the detriment of the trust. He will report to the Attorney-General who will decide whether it is advisable to proceed against the trust. The Attorney-General must take into consideration the Australian Industries Preservation Act and the provisions of this Bill before he can decide whether the action of the trust has been detrimental to the public by restraining trade so as to interfere with an Australian industry.
– Ledger. - Who will represent the public?
– The ComptrollerGeneral or his officers, and the AttorneyGeneral will be acting in the interests of the public. If the Attorney-General comes to the conclusion that there is a case against the trust, he will take action under this legislation, and the result may be that he will avail himself of the vast legal knowledge of our honorable friend, Senator St. Ledger, and get him to take up the case on behalf of the Crown against the trust. It is possible that the AttorneyGeneral may decide that there is no case against the trust, and then no further action will be taken. But honorable senators must see that, all these preliminary stages having to be gone through, no action is likely to be taken against any trust except on very substantial grounds. Then when at last a case against a trust gets into Court the trust can be represented by the best, legal talent to be obtained in the Commonwealth, and in the same way the interests of the public can be represented. The members of the legal profession should have no objection to the passing of legislation of this description. They should hail it every time. It is for this reason that, in common with many of my friends, I have very little faith in it, because I feel that in connexion with the ultimate proceedings under it there is likely to be too much law, and, possibly, not enough justice. Combines or trusts acting fairly towards the public have nothing to fear. It is only when they act in restraint of trade, or to the detriment of the public in restraining trade in connexion with Australian industries, that they run any risks under the law. Honorable senators opposite have all declared that they are prepared to support legislation of this description to assist the Government and the public to put a stop to the injurious practices of foreign trusts, but their cry is, “ For heaven’s sake, do not interfere with trusts or combinations in our own country, because they have not yet reached the same stage of development that trusts and combines have reached in America and other parts of the world.”
– I am one who hopes they never will.
– I hope they never will, and it is by passing legislation of this description that we will show our anxiety to prevent it. I do not say that we shall be successful any more than the people of the United States have been successful, but every one of these measures, that we pass stands in the same relationship to the trade of the Commonwealth as the policeman does to the traffic in our streets. They will indicate to trusts and combines the necessity for moving on. The Acts we have passed, and which I suppose we shall have to pass for years to come unless the right thing is done by trusts and combines in the interval, will only take the place of policemen making the trusts move on, and do something more to evade the legislation enacted against their operations where they are injurious to the public interest. I hope that honorable senators opposite will have no fear that, under this legislation, any injury will be done to trusts or combines organized in such a way as to give a fair profit to capital, fair remuneration to the workers engaged in the industry, and do no injustice to the community generally.
– If we could secure the conditions described by Senator McGregor in his concluding remarks, we should be an ideal community, but I am afraid we cannot hope for such happy results from this Bill, or from any other legislation that we can pass. In the first place, we had combinations of workmen in unions. That was followed by combinations of capital and employers, and now we are ,going a. step further, and I believe we shall have combinations of employers and employes in certain businesses who will work together for the exploitation of the general public. The shipping companies have agreed with their men to increase wages, and at the same time to increase freights and fares to the general public, who must foot the bill every time.
– Is there anything wrong in that?
– Yes, there is; because there is no one to protect the public. There is nothing in this measure to prevent shipping companies adopting that course. I believe that we shall yet have a number of combines of employers and employes from which the rest of the 4,500,000 people in Australia will receive no benefit, but for which they will . have to pay every time. In my opinion the more legislation of this description that we pass the greater the tendency towards the establishment of such combinations will be. I do not think that the ingenuity of man can frame a law that these people will not be able to evade. Daniel O’Connell, one of the greatest legal lights of the old country, said that the British Parliament could make no law through which he could not drive a coach and four. I listened with great interest to the speech of Senator Millen, who voiced my views in nearly everything he said. We have a Government with a strong majority behind them, but they have not been willing to take action in connexion with the harvester business. Why have they not collected Excise duty under the Act?
– Order ! I would point out to the honorable senator that we are not discussing the question of the Excise duty on agricultural machinery under this Bill. We shall discuss it under another Bill which will come before us by-and-by.
– With all deference to you, sir, I understood that it was discussed yesterday.
– That is so; but it was on another question.
– I was sure that the matter had been mentioned, but I bow to your ruling. The object of this Bill is to enable proof to be given that certain combines are operating in a manner injurious to the public. There is no doubt that we have had combines that have been injurious to the public; it has been proved by the press.
– No; stated by the press.
– Honorable senators opposite accept many statements made in the press as proof when it suits them, and while I accept the honorable senator’s correction, I believe that many of the statements which have recently appeared in the press as to the doings of combines are correct. This is a very drastic Bill, because it actually puts upon an accused person the onus of proving that he is innocent. It is like asking a drunken man to prove that he is not drunk.
– A drunken man could not prove that he was sober.
