Senate
8 December 1909

3rd Parliament · 4th Session



The President took the chair at11 a.m., and read prayers.

page 7210

QUESTION

CIGAR LEAF

Senator PEARCE:
WESTERN AUSTRALIA

– Is the Minister of

Trade and Customs yet in a position to furnish the Senate with any information regarding the number and the names of the growers of cigar leaf in the district of Texas, Queensland, who have received the bounty ?

Senator Sir ROBERT BEST:

– I caused inquiries to be made concerning the names of the persons to whom the bounty had been paid on tobacco leaf for the manufacture of cigars in Texas, and a report has just been received from the Collector in Queensland to the effect that no bounty was paid during last year.

page 7210

QUESTION

WIRELESS TELEGRAPHY

Senator KEATING:
TASMANIA

– I desire to know if the Vice-President of the Executive

Council is now in a position to furnish the information which I asked for recently regarding the forthcoming Inter-Imperial Conference on the subject of wireless telegraphy ?

Senator MILLEN:
Vice-President of the Executive Council · NEW SOUTH WALES · Free Trade

– The Conference will be attended by representatives from the Admiralty, New Zealand, the High Commissioner for the Western Pacific, and the Commonwealth, and presided over by the Postmaster-General. The purpose of the Conference will be to inquire into the question of wireless telegraphy in Australasia and with the islands of the Pacific, and the first meeting will be held in Melbourne on the 15th December.

page 7210

QUESTION

NAVY WAR COUNCIL

Senator DOBSON:
TASMANIA

– Has the VicePresident of the Executive Council seen the memorandum which was issued by the Admiralty in October, announcing the establishment of a Navy War Council for the purpose of considering and working out war plans, and by which it is provided that the First Sea Lord, who is to be the President, may call in responsible advisers other than those mentioned therein ? Is it his intention that representatives of the oversea Dominions shall be called in to assist that Council, and, if not, why is that omission to be made, seeing that we are trying to establish an Imperial Navy ?

Senator MILLEN:
Free Trade

– My honorable friend has opened up a very large question indeed ; but probably it will suffice if I inform him that I understand that, as the result of the recent Imperial Conference, the idea of a body which would occupy, with regard to the Navy, a position similar to that occupied by the General Staff with regard to the Army, is under consideration.

page 7210

QUESTION

HIGH COMMISSIONER

Senator NEEDHAM:
WESTERN AUSTRALIA

– Will the VicePresident of the Executive Council be in a position to announce, before the close of the session, whom the Government have chosen for the position of High Commissioner, or can he say whether an appointment is likely to be made before that event?

Senator MILLEN:
Free Trade

– All I can state at present is that the matter is now under the consideration of the Cabinet.

Senator NEEDHAM:

– How much longer will the question of the appointment of a High Commissioner be under consideration by the Government?

Senator MILLEN:

– The Government will naturally consider the matter until a determination is arrived at.

page 7211

QUESTION

NORFOLK ISLAND

Senator MILLEN:
Free Trade

– The Bill is before the other branch of the Legislature, and though the Government are desirous of getting it put through, I can give no information at present as to the prospect of it reaching the Senate.

page 7211

PAPERS

MINISTERS laid upon the table the following papers -

Census and Statistics Act 1905. - Population and Vital Statistics of the Commonwealth for theYear 1908. - Bulletin No. 14.

Public Service Act 1902. - Documents in connexion with the promotion of Mr. William Williams to the position of Postmaster, Grade II., 2nd Class, Geelong.

Public Service Act 1902. - Amendment of Regulation 142. - Statutory Rules1909, No. 130.

Lands Acquisition Act 1906. - Return showing Land disposed of under Section 63 (1.) (a).

Excise Act1901. - New Regulation 134A (Working Days and Hours in Factories). - Statutory Rules 1909, No. 132.

The PRESIDENT laid upon the table

Audit Acts 1901-1906 -

The Treasurer’s Statementof Receipts and Expenditure during the Year ended 30th June, 1909, accompanied by the Report of the Auditor-General.

Ordered to be printed.

Transfers in connexion with Accounts of the Financial Year 1908-9. - Dated 7th December, 1909.

page 7211

QUESTION

REPORT ON TELEPHONES

Senator MILLEN:
Free Trade

– Owing to the somewhat extraordinary demands made by the state of public business upon my time in the early hours of this morning, I have not had an opportunity of medically examining my colleague.

page 7211

QUESTION

IMMIGRATION

Senator DOBSON:

– Will the VicePresident of the Executive Council state whether the Prime Minister is carrying out his immigration policy under which he said that the Commonwealth would find the immigrants if the States would find the land, and, if anything is being done, will he ask his colleague to make a special effort to get some retired soldiers and sailors from the Imperial forces?

Senator MILLEN:
Free Trade

– Probably my honorable friend willgive notice of the question for the next day of sitting.

page 7211

PRESS CABLE SERVICE : SELECT COMMITTEE

Order of the Day No. 1, Business of the House, “Press Cable Service: report of Select Committee to be brought up,” discharged.

Notice of Motion No. 1, Private Business, “ That so much of the Standing Orders be suspended as would prevent the representatives of the press making public a report of the evidence given before the Select Committee on Press Cable Service,” discharged.

page 7211

SUSPENSION OF SITTING

Senator MILLEN:
New South WalesVicePresident of the Executive Council · Free Trade

. -I am unfortunately in the position of having to ask the Senate to suspend the sitting for a little while, as there is no business available from the other House. I anticipate that almost at any moment some of the measures will be forwarded. It is impossible to fix a definite time to which we can adjourn, because that might be too soon or too late. If honorable senators will consent to follow the practice which hitherto has been adopted, it will, I think, meet the general convenience. I suggest, sir, that the sitting should be suspended until the bells are rung.

The PRESIDENT:

– I will now leave the chair until some business is available for the Senate, and the bells will be rung for five minutes prior to the resumption of the sitting.

Sitting suspended from 11.10 a.m. to 3.35p.m.

page 7211

PUBLIC SERVICE SUPERANNUATION FUND

Motion (by Senator E. J. Russell), by leave, agreed to -

That the papers relating to the deputation of Civil servants to the Minister of Home Affairs in reference to the establishment of a Superannuation Fund, be printed.

page 7212

CONCILIATION AND ARBITRATION (PARTS II. AND III.) BILL

Bill returned from the House of Representatives, with amendments.

Motions (by Senator Millen) agreed to-

That so much of the Standing Orders be suspended as would prevent the message being at once considered and all consequent action taken.

That the message be taken into consideration forthwith.

In Committee (Consideration of House of Representatives’ amendments) :

Senator MILLEN:
New South WalesVicePresident of the Executive Council · Free Trade

– The Committee will remember that some time ago Senator Needham introduced into the Senate a Bill having for its object the extension to officers or members of associations applying to be registered under the Commonwealth Conciliation and Arbitration Act, the same protection against unfair treatment on the part of employers which, under the principal Act, was secured to organizations already registered. That Bill passed this Chamber, and was sent to the House of Representatives, where the AttorneyGeneral had introduced a measure which provided for the same reform, but with certain other additions. Seeing that the two Bills were upon similar lines, the Attorney-General adopted Senator Needham’s Bill, adding to it, by way of amendment, that portion of his own measure which was not covered by it. So that we have here the measure which was originally submitted by Senator Needham, plus certain amendments relating to procedure which have been made at the instance of the Attorney-General. The main portion of the measure, however, is Senator Needham’s. Upon looking through these amendments, I find that it is very difficult to deal with them separately. I shall, therefore, limit my remarks to pointing out their effect collectively. Senator Needham sought to have passed into law two new clauses as additions to two sections of the principal Act. The two clauses which he proposed would have given protection to applicant associations. He proposed them as additions to the sections of the principal Act which extended protection to associations that were already registered. The Attorney-General thought it would be better to repeal those two sections in the principal Act, and to make this Bill cover both associations which are already registered and those applying to be registered. These are the principal amendments which have been made in the measure. Everything else, with one exception, is consequential upon them. .The main addition which has been made to the Bill is that contained in the amendment, which reads -

No proceeding for any contravention of this section shall be instituted without the leave of the President or the Registrar.