– Under this Bill a man accused has to prove his innocence. It is a principle of British law to regard every man as innocent until he is proved to be guilty, but this Bill provides that when a man is accused he must prove that he is innocent. The proposed new section isa provides that -
In any prosecution for an offence against sections 4, 5, 7, 8, or 9 of this Act the averments of the prosecutor contained in the information, declaration, or claim shall be deemed to bc proved in the. absence of proof to the contrary.
So that when a man is charged under this Bill, the charge is deemed to be proved unless the person accused can prove that he is innocent. Is that; in accordance with British law or with the law of British speaking people?
– That provision is in the British Customs Act.
– It is going very far indeed. Now, with respect to the ComptrollerGeneral, we know that what is meant is the Minister of Trade and Customs pf the day. We know that if the Minister says that there shall be no prosecution, none will take place, and the reference in this Bill to the .ComptrollerGeneral is only a figure of speech.
– It is no figure of speech when we have to provide his salary
– The honorable senator is quite right; that .is a matter of pounds, shillings, and pence. From what has taken place in the past, we know that if Ministers do not approve no action is taken. I am debarred, sir, by your ruling, from referring to the matter, but every one here, and a great many persons outside, know that it is quite true that the Minister hides himself, as it were, behind the Comptroller-General, who has to do what he is told. If he is granted this power, he can appoint any person, fit or unfit, to exercise it. If ought to be intrusted to a Judge of the High Court, and not to the Comptroller-General, or the Minister of the day. It is very dangerous to intrust the power to any man except a Judge, who could hear the case and decide whether a man was innocent or guilty. . I do not intend to oppose the second reading of the Bill, but in Committee I shall be ready to support any amendment to improve the clause to which I have referred.
Senator Lt.-Colonel GOULD (New South Wales) [3.31]. - Before the Minister replies, I desire to say a few words with reference to the measure. There is no necessity, I think, to discuss whether or not the legislation enacted during 1906 should have been passed. It was enacted, and the Government now say that thev require further powers to enable them to carry out its provisions. This Bill contains no proposal to abolish that Act or to repeal any provision of it. I agree with honorable senators that where combines are shown to be detrimental to the public interest, and to fall within the class of cases referred to in that Act, it is our duty to assist the Government, so far as we reasonably can, to deal with the difficulty. I also recognise that, within the last few years, we have been confronted with a set of circumstances entirely different from what we were confronted with previously, with regard to not only trade and commerce, but also very many other matters. There is no doubt that, to a certain extent, it may be necessay to amend our methods and to abandon some of our preconceived ideas and notions. But in dealing with principles which have been recognised as those on which the law should be administered, we ought to .consider carefully any proposed ‘ departure from them, and also how far we are justified in making that departure. We ought not to depart from accepted principles until it has been abundantly proved that thev are not good enough to conduct us in the way in which we desire to go. Much has been said in regard to a provision of this Bill being against British traditions and British practice. It has been argued that it embodies a principle of Australian law; but I take exception to that statement. The only Act in which such a provision is found is the Customs Act, and “it was enacted in that case to enable the Government to prevent smuggling and dishonest practices in connexion with the importation of goods. It is generally conceded that a provision of that drastic character is required in a Customs Act. We were then assured that we could rely upon the discretion and care with which the Minister or other person would use the powers conferred by that Bill, and that they would only be made use of when other powers were found to be insufficient to protect the public interest. But is this a provision which we ought to enact? We are told that trusts are inimical to the public interest, and that every means ought to be taken to suppress them. Crime of every kind is inimical to the public interest. But if it were proposed that every man who was charged with the commission of a crime - a theft, a murder, or a burglary - should be brought up and examined as to whether he had committed the crime, and examined in the circumstances which are supposed to surround the commission of crime, honorable senators would say at once that it must be abundantly proved that we would not ourselves commit a crime by punishing persons who were’ innocent. If honorable senators are going to drag out to its full extent the doctrine which has been mentioned here, they will have to adopt the principle which is practised on the Continent, where a man is arrested, and then interrogated, in order if possible to extort from him a confession. That, we know, is entirely opposed to the traditions of British law. The principles which prevail to-day under British law are not the growth of yesterday. Gradually - in century after century - they have grown up, and in the interest, not of the ruling classes, butof the poorer classes - those who could not protect themselves as men of wealth and influence could do. Every advance which has been made in regard to those principles of British law has been in the direction of protecting the weak. It behoves us to consider well how far we ought to depart from principles which have been the growth of centuries.
– Must our methods of detecting crime nevervary?
.- No; I have admitted that as circumstances change so must our systems change, but before we abandon recognised principles we should be satisfied that we are being asked to adopt something better.
– Which is exactly the case.