That is entirely new matter. It was inserted with the idea that, as this is a Conciliation Bill, the presiding officer should be empowered to see that, before legal action is taken, an opportunity is presented to the parties concerned of coming together in an amicable way. That is the sole purpose of the amendment. It is difficult to deal with these amendments separately, but if questions are asked concerning any of them I shall endeavour to explain them” to the best of my ability.

Senator Colonel NEILD (New South Wales) [3.46]. - We seem to occupy a rather strange position in reference to this measure. The Vice-President of the Executive Council has said that it is Senator Needham’s Bill. If that be so, I wish to know why it has been taken out of the hands of that honorable senator? If it be Senator Needham’s Bill, he should be handling it at this stage.

Senator Needham:

– It left my hands when the Senate passed it.

Senator Colonel NEILD:

– But the practice in all properly regulated Legislatures is for a Bill which has been introduced by a private member, and which has been returned to the originating Chamber, to be taken charge of by its author.

Senator Trenwith:

– Not -if the Government adopt it.

Senator Colonel NEILD:

– It is for Senator Needham to say whether he assents to the Government adopting it.

Senator Needham:

– The honorable senator has not given me a chance to say that.

Senator Colonel NEILD:

– The position is an abnormal one. A Bill introduced by a private member has been taken charge of willy nilly by the Vice-President of the Executive Council, who is proceeding to treat it as a Government measure.

Senator McColl:

– If Senator Needham does not worry, why should the honorable senator do so?

Senator Colonel NEILD:

– If there are honorable senators who do not care twopence about Parliamentary procedure, that is their funeral. But I take exception to the method that is being pursued by the Vice-President of the Executive Council in dealing with a private member’s Bill.

Senator Sir Robert Best:

– Surely it is time enough for the honorable senator to complain when Senator Needham objects to the procedure?

Senator Colonel NEILD:

– Of course, if Senator Needham agrees to it, there is an end to the matter. The Bill then becomes a Government measure.

Senator MILLEN (New South Wales - Vice-President of the Executive Council) (3.48]. - In what is being done, no attempt has been made to deprive Senator Needham of his association with this Bill. . But the measure is now an extremely complicated one, by reason of the numerous amendments which have been made in it. It incorporates the Bill which was introduced into another place by the AttorneyGeneral. I wish to make the fullest possible acknowledgment to Senator Needham, who introduced this measure, but, for the reason which I have stated, and because the amendments will necessitate some- consultation with the draftsman of the AttorneyGeneral’s Department, it seems desirable that it should be in the hands of a Minister.

Senator NEEDHAM:
Western Australia.

– When I learned from the Attorney-General that, on behalf of the Government, he had practically adopted the principles contained in the Bill which I was fortunate enough to pass through the Senate, and when I was informed that he intended to add to the measure ‘ one or two amendments relating to procedure, I was quite content to accept them. I realize that if a private senator introduces a Bill and it is transmitted by the Senate to the other House for its concurrence, it ceases to be a private measure. This Bill was sent down to the other House, where its principles were agreed to, and one or two procedure amendments made at the instance of the Government, thereby making it their measure for the time being. I think that the Vice-President of the Executive Council is quite in order in piloting it through the Senate at this stage.

Senator Trenwith:

– With the honorable senator’s assistance?

Senator NEEDHAM:

– I had already agreed that my honorable friend should take charge of the amendments.

House of Representatives’ amendments agreed to.

Resolutions reported, and report adopted.

page 7213

PUBLIC SERVICE BILL

The PRESIDENT announced the receipt of a message from the House of Representatives’ returning this_ Bill, with an intimation that the House of Representatives had not agreed to the amendment made by the Senate ; but, in place thereof, had made an amendment in the clause proposed to be omitted, in which it desired the concurrence of the Senate.

Motions (by Senator Millen) agreed to - That so much of the Standing Orders be suspended as would prevent the message being at once considered and all consequent action taken.

That the message be taken into consideration . forthwith.

In Committee (Consideration of House of Representatives’ message) : ‘

Clause 4 (Employment of telegraph messengers).

Senate’s Amendment. - Leave out this clause.

House of Representatives’ message. - Amendment not agreed to, but in place thereof the following amendment made in the clause. At the end of the clause add the following new subsection : - “ 6. Sub-sections 2 and 3 of this section shall apply only to telegraph messengers who attain the age of 18 years before first day of January, one thousand nine hundred and eleven.”

Senator MILLEN:
New South WalesVicePresident of the Executive Council · Free Trade

– The House of Representatives desiring to retain the clause, proposes an addition which would limit . its operation practically to eighteen months, that is to say, to the 1st January of the year after next. I move -

That the Senate does not insist upon its amendment, and agrees to the amendment made by the House of Representatives.

Senator Pearce:

– What reason is offered ?

Senator MILLEN:

– The Public Service Commissioner points out that, during the last two years, he had been able to absorb most of the boys who would otherwise have left the service at the age of eighteen years. He fears that in the next few years there will be some little difficulty in absorbing the boys, if they are required to leave at that age. He says that 153 of these boys will, during the next twelve months, reach the age of eighteen, and have, by examination, qualified to pass into other branches of the service. If this provision is not adopted, these lads will have to leave the service. The Public Service Commissioner anticipates that, with the extension of age proposed, it will be possible to find employment for about 120, and that only about thirty will be required to leave. When considering the clause before, honorable senators expressed the opinion that before long the Public Service Act would require overhauling. There is something in. the contention. This provision would act as a stop-gap and would provide for these lads in the meantime until Parliament can bring the whole of the Act under review. It is hoped, also, that the experience of the provision will enable us to discover how far the expectation of the Public Service Commissioner as to its operation will be realized, and if it is found that, by extending the age to twenty years, these lads can be absorbed by other branches of the service, the provision can be made permanent.

Question’ resolved in. the affirmative.

Resolution reported, and report adopted.

page 7214

BILLS OF EXCHANGE BILL

Bill returned from the House of Representatives, with amendments.

Motions (by Senator Sir Robert Best) agreed to -

That so much of the Standing Orders be suspended as would prevent the message being at once considered and all consequent action taken.

That the message be taken into consideration forthwith.

In Committee - (Consideration of House of Representatives’ amendments) :

Clause 25 - (4.) For the purposes of sub-section (1) of this section “Duty stamp” includes a duty stamp, required by the law of the State (if any) in which the instrument is subject to stamp duty, to be impressed on a bill, but a paper shall not be deemed to be stamped by reason that it has impressed on it a duty stamp of any other State.

House of Representatives’ Amendment.- Omit “ (if any) in which the instrument is subject to stamp duty to be impressed on a bill, but a paper shall not be deemed to be stamped by reason that it has impressed’ on it a duty stamp of any other State,” and insert in lieu thereof “in which the instrument is issued, to be impressed on a bill.”

Senator PEARCE:
Western Australia

– Before we are asked to consider the amendments proposed by the House of Representatives, 1 hope that copies of the Bill will be circulated so that honorable senators will be able to follow the amendments proposed.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.13]. - I propose to fully explain the amendments which have been made in another place. I give honorable senators the assurance that, for the most part, they are drafting or consequential amendments, and that none of them are of a serious character. The Bill, as originally drafted, con tained a clause relating to the collection of State stamp duty in the case of bills of exchange or promissory notes. The clauseswas amended- in the Senate, and the amendment now proposed by the House of Representatives is consequential upon our amendment of the original clause. It ispurely a drafting amendment. I move -

That the amendment be agreed to.

Senator E. J. RUSSELL (Victoria^ [4.15]. - I wish to ask a question which may save time later in dealing with this Bill. When we were considering it sometime ago, there was a discussion as to whether certain stamp duties and charges; should be reduce’d. Shortly afterwards, action was taken in the State of New South. Wales to reduce certain stamp duties. I should like to know whether any amendment has been made in another place tomake the stamp duties on bills of exchange and promissory notes uniform throughout the Commonwealth ?

Senator Sir Robert Best:

– We do not purpose, by this Bill, to interfere with? State stamp duties at -all.

Motion agreed to.

Clause 56 - “7. A protest must contain a copy of thebill and must be signed by the notary making it and must specify -

House of Representatives’ Amendment. - After t! notary,” line 2, insert “ or person.”

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [4.15].. - Under clause 100, a bill may be protested by a householder, as well as by a notary. The amendment made by theHouse of Representatives is intended tomake clause 56 consistent with clause 100.. I therefore move -

That the amendment be agreed to.

Motion agreed to.

Clause 79 -

  1. Where a cheque is not presented for payment until twelve months after it becomes payable, a banker shall not be responsible or incur any liability by reason of refusing the payment thereof.

House of Representatives’ Amendment. - Omit sub-clause 2.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.16]. - Clause 79 was inserted at the instanceof Senator Walker. On the matter being, inquired into, it was discovered that subclause 2 is in the wrong place, and is calculated to interfere with the interpretation of clause 79, which refers to the presenta- lion of cheques for payment. The House of Representatives have therefore omitted the sub-clause, and inserted a new clause carrying out the same idea in different language. I move -

That the amendment be agreed to.

Motion agreed to.

House of Representatives’ amendment, inserting new clause 79A, agreed to.

Clause 81 -

Where -

  1. a cheque, drawn on a banker by a customer, has been drawn by the customer with negligence, and
  2. the negligence of the customer has afforded facility for the fraudulent alteration of the amount of the cheque, and
  3. the cheque has been fraudulently altered so as to increase its amount, and
  4. the cheque as so altered has, in good faith and without negligence, been paid by the banker, the banker may recover from the drawer in a court of competent jurisdiction any amount expressed in the cheque over and above the original sum so drawn.

House of Representatives’ Amendment. - Omit the clause.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.19]. - It will be remembered that, by clause 81, the Senate sought to regulate the relationship between banker and customer so far as relates to the filling in of cheques. An endeavour was made to carry out a decision given by the High Court of Australia, and subsequently by the Privy Council, in the case of Marshall v. The Colonial Bank of Australasia. The AttorneyGeneral, on inquiring into the subject, saw that the clause inserted by the Senate did not give the full relief that was intended, and that it was calculated to cause even more trouble and complexity. Therefore, the Attorney-General moved the substitution of a new clause in the following terms -

In the absence of any agreement between the customer and the banker to the contrary the customer owes to the banker a duty to exercise reasonable care in the filling up or drawing of each cheque drawn by him upon the banker, not to afford facility for any fraudulent alteration by which the amount of the cheque may be increased.

That provision would have cast upon the customer the duty of exercising reasonable care in the filling up of his cheques. The other Chamber, however, declined to accept the proposed new clause, and have also struck out clause 81, preferring to leave the law as it now stands. It may be as well to remind honorable senators that in the case of Marshall v. the Colonial Bank of Australasia it was held by the Privy Council that the mere fact that a cheque is drawn with spaces which may be utilized for the purpose of fraudulent alteration is not, in itself, any violation of the duty of a customer to his banker. That is the law as it stands. The other place has refused to alter that law so as to cast a duty upon the customer. I move -

That the amendment be agreed to.

Senator WALKER:
New South Wales

– It is quite true that the High Court and the Privy Council did give the decision mentioned by Senator Best; but naturally, bankers think that that judgment was absolutely inequitable. Sometimes a man in his ignorance draws a cheque in such a way as to leave a space in front of the figures, so that a person inclined towards fraud is able to insert other figures. In the particular case referred to, a trustee robbed the estate on whose funds the cheque was drawn. Consequently, the bank was made responsible for the roguery of the trustee. No bank in the world can compel trustees to prevent the negligence of co-trustees. The bankers simply want the law to be made equitable. Surely we have a right to do what is fair as between banker and constituent? The law as it stands offers a premium to roguery. Why should bankers be made responsible for the scoundrelism of other persons? I speak on this matter as a particular banker, and am very sorry the other House has not accepted the amendment made by the Senate. This was one of the clauses in the Bill that the bankers of Australia thought most important for the safety of banks and ofhonest men.

Senator ST LEDGER:
Queensland

– We have the assurance of the Minister that an amendment, made after careful consideration by the AttorneyGeneral, has not been agreed to by the other place, which has preferred to leave the law to stand as defined by the Privy Council. I think we ought to uphold that position. I shall, therefore, support Senator Best’s motion.

Senator WALKER:
New South Wales

– The bankers of this country simply want the law to be altered, so as to make matters absolutely fair as between them and their constituents. They cannot be responsible for the carelessness or roguery of other persons. “ Fair play is bonnie play ‘ ‘ ; and I think we ought to stick to our own proposal.

Question - That the amendment be agreed to - put. The Committee divided.

AYES: 18

NOES: 6

Majority … … 12

AYES

NOES

Question so resolved in the affirmative.

Motion agreed to.

Clause 98 (Computation of time).

House of Representatives’ Amendment. - Omit sub-clause 5, and insert in lieu thereof new subclause.

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [4.33]. - This amendment is merely a re-draft of sub-clause 5 of clause 98 as it left the Senate. As re-drafted, it is strictly a copy of the Victorian Act, which gives effect to the intention of this Committee. I therefore move -

That the amendment be agreed to.

Motion agreed to.

House of Representatives’ amendment in clause 100 agreed to.

First Schedule.

House of Representatives’ Amendment. - Omit the schedule and insert new schedule in lieu thereof.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.34]. The Bill, as drafted, did not deal with bank half-holidays, but left the provisions of the State Acts applicable. An amendment was framed in the Senate to make provision in this respect. This rendered it desirable to specifically exclude a number of additional State Acts. The schedule was therefore recast in a more convenient form. The Acts added, in whole or in part, are the State Bank Holidays Acts relating to bills of exchange and cheques; which are to be superseded by the provisions in clause 98. I move -

That the amendment be agreed to.

Motion agreed to.

Resolutions reported, and report adopted.

page 7216

OFFICERS’ COMPENSATION BILL

Bill received from House of Representatives.

Motions (by Senator Sir Robert Best) agreed to -

That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay.

That this Bill be now read a first time.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.38]. - I move -

That this Bill be now read a second time.

Honorable senators are probably aware that its object is to provide for the payment to certain officers of the Commonwealth of compensation on their retirement, or, upon their decease, of payments to their relatives. Last year, I introduced a somewhat similar Bill, which provided for the payment of compensation to certain relatives of officers who had either retired from the Commonwealth Public Service, or had died in the discharge of their duty. I think it is advisable that on the present occasion I should follow the course which I then adopted, and content myself with moving the second reading of the measure. If honorable senators desire any information in regard to the cases which are set out in the Bill, I shall be only too glad to supply it in Committee.

Senator Colonel NEILD (New South Wales) [4.39]. - I was rather caught napping the other day when I sought to move that an instruction be given to a Committee of the Senate in reference to another Bill. Upon that occasion, you, sir, very properly pointed out that such a motion could not be submitted without notice. But I think that I had also overlooked the fact that our Standing Orders had been suspended.