– And which will not recoil ultimately upon ourselves. It should be remembered that every step we take may be followed by another step, and by still another step, so that we need to consider well how far we should go. The Bill may be said to contain two proposals - first, the proposal under which charges may be made against individuals, and secondly, the proposal to obtain evidence which may benecessary before an effective prosecution can be instituted against a person. With regard to the commission of an offence, we are asked to enact this provision -
In any prosecution for an offence against sections 4, 5, 7,8, or9 of this Act the aver ments of the prosecutor contained in the information declaration or claim shall be deemed to be proved in the absence of proof to the contrary, but so that -
the averment in the information of intent shall not be deemed sufficient to prove such intent, and
in all proceedings for an indictable offence the guilt of the defendant must be established by evidence.
Paragraphs a and b modify the stringency of the clause to a very great extent, because in a case of restraint of trade the real offence is when -
Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination, in relation to trade or commerce with other countries or among the States -
with intent to restrain trade or commerce to the detriment of the public; or
with intent to destroy or injure by means of unfair competition any Australian industry -
– That is the main feature.
.- As the Minister interjects, the main feature is the intent. The act may be committed, but the question arises : Was there the intent, when the act was committed, to effect the object which is condemned by this particular provision ? As there is a certain amount of confusion in the minds of honorable senators, it may be well to consider how far this clause goes. I admit candidly that I do not like the clause, and that I would prefer to have everything proved against a man before he. is held to be guilty. But when it is stated that there is no possibility of the Government instituting proceedings, although there may be in the mind of the Minister or the ComptrollerGeneral of Customs a reasonable belief that an offence has been committed against the Act, I am prepared to go so far as to accept the clause as submitted, because of the safeguard which has been provided by requiring proof of intent, and also requiring that a man must be proved by evidence to be guilty of an offence, if it is indictable, before he can be punished. So much for the provision itself. I am relying upon the statement made by the Government that they cannot initiate a prosecution, although there maybe a well-founded reason for doing so, without such additional power’ as they now ask for. The next portion of the Bill empowers the Comptroller-General to hale before him any man he sees fit, to be examined, and on that examination to found a prosecution, and to convict him of an offence against the law. I ask the attention of honorable senators to this provision -
His answer shall not be admissible in evidence against him in any civil or criminal proceeding other than a proceeding for an, offence against this part of this Act.
That shows clearly that it is contemplated that the Comptroller General shall have power to examine an individual, and, if he can, extract from him certain statements which will show that an offence has been committed, or induce a jury to come to that conclusion. That evidence may be used against him on his trial. Some honorable senators may ask : If a man is guiltv of intent, why should he not be punished, even on his own admission? But they should always bear in mind that we have laid down the principle not to seek to extract from a man by force an admission of his guilt. If a person is willing ‘to admit his guilt, well and good, and there is no better known rule with regard to criminal proceedings than the one that if inducements have been held out to a man to make a confession, it cannot be used against him in evidence. We have no protection provided in the clause. Let me point out the inherent weakness of the provision which the Government ask us to pass. Any man may be haled up and asked questions. If he fails or refuses to reply to any questions, if he is asked to produce a document and declines to do so, he will be liable to a penalty. Suppose that when a question is put a man deliberately tells an untruth. Honorable senators may say that probably he has been guiltv of an offence. If he has been guilty of an offence,- is it not equally probable that when the question is put he will say that he did not do sc-and-so? He may give an absolutely false answer, and there will be no means of punishing him, but if he gives no answer at all, he may be fined.
– That is only a detail, but it is not correct.
-Colonel GOULD.- I should like to say that no statement which I have made or intend to make with reference to this Bill will be knowingly incorrect.
– You said that if the person’ made a false statement he could not be punished. He can most distinctly, be punished under the terms of the Bill.
.- Will the honorable senator point out the terms of the Bill where that is provided?
– Certainly - clause - 2.
-Colonel GOULD. Subclause 2 of the proposed new section 15B says -
No person shall refuse or fail to answer questions or produce documents when required to do so in pursuance of this section.
– Read clause 2 - the definition of “ answer questions.”
– It is as follows: - “ Answer questions “ means that the person on whom the obligation of answering questions is cast shall, to the best of his knowledge, information, and belief truly answer -
-“ Tru Truly.”
-Colonel GOULD. - all questions on the subject mentioned that the Comptroller-General or the person named by him shall ask.
I had not noticed that paragraph, and I ‘ admit that there’ is justification for the interjection of the Minister. The only exception that I take to his interjection is that he did not simply draw my attention to the provision.
– Unfortunately, I could not rise to a point of order.
– Who would decide it if the Minister did ?
.- The honorable senator knows that it was merely a mistake - that I had not noticed that paragraph - and that he could easily have pointed it out.
– But the President is taking up a partisan attitude, and that is why I spoke warmly.
.- The honorable’ senator has just made an interjection which I say is not justifiable - namely, that I have taken up the position of ‘ a partisan. I have not done anything of the kind. While I occupy the position of President of this Senate, I shall exercise my right to speak upon any measure that may be before the Senate on which I wish to express’ an opinion. But, while I do that, I shall not intentionally make a partisan speech.