Senator Sir Robert Best:

– That is another matter altogether.

Senator Colonel NEILD:

– It raises a difficulty in connexion with this measure. I wish to move that the House of Representatives be requested to include another name and another amount in this Bill, but I question whether I can do so without an instruction being given to the Committee. If I cannot move that such an instruction be given, it will be recognised that this Chamber has been placed in a most unfortunate position in that, whilst we have given the Government authority to do all that they want, we have absolutely stripped ourselves of our right under the

Standing Orders to do the most simple things. May I ask your ruling, sir, as to whether, in Committee, I shall be at liberty to move a request without an instruction be given to the Committee in reference to this matter?

The PRESIDENT:

– I would point out to the honorable senator that the question of what action should be taken in Committee will be decided by the Chairman of Committees. It would be very inconvenient for me to anticipate his ruling in that connexion, though I have a very decided opinion as to what can and what cannot be done. But that will be a matter for the Chairman of Committees to determine.

Senator Colonel NEILD:

– I wish to bring under the notice of the Senate the desirableness of extending some consideration to the relatives of an old public servant who passed away only a few hours ago. I refer to the chef of the Parliamentary Refreshment Room, v. ho, I understand, was for years prior to the establishment of the Commonwealth, a servant of the State of Victoria. He has been a Federal and State officer for some twelve years. The matter has occupied the attention of the Joint House Committee to-day, and that body has made a recommendation and an application to the Government. It has received a very favorable reply, but I do not know whether the Minister of Trade and Customs is in a position to give an assurance to this Chamber similar to that which, I believe, has been given in another place. If he can do so, I am convinced that he will be very glad.

The PRESIDENT:

– I would point out to the honorable senator that the proper time for him to obtain the information which he desires will be on the motion for the adjournment.

Senator PEARCE:
Western Australia

– Upon this Bill I merely desire to say that I think some definite rule should be laid down in reference to these allowances. At this stage of the session, we have no possible chance of inquiring into the merits of the cases which are enumerated in the Bill, though, as a matter of fact, two of them were recommended by me whilst I filled the position of Minister of Defence. My experience in that office has taught me that in cases of this kind the Minister of Defence is practically in the hands of his Department, and. that whether an officer’s relatives secure compensation upon his decease depends to a great extent upon what they know of the way in which to get the ear of the Department. The cases of poor unfortunate persons who cannot get the ear of the Department will never be heard of. In instances in which the relatives can make out a good claim for the payment of compensation, the Minister is impelled to propose the granting of a certain sum. But there may be other cases, equally meritorious, of which he never hears. In connexion with military officers, a sort of rule has been laid down. I believe that the amount which it is proposed to grant to the widow of Sergeant-Major Fraser represents the leave to which he was entitled by reason of his years of service. But it does seem to me that the present haphazard kind of generosity that is granted in cases of this description is very inequitable. 1 would recommend the Government, during the recess, to consider whether a definite rule cannot be adopted

Senator WALKER:
New South Wales

.- - I desire to know whether there is any principle on which the amounts in these cases were fixed? I notice, for instance, that the widow of a former commandant of the Naval Forces in Queensland is to receive £600. Is the compensation fixed at that amount because of lengthy services?

Senator Sir Robert Best:

– That is in accordance with the military regulation.

Senator WALKER:

– I am glad that some principle is observed.

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [4.46]. - I admit that there is a good deal of force in the suggestion that there should be some principle established in regard to these cases. But I remind Senator Walker that a very large question is involved. The cases which are now recommended have been under the notice of various Ministers, and will, I think, commend themselves to the Senate. The question of making more ample provision, by way of insurance or otherwise, to meet cases of the kind is certainly entitled to consideration, but no hard and fast rules can be laid down. The only principle which can be followed is that cases which come under the notice of the permanent head of a Department arebrought under the attention of the Minister, who in turn brings them before the Cabinet, which is made acquainted with the character of each case. If there are cases of a similar kind in the Department a degree of uniformity, so far as principle is concerned, is established in that way. Probably the

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause i agreed to.

Clause 2 (Payments to be made).

Senator WALKER:
New South Wales

– I should like to know why a man on probation is to get such a large sum as ^342. I have never heard before of a man on probation being treated in that way. T refer to the vote for Mr. W. N. B. Cooke, formerly a lineman on probation in the Postmaster-General’s Department in New South Wales.

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[4.49]- - :My information is that Mr. Cooke was crushed by a falling telegraph . pole whilst in the execution of his duty. The amount recommended for compensation is equal to three years’ pay, and is the maximum amount recoverable under the Employers’ Liability Act. Mr. Cooke is only 28 years Of age, and is incapacitated for life. In a previous case - that of MacDonnell - an amount of ^250 was charged as transferred expenditure, being in the nature of compensation for injuries sustained.

Senator Lynch:

– Can the Minister- furnish any information regarding the vote of £100 for the widow of Mr. J. J. Crellin, formerly a lineman in the PostmasterGeneral’s Department in New South Wales?

Senator Sir ROBERT BEST:

– I am informed that Lineman Crellin was killed on the 10th September, 1909, through falling from a telegraph pole in Harbour Street, while in the execution of his duty. There is nothing definite to account for the accident, and the only ‘ conclusion appears to be that Mr. Crellin must have overbalanced whilst on the pole. He. joined the service on the 8th March, 1901, as a temporary lineman, .and was appointed to the permanent staff on the 15th January, 1909.

Senator Lynch:

– There is a gross inequality between that case and Cooke’s case.

Senator Colonel NEILD (New South Wales) [4.50]. - I propose to move a request to the House of Representatives for a grant to the widow of Mr. G. A. Doutty late postmaster at Homebush, in New South Wales.

The CHAIRMAN:

– I must rule the request out of order. The honorable senator lias not had the opportunity of getting an

Senator LYNCH:
Western Australia

– 1 desire to know, sir, whether there is any means of rectifying the apparent anomaly between Cooke’s case and Crellin’s?

Senator Sir Robert Best:

– The Minister investigates each case.

Senator LYNCH:

– One man was on probation, but the other was in the service for seven years.

The CHAIRMAN:

– The honorablesenator cannot submit a request to increase an amount, but he may propose a request, to reduce or omit an amount.

Senator LYNCH:

– Can we not request: an increase in the amount of an item?

The CHAIRMAN:

– No.

Senator LYNCH:

– The two items I’ refer to disclose the unfairness of the present system in assessing the compensation* to be paid. Apparently, the amounts are not based on the responsibilities of the unfortunate persons who lost their lives. In one case nearly three times as much compensation is proposed as in the other.

Senator Sir Robert Best:

– There is a vast difference between the two cases.

Senator LYNCH:

– Both were killed in> the execution of their duty, but one wasonly on probation.

Senator Pearce:

Mr. Cooke was injured, not killed.

Senator LYNCH:

– The other man was. killed, but his dependents are to get less, than Mr. Cooke is to receive.

Senator Sir ROBERT BEST (Victoria. - Minister of Trade and Customs) [4.52]. - Senator Lynch must recognise that thequestion of contributory negligence comesin. In one case, Mr. Cooke is to get probably what he is entitled to receive under the Employers’ Liability Act, and in theother case, if the question of contributory negligence were raised, Mr. Crellin’s. widow would be entitled to nothing.

Senator Lynch:

– That is assuming that there was negligence, but his dependents; are suffering considerably compared withMr. Cooke.

Senator Turley:

– The Departmental” report does not say anything about contributory negligence.

Senator Lynch:

– It is a pure surmise. ‘

Senator Sir ROBERT BEST:

– That is not so.