– Certainly not intentionally.
.- There is in this Bill the provision that the ComptrollerGeneral shall be intrusted with certain powers. I have taken exception to those powers being placed in the hands of the Comptroller-General. Let me point this out. The Comptroller-General is simply a. public officer under the direction of the Government of the day. This Government, or any other Government that may be in existence must, if it is to retain office, be supported by a majority in Parliament. It is possible that a political party might exercise such an influence over the Government of the day as to cause inquiries to Le made by the ComptrollerGeneral respecting individuals or combina- tions, which inquiries ought never to be made.
– What injury would accrue ?
.- There would accure a degree of uncertainty as to the position of persons who were carrying on business. It is well, no doubt, to have a drastic law where the circumstances of the case demand it. But the public should be able to respect the law, and be satisfied that it is being administered upon such lines that no honest man could reasonably take objection to it. What I say is that where it is proposed to place great powers in the hands of the Comptroller-General, as under this Bill, it is extremely likely that the measure will fail to command the respect of the public, and their respect is essential if a law is to be effective. These considerations point to the desirableness of intrusting a Judge with the duty of making these inquiries. But the suggestion has been made that it is not practicable to intrust these functions to a judge - that he will not have time to make the inquiries or may not understand the ins and outs of trade and commerce. While admitting ‘that, my opinion nevertheless is that if these provisions are to be adopted the powers which they confer should be exercised by a’ Judge, or should be under the control of the Court. Let me explain to honorable senators what I mean by that. As the law stands at present, it is possible, in civil proceedings, to obtain what is termed “ discover/.” That is to say, it is possible to secure the production, of documents pertaining to a case. It rs also possible to have ‘interrogatories administered. A party to a suit may, in accordance with that process, have questions put to him that are considered by a Judge to be pertinent to the case.
– After the proceedings have been instituted.
– And only in civil proceedings:
.- Yes; that is so. In matters of this kind, a Judge would not be likely to authorize interrogatories to be put to a man, the answers to which would be of a nature to incriminate him, unless the law made provision to that effect. What I would suggest with regard to this provision is this : If the Comptroller-General has grounds for believing that an offence has been committed against the law, I would allow ‘him to make an application to a Judge - an ex parte application, if that is considered desirable - for permission to. have questions put and documents pro,duced. He should be enabled to put such questions as ‘the Judge thought fit to. allow, even though the answers might incriminate the individuals.
– That would mean goodbye to the Bill.
– These questions might be answered on oath.
– Would they be made to a Judge sitting in open Court?
– They might be made to a Judge in chambers.
– Then there would’ be publicity.
– Not necessarily. An application can be made to a Judge in chambers when no one is present but the applicant. If it is thought desirable, provision might be made to that effect, and the Comptroller-General authorized, where he thinks there has been an offence committed under the law, to go before a Judge, and,, upon satisfying the Judge that there was prima facie evidence,, be empowered to ask for an order under which full inquiries might be made, which the Judge might be authorized to grant. The Minister in charge of this Bill says that if such a provision were made, it would mean “ good-bye to the Bill.” But the Bill might be all the better for such an amendment. We have been used to a procedure of the kind I have described. Why do we appoint our Judges under the conditions subject to which they hold their positions? Because we have confidence in their integrity. We put them almost above the power of Parliament. No Judge can be removed except on an address from both Houses of the Parliament, and then strong reasons must be shown for his removal. Practically, it has to be shown that a Judge is either corrupt or incompetent before he can be removed. But no man is placed in the position of a Judge of the High Court unless there is an absolute feeling on the part of the public that he is not only a man in whose integrity they have confidence, but also that he is a man on whose intelligence and’ ability Chey can rely. I believe that if we made a provision of this character it would commend the Bill to the public, because they would see at once that. there was no desire to allow any possibility of unjust action being taken, or unjust inquiries made concerning a man’s personal or private affairs. Before the ComptrollerGeneral could get an order to make these inquiries, he would have to make application to the Judge, and, if there were sufficient grounds, the Judge would, grant it.
– We are very solicitous after criminals, evidently.
– The Minister is very keen for his Bill, and, therefore, I make allowance for many things that may be said. But will he be kind enough to tell me this : Does he say that a man charged with the commission of a criminal offence should be asked by the Inspector-General of Police, or whoever might be the principal officer in charge of criminal procedure, such questions as that officer might see fit to put, with the view, as this Bill proposes, of obtaining evidence that would convict him of the offence with which he is charged?
– It would probably have the effect of relieving the accused from a public stigma.
– But does not the honorable senator see that if a man is charged with the commission of an offence, and if the charge is investigated in open daylight, then, if it fails, it is the best exoneration he can have?
– That is what we want to avoid.