Senator Colonel NEILD (New South Wales) [4.53]. - I suggest that there is possibly an explanation on the face of the clause. In the one case, Mr. Cooke has been injured, but he has to be supported, and if he is a married man, as I conclude he is, then a wife has also to be supported. But in the other case, the unfortunate Mr. Crellin was killed, and therefore only his widow has to be supported. I suggest that as a possible explanation. I do not say that it is a satisfactory one. But that is a point which might reasonably be taken into consideration. What the unfortunate widow is going to do with a solitary£100, I do not know.

Senator Turley:

– And it is not in conformity with the Compensation Act of any State.

Senator Colonel NEILD:

– No. This schedule shows, I think, the extreme undesirability of haphazard legislation of this kind. Some one is picked out for a Parliamentary grant, and some one is refused.

Senator St Ledger:

– It is a most fruitful source of corruption.

Senator Colonel NEILD:

– It might be. I wanted to bring a matter before the Committee. I knew that I could not submit a request without an instruction, and possibly not then. Mr. Doutty, a postmaster in a railway suburb of Sydney lost his life through being required to take up his residence and duties in a brand new building which had not dried. Owing to the bricks and plaster being damp, he contracted a cold on the lungs, which resulted in his death. There is some difficulty, some refusal even, to acknowledge the case. Yet we are asked to vote amounts positively haphazard. I do not know that any one of the cases provided for in the clause is much more deserving than that case. Here we are asked to vote these amounts without any possibility of inquiry, without any means of knowing whether justice or injustice is being done, whether a favour is being shown or the opposite. Heads of Departments have practically, so we hear, the duty of recommending these amounts. We know that it is quite possible for such persons to take favorable views and unfavorable views, rightly and wrongly. Sometimes unfavorable views are taken wrongly, and sometimes favorable views are taken wrongly. Yet on no better authority practically thantheipsedirit of a high official, grants are recommended in some cases, and refused in others. This clause is the best possible proof that it is desirable that there should be established for the employes of the Commonwealth, indeed for all employes throughout Australia, a system of insurance which would make proper provision in the case of such accidents as those which are represented by the vote of£342, the vote of £100, and possibly some other votes. Then, again, we have a list of military allowances. Some sergeants, and so on, are refused compensation, and others get it. The whole thing is admirably designed to lead to the worst forms of favoritism, and practically corruption. We should do a harm to all of these folk if we refuse to vote the amounts. I suppose that the Bill will have to go, and that it will be one of the many measures which are thrust through, without the smallest need, at the very tail end of the session. All these cases might have been brought before us three or four, if not six, months ago.

Clause agreed to.

Title agreed to.

Bill reported without amendment; report adopted.

Bill read a third time.

page 7219

QUESTION

S.S. WARATAH

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[5.4]. - I desire to make an announcement to the Senate, and I make it with very great regret. The Melbourne agents, Sanderson and Company, report that the s.s. Sabine has returned to port. Her search has, unfortunately, proved fruitless, and no sign of the Waratah was observed. As to the stability of the vessel when leaving port, the attached report, recently received from the Government of New South Wales, shows that there were no apparent grounds for fear on that account. Some question was raised as to her stability, and we have been making inquiries from the various ports at which she called. The report from New South Wales is as follows -

This vessel (s.s. Waratah) was lying at the Central Wharf, in Sydney Harbor, for some ten days discharging inward cargo and loading outward cargo for South Africa and London, during which time she was seen by the various inspectors of this Department almost daily. These officers report that there was nothing in the vessel’s trim to show that she was in any way unstable. They state that she left the Port on the 26th June, with a small cargo on board, ingood ballast trim, and in perfect sen-going order, and that she had no cargo or bunker coal on an exposed deck.

Senator Needham:

– Does the honorable senator now abandon all hope of discovering the Waratah, or will any further effort be made?

Senator Sir ROBERT BEST:

– The search, systematically made, has evidently proved fruitless. It is difficult to say what has happened. Of course, ships will continue to go to and fro on the track presumably followed by the Waratah.

Sitting suspended from 5.6 to 8.10 p.m.

page 7220

AUSTRALIAN INDUSTRIES PRESERVATION BILL

Bill returned from the House of Representatives with amendments.

Motions (by Senator Sir Robert Best) agreed to -

That so much of the Standing Orders be suspended as would prevent the message being at once considered and all consequent action taken.

That the message be taken into consideration forthwith.

In Committee (Consideration of House of Representatives’ amendments) :

Clause 5 -

After section seven of the Principal Act the following sections are inserted : - “ 7A. - (1.) Any person who, in relation to trade or commerce with other countries or among the States either as principal or agent in respect of dealings in any goods or services gives, offers, or promises to any other person any rebate, refund, discount,’ concession, or reward, for the reason or upon the condition, express or implied, that the latter person -

deals, or has dealt, or will deal, or intends to deal, exclusively with any person either in relation to any particular goods or services or generally ; or

deals, or has dealt, or will deal, or intends to deal, exclusively with members of a commercial trust, either in relation to any particular goods or services or generally ; or

does not deal, or has not dealt, or will not deal, or does not intend to deal, with certain persons either in relation to any particular goods or services or generally; or

is, or becomes a member of a commercial trust, is guilty of an offence.

Penalty : Five hundred pounds.

Every contract made or entered into in contravention of this section shall be absolutely illegal and void.

House of Representatives’ Amendment. - At end of section 7A add the following new subsection : - “ (3) It shall be a defence to a prosecution under this section, and an answer to an allegation that a contract was made or entered into in contravention of this section, if the party alleged to have contravened this section proves that the matter or thing alleged to have been done in contravention of this section was not to the detriment of the public and did not constitute competition which was unfair in the circumstances.”

Senator Sir ROBERT BEST:
Minister of Trade and Customs · Victoria · Protectionist

[8.13].- Honorable senators are familiar with the provisions of proposed new section 7A, and I merely wish to point out that in another place it was strongly urged that those provisions are calculated to interfere with many meritorious business transactions. Hence the amendment which is now submitted for our consideration. The chief point to be noted in connexion with the amendment is that it does not throw the onus of proof upon the prosecution. In this Chamber I had to resist a proposal to impose that onus upon the prosecution, and a similar proposal had to be resisted elsewhere. The proposed new sub-section provides that where a prosecution takes place, if the defendant can prove that the transaction in which he was engaged was an ordinary business transaction which was in no way detrimental to the public, and which in no way constituted unfair competition in the circumstances, it should be regarded as a legitimate defence.

Senator Findley:

– Why has the onus of responsibility been shifted?

Senator Sir ROBERT BEST:

– Under the amendment the onus of responsibility will not lie on the prosecution. It will be cast upon the defendant.

Senator Needham:

– It was always upon the defendant.

Senator Sir ROBERT BEST:

– No.I therefore move -

That the amendment be agreed to.

Senator PEARCE:
Western Australia

– The proposed new sub-section seems to me to give away the whole principle of the Bill.

Senator Trenwith:

– The object of the Bill is to prevent unfair competition, and under the amendment the defendant in any prosecution will have to prove that he is not engaged in such competition.

Senator PEARCE:

– The Bill aims at something more than preventing unfair competition. Where a complete monopoly exists we cannot say that there is unfair competition, because there is no competition at all.

Senator Trenwith:

– But the existence of a monopoly is detrimental to the public.

Senator PEARCE:

– One portion of the Bill deals with any person who monopolizes or attempts to monopolize trade to the detriment of any Australian industry. The proposed new sub-section ought not to be accepted by the Committee without serious consideration. It seems to me that it is an entire negation of the whole principle of the Bill.

Senator Sir Robert Best:

– It applies only to proposed section 7A, which is clause 5 of the Bill. It has nothing to do with the principal Act.

Senator PEARCE:

– It has to be borne in mind that the proposed new sections of the Bill will follow section 10 of the principal Act. Section 6a, which immediately precedes proposed section 7A, says -

After section p of the Principal Act the following section is inserted : - “ 10a - (1.) Any person who does any act or thing in disobedience of an injunction granted under this part of this Act shall be guilty of an offence

Penalty : Five hundred pounds for each day during which the offences continue.

This section shall not be deemed to derogate from the power of the High Court, apart from this section to enforce obedience to the injunction.”

Senator Sir Robert Best:

– The honorable senator does not grasp the position.

Senator PEARCE:

– Then will the Minister of Trade and Customs tell me in what part- of the principal Act the proposed new section is to be inserted?

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [8.22]. - I would point out to my honorable friend (hat proposed section 7 a deals with unfair concessions, and provides that it shall be an offence for any person to give, offer, or promise, to any other person any rebate or refund, on the condition, express or implied, that the latter person shall deal exclusively with him, either in relation to any particular goods or services, or generally. At the end of that proposed section, which is clause 5 of the Bill, it is intended to insert the proposed new sub-section which we are now considering.

Senator PEARCE:
Western Australia

– It is rather difficult to follow these amendments, but I have now ascertained in what part of the principal Act it is desired to insert the proposed new sub-section. Section 7 of the principal Act reads -

  1. Any person who monopolizes, or attempts to monopolize or conspires or combines with any other person to monopolize any part of the trade or commerce with other countries or with the States, or attempts to control to the detriment of the public, the supply or price of any service, merchandise or commodity, is guilty of an offence.

Then come in the two provisions which the honorable senator read, and now :t is proposed to add a sub-section, referring to section 7 of the Act.

Senator Sir Robert Best:

– It refers to proposed section 7 a, not to section 7 of the Act, as I have explained.

Senator PEARCE:

– The honorable senator has been confusing me by referring to section 7, instead of to proposed section 7A.

Senator Sir Robert Best:

– I thought that the honorable senator was speaking under a misapprehension.

Senator PEARCE:

– I do not know that the proposed sub-section, if inserted, would improve proposed section 7 a. Here we have the question of unfair concessions for the purpose of exclusive dealing. It seems to me that the object of the sub-section is to save the face of existing trusts. It is really a provision to nullify the Act so far as any existing trust or monopoly is concerned. Any existing agreement for exclusive dealing will be saved by the provision, unless the man can prove two things - first, that it is not detrimental’ to the public, which is a very difficult thing to prove-

Senator Trenwith:

– Except he can prove two things - first, that it is not detrimental to the public; and, second, that it is not a monopoly.

Senator PEARCE:

– Before the AttorneyGeneral can undertake a prosecution he must be satisfied in his own mind that he can prove that the agreement is not detrimental to the general public.

Senator Sir Robert Best:

– No.

Senator PEARCE:

– The success of his suit will depend upon that. In such circumstances it is very improbable that he will prosecute any existing combine which has a contract for exclusive dealing. Take, for instance, the Press Cable Association, which has a contract for exclusive dealing. There are senses in which the association can say that the contract is not to the detriment of the public, but there are senses in which it is detrimental to the public. The “Court will; I suppose, decide according to the weight of evidence. I must confess that I am very suspicious of this sub-section, as it seems to be framed for the purpose of saving existing trusts and existing agreements. We all know that there has been a- preliminary skirmish. The Attorney-General’s Department is right up against the responsibility of having to prosecute existing trusts. They are very powerful bodies, both politically and otherwise. I wish that I was a lawyer so that I could see the full effect of the provision, but to my lay mind it looks suspicious. I do not feel inclined to vote for it unless the Minister can give further information.

Senator TRENWITH:
Victoria

. -There appears to me to be an element of fairness in the proposed new subsection which commends itself to my judgment. Contracts for exclusive dealing were often, with our knowledge, entered into for purposes prejudicial to the well-being of the community, and, therefore, we had to legislate that such contracts were an offence. But it can easily be conceived that there are contracts which may be no offence at all, and no prejudice to the public, and, therefore, under the existing law the Attorney - General has power to prosecute, and to punish if he simply proves a contract for exclusive dealing, even though it is not prejudicial. This proposed sub-section, was, I take it, adopted in another place in order to protect such contracts from punishment, but in order that the validity, the. effectiveness, and the rapid motion of our existing law shall not be retarded, the onus of proof is thrown upon the defendant. The AttorneyGeneral has only to prove that there is such a contract, and punishment will follow, unless the defendant can prove to the satisfaction of the Court that his contract is not prejudicial to the well-being of others.

Senator Sir Robert Best:

– Not only that, but also that it does not constitute competition which is unfair.

Senator TRENWITH:

– Of -course if it was unfair competition, it would be prejudicial. There might be such a contract to which there could be no objection, yet under the existing law punishment must follow if the fact is proven. This appears to be a safeguard against the harsh and unwise action of the law- which generally is beneficent in its character, and tends to check a great evil. To me as a layman, it seems to provide a safety valve against unnecessary oppressiveness in connexion with our law.

Senator Lynch:

– A safety valve which very likely is loaded.”

Senator TRENWITH:

– It seems to me to be utterly harmless, and capable of preventing hardship and injustice under our law, which is necessarily rigid and strict, which must be enforced in a great many instances before the well-being of the community can be protected, but which might, under existing conditions, be enforced with no benefit to the community, and extreme hardship to the individual.

Senator LYNCH:
Western Australia

– It may seem rash for a layman to venture to express an opinion, but I think that the proposed new section as it stands - that is, without the amendment of the other House - will not make any person liable to a penalty under the Act without a trial. The power df originating a prosecution is vested in the Attorney-General. When he has reason to believe- that any person is dealing exclusively with any person or corporation, he will appeal to a Court. The defendant will have full power to show that he is not dealing exclusively with the other person or corporation. In that case, the Court will necessarily be obliged to look upon him as innocent.

Senator Trenwith:

– But suppose that he is dealing exclusively with no injury to the public.

Senator LYNCH:

– I cannot imagine an exclusive dealing which is not detrimental to the public.

Senator Pearce:

– It is not the dealing, but having a contract to deal exclusively with the public, which is the offence.

Senator LYNCH:

– I can understand that a person may have a contract to deal exclusively with another person, and that at the same time it may not be of any harm because the latter may be in a position to take all the goods which the former can produce. This proposed sub-section if adopted will enable a person who is charged with exclusive dealing to call witnesses of his own. Very naturally he will feel inclined to call those who will vindicate him. But will there be an opportunity for calling rebutting evidence?

Senator Sir Robert Best:

– He will have to prove to the Judge that what he had been doing was not exclusive dealing, and was not unfair competition.

Senator LYNCH:

– Will there be a chance of rebutting his evidence?

Senator Sir Robert Best:

– Good gracious !

Senator LYNCH:

– I hope that there will be. Why were the qualifying words “in the circumstances” put in? They will leave a lot of play to a Judge. He may take into his consideration a number of surrounding circumstances, and if he is biased in any direction, consciously . or otherwise, he may say, “ In the circumstances, this was unfair competition.”

Senator Sir Robert Best:

– A Judge biased ?

Senator LYNCH:

– Yes, consciously or otherwise.

Senator Sir Robert Best:

– He should not be there if he is biased.

Senator LYNCH:

– That is true; but we all know that those who are charged with the administration of the law, have their own prepossessions, and cling to them sometimes, whether consciously or otherwise. In a case of that description, the Judge will be in a position to say, “In the circumstances, this is .not exclusive dealing, and, therefore, I find that, the defendant is not guilty.” I think that the words “ in the circumstances,” if retained, will leave a wide margin to any person who may he disposed to look loosely upon a transaction of that kind.

Senator Sir Robert Best:

– But he must judge it “ in the circumstances.”