– It is one of the greatest mistakes than can be made in dealing with matters of this kind, where a man may Le charged with a criminal offence, to make such inquiries in private.
– But you suggested an inquiry in private just now. .
.- I suggested obtaining leave from a Judge to make inquiries, because the Government, in this Bill, propose that inquiries shall be made by a political officer.
– Is the ComptrollerGeneral a political officer?
– Is not the Comptroller-General under the direction of his Minister?
– Not so far as concerns the possibility of his dismissal.
– The position he holds is, .1 believe, provided for by Act of Parliament, but is in other respects akin to that of an ordinary public servant. My objection is that these inquiries ought to be made by an officer holding an independent position.
– I desire to rise to a point of order. I wish to know whether it is in order for any honorable senator to discuss at this stage, and on this Bill, the tenure of a Judge of the High Court or of the Comptroller-General ?
– It certainly is not in order to discuss the value of the tenure of the officer in question, but it is, I think, in order to allude to facts.
-Colonel GOULD.- I do not wish, for a moment, to take a line of argument which any honorable senator may consider to be incorrect. I shall not deal further with the question of the tenure of the Comptroller-General, for that reason. But I do wish to draw a distinction between an officer who holds a position, not at the hands of Parliament directly and’ a Judge of the High Court.’ I should be perfectly prepared to give the honorable senator every assistance in the direction of making provision for a Judge to have power to grant authority to make any inquiry that might be considered necessary. I think that if a provision of that kind were made, the public would have absolute confidence in the procedure. It would help to make the public respect the law. As I have previously said, one of our great aims in regard to legislation is that there should be a consensus of opinion that the law is entitled to respect. There should not toe any possible ground for suspicion that any individual may be proceeded against on improper grounds. I do not desire to say any more with regard to this matter, ‘except to assure my honorable friend, the VicePresident of the Executive Council, that I have had no desire to make a partisan speech.
– You did not make it with any desire to assist in passing the Bill.
– The Minister should keep his temper.
– I shall certainly do that.
.- I have made these remarks with’ a view of pointing out the direction in which I think such legislation might fairly go; and, while my suggestions do not follow exactly on the lines that the Government has laid down in this Bill, they do follow the principle that the VicePresident of the Executive Council enunciated in introducing it. If my suggestions were adopted, they would enable the Government to institute a prosecution, or to obtain answfers to questions, under such circumstances that, while there was no fear of any denial of justice, there would, at the same time, be a guarantee to the public that they might have confidence in the administration of the law.
– That is a matter of opinion.
– As the Minister says, it is a matter of opinion ; and I take the view that I am entitled to my own opinion. That is the reason why I have taken up this position to-day. I wish the honorable senator to dispossess his mind entirely of the fancy that I have spoken with any desire to destroy a Government measure or to support any partisan issue. But I do think that it is only a fair thing that, if I entertain strong views with regard to a matter of this kind, I should be at liberty to place those views before honorable senators. The official position which occupy would simply be intolerable to a man if he were precluded and debarred from expressing his opinions on a matter of grave public importance.
– In what way are you sought -to be precluded?
– The honorable senator should not address the Chair with his hat on.
– That is a matter for the President.
– I was referring, when I was interrupted, to the interjections. I have said what I have to say with regard to the measure, and it is for honorable senators to form their own conclusions, and arrive at their own judgments, as to which is the correct course.
– I desire to ask you, sir, if, while occupying the position of President, you exercise your undoubted right to address the Chamber as Senator Gould, it is within your power to call honorable senators to order?
– I shall reply to the honorable senator by saying that I prefer to wait until the occasion arises on which it is necessary to answer that question.
– You called me , to order, and I want to know whether I am to observe your ruling.
Debate (on motion by Senator Clemons) adjourned.
Bill presented and (on motion by Senator Keating) read a first time.
Motion (by Senator Best) proposed -
That the Senate do now adjouin.
– I understand that the Minister of Home Affairs has some information with regard to questions which I asked during this or last week. One was, as to what year is used, in determining the quota of the Defence Forces of the various States; and the other was, whether he has yet received a report as to the alleged handing out of defective ammunition to cadets in Sydney. I shall be glad if the Minister will give, me any information hepossesses on those matters before the Senate adjourns.
.- At about this time last year, I was successful in having embodied in the Excise Tariff (Spirits) Act certain conditions with regard to the labour employed in the distilling industry. That Act comes into operation to-morrow. Unless the eighthours principle is recognised and reasonable conditions of labour observed, the penalty is an additional Excise. I learn from the press that the Minister of Customs has sent word - if the newspaper reports are correct - to the various distillers, pointing out to them the obligations with regard to working conditions which devolve upon them from to-morrow. I wish to say distinctly and definitely that, so far as I am concerned, something more is required, If the same course is to be followed in connexion with the new protection principle in the distillation’ of spirits as has been followed in connexion with the harvester business, it will be most unsatisfactory to those who are expecting an amelioration of their position, and who ought to get it without any hesitation when an Act of Parliament gives it to them.