Senator LYNCH:

– I cannot imagine unfair competition to be justifiable on any grounds.

Senator Sir Robert Best:

– That is what the defendant will have to prove.

Senator LYNCH:

– If competition is unfair, it cannot be justified.

Senator Sir Robert Best:

– He will not succeed, then.

Senator LYNCH:

– Why are the qualifying words “ in the circumstances “ used? The Act should be an instrument to put down unfair competition, whenever it is found.

Senator Sir Robert Best:

– That is one object.

Senator LYNCH:

– I think that the words “in the circumstances” are fatal; and I do not feel inclined to support the amendment.

Senator TRENWITH:
Victoria

– There has just occurred to me a very simple illustration which may commend itself to Senator Lynch and others. For some years I earned my livelihood by making boots. Now let me put a case which might very conceivably arise. Let us suppose that a man came to me and asked me to fit him with a pair of boots. Let us assume that I did so, and that the goods satisfied him. When I wished to charge him 30s. for the boots he might reply, “ But I never pay more than 20s.” I might then remark, “ But I have ex perienced great difficulty in fitting you. I have had to purchase two new lasts, and therefore I must charge you 30s.” To that the man might answer, “ I cannot afford to give you more than 20s.,” and thereupon I might say, “ Well, if you will undertake to give me your custom in the future, so as to recoup me for the expenditure which I have incurred, I will let you have the boots for 20s.” In that case an agreement would be entered into which nobody could urge was prejudicial to the public weal. In hundreds of cases concessions may be made and exclusive dealing may exist without the transaction being in any sense detrimental to the public.

Senator FINDLEY:
Victoria

.- Do I understand the Minister of Trade and Customs to say that this amendment is intended to suppress unfair competition?

Senator Trenwith:

-No. The Bill aims at that.

Senator FINDLEY:

– I am told that the Bill aims at suppressing unfair competition. But I say that competition succeeds only by being unfair. The competitive system itself succeeds only by a process of commercial cannibalism. That b indisputable. It is said that for mamyears we had a system of cut-throat competition amongst the shipping companies on the Australian coast. But those companies grew tired of that competition, and it is alleged that they have now formed themselves into a shipping ring or combine. So that on the one hand we are told that this is a measure which is designed to suppress unfair competition, whilst on the other we are assured that it is intended to suppress monopolies. Whether the operations of the shipping combine are to the injury of the community, I cannot say. But I understand that the Crown Solicitor is now inquiring into the existence of acombination in which it is said that the shipping companies and the Coal Vend ar-. largely interested. Indeed, it is urged that they are composed of the same persons. So that this Bill seems somewhat paradoxical.

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [8.45]. - I can quite understand Senator Pearce being at a considerable disadvantage, because, unless one has the Bill before him together with the amendments to it. and; also the principal Act, he is certainly liable to arrive at wrong conclusions. I can quite understand why the honorable senator was under the impression that the effect of this proposed new sub-section would be to water down some of the provisions of the principal Act. But it does nothing of the kind. The object of that Act is to prevent operations in restraint of trade. Amongst other things it says -

  1. 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 tradeor commerce with other countries, or

    1. with intent to restrain trade or commerce to the detriment of the public ; or
    2. with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers and consumers - is guilty of an offence.

It then goes on to make provision against restraint of trade so far as corporations are concerned, and against combinations or monopolies which are injurious to the public. These things are dealt with in section 7 of the principal Act. Now it is proposed that in section 7 a a new subsection shall be inserted and section 7a stands by itself, and provides for a different offence altogether.

Senator Pearce:

– It deals with rebates, which are the sheet-anchor of all these trusts.

Senator Sir ROBERT BEST:

– It deals only with the matters which are set forth in it. It does not deal with all the main provisions of the Act. It does not affect those provisions which relate to offences in regard to restraint of trade, or to attempt to injure industry or to create monopolies which are injurious to the public. It makes provision for an entirely new offence where rebates, refunds, concessions, or rewards are granted upon the condition, express or implied, of exclusive dealing, and this amendment provides that if it can be proved on a prosecution that the transaction is not detrimental to the public, or unfair in the circumstances, that proof shall be deemed a legal defence. The Court has to satisfy itself as to these two important elements. Senator Lynch has taken exception to the words “ unfair in the circumstances.” But I would point out that those words are used throughout the principal Act. For instance, section 6 of that Act reads -

For the purposes of the last two preceding sections, unfair competition means competition which is unfair in the circumstances.

Those are the words which are used in the amendment under consideration for very obvious reasons, because we have only this special case before us. It has been demonstrated that there are many contracts of a completely meritorious character. For instance, an arrangement exists between shippers and certain shipping companies here for the shipment of butter. The shipowners are tied down to certain dates and rates, and the shippers agree to ship by particular lines. That arrangement has been made by the State itself on behalf of the shippers.

Senator Findley:

– It is a free contract.

Senator Sir ROBERT BEST:

– It is not. It is a contract of the kind to which special attention is drawn, and which might be affected by a provision such as that under consideration.

Senator Findley:

– A State Government is in a much better position than is any private citizen.

Senator Sir ROBERT BEST:

– That is the point which I am urging. The Government of Victoria have entered into this contract, and the opinion has been expressed by lawyers that that legitimate and meritorious contract might be affected by a provision of this kind.

Senator Pearce:

– Was that the reason why the amendment was framed?

Senator Sir ROBERT BEST:

– It was one of the reasons. That contract was never intended to be unfair, because, not only is it not detrimental to the public, but it is to their special advantage. The provision under consideration has been inserted to provide against contingencies of that kind, and does not in any way water down the provisions of the principal Act.

Senator NEEDHAM:
Western Australia

– I think it might be wise to call a halt in the enactment of this legislation. We have been waiting since five o’clock this afternoon for a message from the other Chamber, and now it has sent us an amendment to this Bill which is worthy of close consideration. Senator Trenwith has likened the provision to a customer who had a foot which was difficult to fit, and who visited a bootmaker. He pointed out that in order to properly fit the customer the bootmaker might be required to purchase special lasts. In this provision I think that I can detect the cloven hoof of the Fusion Government, and the elector will shortly pass his verdict upon it. In order to make things as smooth as possible for themselves the Ministry are attempting to destroy the effect of the Bill we have passed. Being a layman it is rather difficult for me to grip the real intention of the amendment which we are now discussing. The Bill, as it left this Chamber, provided a penalty for certain offences. The measure was thoroughly discussed here, and I am under the impression that in the form in which it left the Senate it would achieve the ideal which we have in view, namely, the repression of monopolies. We were on the trail of the trusts. We endeavoured to penalize persons who act in restraint of trade. But with all due deference to the framers of the “amendment, I say that if we accept it the vital principle of the Bill will be killed. Herein I see the cloven hoof. That being so, I cannot support the proposed new sub-section.