– Is the Excise payable to-morrow ?
– Yes Yes. In connexion with these distilleries, Government officials - Excise officers - are intrusted with certain work. The Government ought, from to-morrow, to collect the additional Excise from all distillers in the Commonwealth.
– As they have done with the harvesters 1
– I am going ‘to force this position. From to-morrow I expect the Government to collect the additional is. Excise duty from all distillers throughout the Commonwealth who receive advantages under the Excise Tariff Act of last year, on the following lines: - Brandy distilled wholly from grape wine ; blended wine brandy distilled from grape wine; wh’isky distilled wholly from barley malt; .blended whisky distilled partly from barley malt; rum distilled from molasses; gin distilled from barley malt, grain, or grape wine; spirits, n.e.i. ; spirit for industrial or scientific purposes ; spirit for fortifying Australian wine 01 for making vinegar ; and spirits for the manufacture, from Australian products exclusively, of scents and toilet preparations.
– Does not the honorable senator think that he ought to give the Government twelve months first to bring in an amending Bill ?
– That is merely an aside. The distillers have had twelve months’ notice as to the working provisions embodied in the Act. I know from letters that I have received from Queensland that, prior to the passing of the Act, there were men working for seventy hours a week in the distilleries in receipt of ‘as low a wage as 4s. 6d, and 5s. a day. That is not a reasonable wage, and seventy hours a week are not reasonable hours for men. to be called upon to work in Australia.
– Perhaps they were only “ improvers.”
– If they are called “improvers” in Queensland, I expect the assistance even of those honorable senators who are opposed to the Labour Party on certain questions, in my endeavour to see that the Act is carried out in its entirety. I hope that the Minister of Trade and Customs will not go kite-flying in connexion with this Act, and that the paragraphs which are appearing in the press, appealing to distillers to recognise the Act, will not l>e continued. I expect the Minister of Trade and Customs, having the power under the Act, to say to the distillers, “ From to-morrow you will have to pay this additional Excise, and if you observe the- conditions embodied in the Act, the Excise will be returned to you.”
– And let them prove that they are observing the conditions.
– Let them prove it, instead of the workmen, who are toiling for long hours in some of the distilleries, and receiving a beggarly pittance, being called upon to shoulder the burden of the responsibility and expense of showing that an Act which is intended to benefit them is being disregarded.
– It does not matter what the conditions are, the Excise should be paid until the distillers get certificates of exemption.
– Exactly. It is not for the Minister of Customs or for a Court to inquire whether the industry is paying big dividends, or any dividends at all. Section 3 of the Act says that the duties specified in the schedule shall be charged, collected, and paid for the use of the King, for the purposes of the Commonwealth. I ask, therefore, if the Minister will see that the provisions’ of “ the Act are enforced to-morrow, and distillers called upon to pay this Excise until they have proved that they are giving to their employes reasonable rates of wages and fair conditions.
Senator Colonel NEILD (New South Wales) [4. 1 1 J. - I appreciate the new-born’ zeal and lately discovered enthusiasm of Senator Findley.
– I was enthusiastic in regard to this legislation when the honorable senator and his party were opposing it. His is a new-born zeal.
– I am sorry that the honorable Senator’s new-born zeal has not been sufficient to cause, him to give assistance, in accordance with the demands made upon his party, by the Trades Hall and the employes of the Sunshine Harvester Manufacturing Company, in securing to them during the past nine months the benefits which should have accrued to them under the Excise Tariff Agricultural Machinery Bill. However, as he has now turned over a new leaf, I shall be. happy to give him all the support in m» power. But if he will look at the Act to which he ‘has referred, he will find that the presentation of a joint address of the two “Houses of Parliament is necessary to enable anything to be done under it.
– The Excise could be collected, and the joint address presented subsequently.
– I disagree with* Senator Neild on two points. I” am not here to defend Senator Findley who is well able to defend himself ; but the statement made about him was not fair. To the best of my recollection, he first proposed in this Chamber the adoption of the principle embodied in the Act, and, as a lover of fair play, I protest against the suggestion that his zeal is new-born. With regard to the presentation of a joint address, I do not think that it would be reputable for - the Ministry to make that an- excuse for not dealing with this question. In my opinion, it is well within the powers of the Executive to enforce the Act to-morrow.
– The honorable member is under a misapprehension.
– What would happen if Parliament were not in session?
– I “hope that when Senator .Best explains the legal position, he will say, that the Ministry will not hesitate to take the responsibility of giving effect to the Act, even without the presentation of a joint address.
– Why have Ministers not moved in the matter if a joint address is necessary?
– If a joint address is necessary, the Ministry should take steps to’ arrange for it.
– The Act cannot come into force until to-morrow.