Senator PEARCE:
Western Australia

– We all know that the shipping companies of Australia have formed a trust, that they keep trade to themselves, and render competition impossible by a system of rebates. They say to a shipper, “ We will charge you 10s. per ton freight upon your goods, but at the end of twelve months we will hand you back is. per ton.” That will be paid into a trust account, and at the end of the year, it will be handed back to you.” Of course, the undertaking is that if, in the meantime, they ship with any other firm, they will forfeit the money. The figures I have given are not correct : but that is the method by which the trust bind their customers. Let us examine the position in the light of the proposed sub-section. Suppose that the trust are prosecuted under the Act, as it will be when it is amended ; they will say that their defence is that that arrangement is not detrimental to the general public, because the latter have the opportunity to go to another firm and make a similar arrangement with them. They can prove that it is not detrimental to the general public, because, as a result of the increased trade and the better organization which has flowed from the trust, they are able to provide better steamers without increasing the freights. As regards unfair competition, the Shipping Trust can say that the competition is not unfair because it is always open to any other firm to do as they have done. They can say that they do not interfere with their competitors, because they do not cut the freights or run their steamers in competition ; in fact, that there is no element of unfair competition in what they do. It seems to me that on both of these points the Shipping Federation, if it is prosecuted, will be provided with a way out by this amendment. The Oil Trust, also, have a rebate arrangement with their customers. These two trusts can, if prosecuted, prove that it is not unfair competition, and that it is not to the detriment of the public. We wash our hands of the Bill. We have never believed that it would do what its authors claimed. We have always said that we did not want to break up the trusts. My honorable friends say that they are going to accomplish that object; but I contend that the amendment will provide a way out for the trusts. I suppose that when the Bill is passed, some prosecutions will follow, and that that provision will be found to be a back-gate to allow the trusts to escape. I believe that the amendment was framed for that purpose, and will have that effect. lt is evidently aimed at that secret -rebate arrangement which is the king-pin of the trusts, not only in Australia, but all over the world. It_ is a significant fact that this saving provision is tacked on to a provision in the Act which deals with rebates and concessions. I intend to vote against the amendment; but I do not propose to take up any more time.

Senator NEEDHAM:
Western Australia

– -If the Minister will refresh his memory by looking up the report of the Western Australian Commission on Ocean Freights, of which I. was a member, he will find that what Senator Pearce has said is very much to the point. Evidence was taken by that Commission which proved conclusively that there was a combination which said to the shipper, “ If you continue to ship by our line, we will give you a certain rebate at the end of the year.” There was also this condition imposed, that the rebate had to lie with the combination for twelve months after it had been earned.. If. for instance, a rebate were due on the 31st December, 1909, it would not be handed over to the shipper until 31st December, 1910. But the combination also said that if, between those dates, the customer shipped with any other line, the rebate would be forfeited. If the combination are ever put on their defence, then, under the wording of this amendment, it will be quite easy for them to get out of trouble. They can prove that it is not unfair competition in all the circumstances. Why ? Because they have completely shut out all competitors, and have a monopoly of the business. There is no better illustration of that position than is furnished by the report of the Royal Commission to which I referred. I suggest that if the Government are sincere in their desire to secure the repression of monopolies, which is the heading of proposed section 7A in the Bill, and to wipe out this curse in shipping and other lines, they will reject the amendment from the other House, because, if it is accepted, it will extend the life of existing monopolies.

Question - That the amendment be agreed to - put. The Committee divided.

AYES: 12

NOES: 6

Majority …… 6

AYES

NOES

Question so resolved in the negative.

Motion agreed to.

House of Representatives’ amendments in clause 5, proposed new section 7B, agreed to.

House of Representatives’ Amendment. - After clause 6, insert new clause 6a,

Senator Sir ROBERT BEST (Victoria - Minister of Trade and Customs) [9.8]. - Section 10 of the Act provides for the granting of an injunction, and the penalty for disobedience is attachment. That is difficult of application to companies, and it is found necessary to provide for a penalty as well as the attachment. The proposed new clause provides that if the Court orders an injunction, and the company or person refuses to obey it, then the offender shall be liable, not only to attachment, but also to a penalty of £500. I move -

That the amendment be agreed to.

Motion agreed to.

House of Representatives’ Amendment.- After clause 7 insert new clause 7A.

Senator Sir ROBERT BEST (Victoria Minister of Trade and ‘Customs [9.9]. - I move -

That the amendment be agreed to.

The object of this clause is to put at rest a doubt which exists as, to whether certain proceedings under sections 13 and 14 of the Act are of a civil or criminal character. A great doubt has been expressed on the subject, and it is of the utmost importance that it shall be quieted, because, if the proceedings happen to be of a civil character, a certain course has to be followed, and if they happen to be of a criminal character, other proceedings must be followed. The intention was that we should follow the procedure of the Customs Act, section 247 of which provides that the procedure shall be civil. This clause is intended to set at rest the doubt which exists, and put the Bill in this respect on all fours with the Customs Act.

Motion agreed to.

Resolutions reported, and report adopted.

Sitting suspended from9.15 to 10.5 p.m.

page 7226

SUPPLEMENTARY APPROPRIATION BILL

Bill received from the House of Representatives, and, under a suspension of the Standing Orders, passed through all its stages.

page 7226

SUPPLEMENTARY APPROPRIATION (WORKS AND BUILDINGS) BILL

Bill received from the House of Representatives, and, under a suspension of the Standing Orders, passed through all its stages.

page 7226

SPECIAL ADJOURNMENT

Motion (by Senator Millen) agreed to-

That the Senate, at its rising, adjourn until’ Wednesday next.

page 7226

ADJOURNMENT

Close of the Session - Appointment of High Commissioner.

Senator MILLEN:
New South WalesVicePresident of the Executive Council · Free Trade

– I move -

That the Senate do now adjourn.

I take this opportunity of extending to honorable senators the cordial thanks of the Government, and my own personal thanks, for the very great assistance which has been rendered to us throughout the session, and especially within the last few days, when it has been necessary to ask the Senate to exercise special efforts in order to expedite the business of the country. With regard to the session that will shortly be terminated, I wish to say that it has been in many respects a strenuous one. There have been many matters which have invited, and which, indeed, have perhaps called for, sharp conflicts of opinion. But I am pleased to think, looking back over the work of the session - and I trust that I shall have the concurrence of all honorable senators in saying so - that we can terminate our labours with the satisfaction of knowing that a measure of good feeling prevails amongst the various sections. It is true, in asense, that the Senate is not the fighting Chamber of the Federal Parliament ; but, nevertheless, we do have our conflicts here. It is therefore a source of great pleasure to all of us to know that we can part upon terms of good fellowship and personal friendship, and that we can cordially wish each other the compliments of the approaching season.

Senator PEARCE:
Western Australia

– I desire on behalf of those who sit on the Opposition side of the chamber to acknowledge the good wishes expressed by the Vice-President of the Executive Council, and to add that we heartily reciprocate them. The session has been indeed a strenuous one. The conflicts have been sharp. The divisions of opinion have been clear cut. But I am sure that I can speak for those who act with me when I say that we separate without any unpleasant personal feeling towards each other. We can sincerely and heartily wish our colleagues on the Ministerial side of the chamber a Merry Christmas and a Happy New Year.I should like to add that we all desire to include the officers of the Senate and the Hansard staff in our good wishes. We have had the best of service from all.

Senator NEEDHAM, Western Australia) [10:

– I desire to ask the VicePresident of the Executive Council whether, when he replies, he can inform the Senate how long the Government will take in coming to a final determination as to the appointment of the High Commissioner?

Senator MILLEN:
Vice-President of the Executive Council · New South Wales · Free Trade

. -I have nothing to report for the information of my honorable friend in ad dition to that which was conveyed to him and to honorable senators generally this morning.

The PRESIDENT:

– In putting the question, I desire to join with the VicePresident of the Executive Council and Senator Pearce in wishing every honorable member of the Senate a very happy Christmas and a Prosperous New Year. I desire to take occasion to thank honorable senators for the reception they have given to the statements made concerning the officers. I know how strenuous their labours have been, and I also know how earnest and honest they have been in endeavouring to fulfil their duties to the satisfaction’ of the Senate, as well as to their own satisfaction. I most heartily concur in the thanks given to them, because I have had perhaps more opportunities than other honorable senators have had of knowing how well they deserve these acknowledgments.

Question resolved in the affirmative.

Senate adjourned at 10.27p.m.

Cite as: Australia, Senate, Debates, 8 December 1909, viewed 22 October 2017, <http://historichansard.net/senate/1909/19091208_senate_3_54/>.