– The Ministry has taken no action to secure the presentation of a joint address in connexion with the harvester Excise, and, therefore, we are justified in assuming that Ministers will not take action under the Act to which reference has been made. I am of opinion, that it is derogatory to Parliament to allow a Statute to remain unrecognised and unapplied. Seeing what has happened inconnexion with the harvester Excise, Senator Findley was quite justified in bringing this matter under the notice of the Ministry, with a view to prevent the continuation of inaction. I shall support Senator . Findley in every way in his efforts, to compel Ministers to give effect to the desire which they have professed to secure to all employes - fair wages and reasonable conditions. Many of us know that the wages paid in the distilling industry, and the conditions of employment are not what they should: be, “ and the collection of this Excise will do a good deal towards altering this state of affairs. We should simply inform the distillers that, unlessthey pay fair wages, and allow proper conditions, this penalty will be imposed. In my opinion, they would rather do what is right in respect to their employes than pay the Excise. Therefore,. I think that ‘it should be imposed at once,, in order to bring about what we desire.
.- Se Seeing that the business of theSenate has become very heavy and pressing, I, as a young member, would like the Minister to state clearly what questions are to be dealt with next week and the week after. I find it difficult to ascertainexactly what the order of business is tobe.
– Have I on any occasion’ failed to give a clear indication to theChamber of the order in which business isproposed to be taken?
– I do notblame the honorable gentleman, but, as a. new member, I should like full information on the subject. We are being verymuch rushed at the present time.
– Senator, Pearce, a short time ago, asked a questionas to the allotment of units to the field . forces and garrison, troops in the variousStates. The basis on which that was de- termined was the estimated population ofthe States on the 31st March, 1901, thedate on which the Department of Defencewas transferred to the Commonwealth. The further information for which, heasked is contained in the following report , from the Department of Defence - (1) In February, 1907, the Military .Com- . mandant forwarded the results of tests carried*’ out in his district with the following . 310 ball ammunition : -
These tests were carried out by firing from the shoulder and showed -
Some very good and some very bad.
Elev’s. C.A.C..N.Z. C.A.C., Mel. 1st day - 3.16 inches 3.1 inches 4.34 inches 2nd clay- 2.454 3.018 3.S58
Although in these tests the ammunition made in Victoria did not give such good results as the other two, it was still well under the sixinch figure of merit laid down in the specification.
Since the 15th March all . 310 ball cartridges made by the Colonial Ammunition Company Limited have been loaded with 4% grains of powder instead of si, which was the approved charge prior to that date. Better results are obtained with the reduced charge.
– I am very glad that Senator Findley has brought up this matter of the Excise, so far as spirits are concerned, because he has afforded me an opportunity to at least remove a . misapprehension that appears to exist in regard to the matter. The first paragraph of section 2 of the Excise Tariff Act of 1906 imposes certain duties of Excise, and the section then goes on to provide -
That all spirits distilled in Australia and not having been matured by storage in wood for a . period of two years ‘may until the 31st day of December, One thousand nine hundred and seven inclusive, be delivered at the respective rates of duty specified in the Excise Tariff 1902.
Provided further that if any distiller -
Does not after the expiration of one year from the passing of this Act -
That is to say, after the expiration of a year from the 12th October, 1906 - pay his employes a fair and reasonable rate of wages per week of forty-eight hours ; or
Senator Findley will observe from this, that, after the 12th October, 1907-
– That is to-morrow.
– After that date it will be the duty of the distiller to satisfy the Minister that he is paying fair and reasonable wages per week of forty-eight hours, and that he is not employing more than a due proportion of boys to men in the industry. It is after the 12th October that he has to do that. That means that the distillers must be given time to satisfy the Minister in that regard, and should -they fail, I will say, even within a limited time-
– What does the honorable senator call “ a limited time “ ? They have had twelve months’ notice.
– That is all the more reason why they should not get an extended time. What I am pointing out to my honorable friend is that it is after the expiration of the twelve months’ period from the passing of the Act that these men have to get to work to satisfy the Minister that they are complying with the terms and conditions of the law.
– They have not merely to satisfy the Minister. They have actually to pay fair and reasonable wages after the 12th October, 1907.
– The Act says-
Provided further that if any distiller -
Does not after the expiration of one year from the passing of this Act pay his employes -
– That is what I say. The honorable senator has said that twelve months after the passing of the Act the distiller must satisfy the Minister, whilst the Act says that he must actually pay a proper rate of wages after that date.
– The point I aim urging is that he must satisfy the Minister as to the payment of reputable wages.
– Do the Government assume that the distiller is paying fair wages ?
– Certainly not. The obligation is cast upon him to show that he is doing so.
– Does the Act prescribe any procedure by which the distiller is to approach the Minister to satisfy him on the point?
– Yes; he must at once satisfy the Minister that he is paying fair wages.
– Will the Minister allow me to say that he will not find those words in the Act?
– Let me read the provision again -
Provided further that if any distiller -
Does not after the expiration of one year from the passing of this Act pay his employes a fair and reasonable rate of wages per week of fortyeight hours ; or
employs more than a due proportion of boys to men engaged in the industry.
Then, if that is not done, the GovernorGeneral has power, but only after a joint address has been passed by the Senate and House of Representatives, to issue a proclamation. The passing of the joint address is a condition precedent to the issue of the proclamation. The point I am urging is, that it is quite impossible to levy, as has been suggested by Senator Findley, this additional tax on the 13th October.
– Why is it impossible?
– I think it can be levied to-morrow.
– There is no law which permits it to be done.
– It is a matter of detail.
– It is not a matter of detail.
– There is not a word in the Act about satisfying the Minister.
– The distiller has to satisfy the Minister that a fair and reasonable rate of wages is being paid to his employes.
– The Act does not say so. The honorable senator is putting words. into the Act that are not in it.
– It does say so.
– I am astonished that the Minister should say that it is in the Act, when there is nothiifg in the Act to say that the Minister must be satisfied. The Act merely says that these men must pay their employes a certain rate of wages.
– Why does the Minister keep repeating to us that the Minister must be satisfied?
– Because the Minister has to administer the Act.
– There is not one word in the Act about satisfying the Minister.
– Then who has to be satisfied ?
– The employes have to be paid.
– Undoubtedly, and I said so; but, at the same time, the Minister has to be satisfied that fair and reasonable wages are being paid.
– Do not read that into the Act ; it is not there.
– I am not departing from the Act in one solitary word. What I am urging is that the responsibility is cast on the Minister, if he is not satisfied that fair and reasonable wages are being paid, of introducing into Parliament the necessasry motion for the purpose of imposing the additional Excise.
– Is the position not that the Minister has power to collect the Excise, and to throw the responsibility on the distillers as to the wages?
– Distinctly, and emphatically, no.
– Have the distillers been called on to show what wages they are paying?
– I shall come to that matter. I repeat that if the Minister is not satisfied that fair and reasonable wages are paid, the responsibility is cast on him of introducing the necessary motion in Parliament, and, the motion having been passed, the Governor-General is then authorized, and then only, to issue the proclamation. I ask honorable senators to bear in mind that, as. a mafter of law, taxation Acts are always read with the strictest rigidity. I desire to say that the Minister has not been unmindful or neglectful in this connexion, because, on the 9th October, 1907, he issued the following circular to the Collectors of Customs in all the States -
Attention is drawn to the fact that the “ one year “ provided for in secLion 2 of the above Act will expire on 12th inst., and the Collector is, therefore, instructed to advise all distillers in his State of the terms of the said Act, and warn them of the necessity for the strict compliance with its provisions.
– A similar circular was issued in regard to harvesters, but no notice was taken of it.
– It is very easy to interject in that way, but the honorable senator asked the Government to undertake a duty which- they have no power to undertake. The honorable senator must bear in mind, moreover, that he is addressing a Government who ane not only the authors of the Act, but are in full sympathy with its objects.
– The Government did not want this provision to be passed, and they opposed it. The provision was carried in spite of the Government.
– It was.
– If I remember rightly, ex-Senator Flayford, who was in office at the time, said he did not think it was, within our powers under the Constitution to make the provision.
– Ex-Senator Playford said more than that.
– To the best of my recollection, that is what he said.
– And in order to show his sympathy, be voted against the amendment.
– I assure the honorable senator that, so far as the . present Government are concerned, they are completely sympathetic, and I shall bring his representations under their attention. I do not hesitate to say that it will not be necessary to urge on the Minister any further performance of his duty in connexion with this matter.
– That is a strong promise, and I hope it will be carried out. We desire to assist the. Government in this matter.
– I am glad to hear that. However, I hope honorable senators now see the legal position.
– I do; but I think the Government might go further, all the same.
– Senator St. Ledger asked me a question as to the order of business for next week. I am not aware that on any occasion any honorable senator has ever been in doubt as to the order of business for the day.
– I quite agree with that; it was my own fault entirely.
– There is a very important matter of privilege, although it appears in the nature of private members’ business. The Committee of Disputed Returns and Qualifications have presented a report, and the consideration of it is set down for Wednesday next. Senator Symon consulted me, and I said I had no objection - in fact, I deemed it my duty - to permit the consideration of the report to be the first business for that day. The next business will be the Bounties Bill, which is at the third-reading stage; and then follow the Australian Industries Preservation Bill, and, probably, the Excise Tariff Declaration Bifl, though I cannot pledge myself as to which of the two latter measures will be taken first. The remaining measures are the Quarantine Bill and the Navigation Bill.
Question resolved in the affirmative.
Senate adjourned at 4.35 p.m.
Cite as: Australia, Senate, Debates, 11 October 1907, viewed 22 October 2017, <http://historichansard.net/senate/1907/19071011_senate_3_40/>.