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Wednesday, 27 June 1906


Mr KELLY (Wentworth) .- I feel a certain amount of diffidence in approaching this question, as I have already dealt with the second portion of the Bill,, upon the motion for its second reading. But since I last addressed myself to it, the honorable member for Dalley has taken up an attitude in regard to the measure which materially assists my position. When I discussed the Bill previously, I endeavoured1 to draw the attention of honorable members to its extraordinary vague wording, and to the curious want of clear definition of theterms used throughout it. I pointed out that although there were constant references in the measure to " monopolies," nobody seemed to be absolutely sure what was intended to be conveyed by that term I showed that the combination which we have always regarded in Austrafia as an absolute monopoly - I refer to the tobacco monopoly - had been reported upon by a Royal Commission, composed chiefly of members of" the Labour Party, in the following terms - as will be seen by reference to page 8 of its report : -

We find that the Combine is a partial, but not a complete, monopoly.

I ask members of the Labour Party whether they do not think that we should pause before passing a measure which isdesigned to deal with certain evils, but which we do not know will actually touchthe abuses that we desire to regulate? I have already shown how vague and unmeaning, from my point of view, is thephrase " restraint of trade," the arrangement of the terms " producers, workers, and consumers," and also the phrase "tothe detriment of the public." I now propose to advance additional reasons of a similar nature, which I hope will induce the Government to accept the amendment of the honorable member for Dalley. The Ministry are asking us to pass this measure hastily.'


Mr Wilks - It is panic legislation.


Mr KELLY - It is panic legislation, seeing that the House is actually unaware of the meaning of the Bill in essential particulars. The criticisms which have been levelled against it from all sides of the House have been of the strongest. The criticism of honorable members who are allegedly supporting the Government clearly shows how badly drawn the measure is, and how necessary it is> to radically amend it. Doubtless the Government will say : " All this is true. The Bill does require amendment. Let us therefore hasten into Committee, where it can be amended." My reply is that there has never been a Bill presented to any Parliament in Australia which has been so carefully drafted with a view to resisting the possibility of amendments as has this measure.


Mr Wilks - It has been done designedly It is the clever draftsmanship of the Attorney-General.


Mr KELLY - If that be so, I say that his clever draftsmanship is not in the best interests of this Assembly. When we get into Committee, and seek to embody in the Bill amendments -which I think the House will indorse, we shall find it almost impossible to give effect to them. "The Attorney-General knows what curious shades of difference there are between the various clauses of the Bill, and how many consequential amendments will be rendered necessary to give effect to any material alteration. The honorable and learned gentleman no doubt thoroughly recognises the truth of what I am saying. He has probably addressed himself to the. arrangement of the measure with all the legal acumen and skill that he is known to possess, with a view to rendering its amendment almost impossible. From the happy and conscious smile upon his face, I believe that my statement is accurate. Recognising that the Bill is deficient in all these particulars, and having regard to the very keen criticism to which it has been subjected by all sections1 of the House, I hold that it is not right for us to go into Committee with undue haste, and that we should refer the Bill back to the Ministry, with a request that they should present us with a measure which will be more reason able and less destructive in its incidence. I wish now to ask the Government - and I see a very talented member of it occupying a seat at the table - what is the exact meaning of the word " public ' ' in the phrase " to the detriment of the public " ? Does it mean the trade, or does it mean the consumer? It is only fair that I should receive a reply to such a simple question. Honorable members are invariably treated with courtesy by some Ministers, including the Minister of Home Affairs, and therefore I ask him what is the meaning of the phrase " to the "detriment of the public " ? Does it mean to the detriment of the trade, or to the detriment of the consumer generally ? Seeing that the Minister refuses to vouchsafe a reply, I suppose that I must supply the answer myself. It must be obvious to honorable members that to read " the public" as "the trade" in this connexion would mean relying entirely upon trade competitors as to when these provisions would be enforced. Therefore, I take it that the word "public" must mean the great Australian public, which constitutes the consumers.


Mr Wilks - It means the great Australian "bite," then.


Mr KELLY - My honorable friend is right. If restraint, of trade to the detriment of the public means restraint of trade to the detriment of the consumer, I think that all legitimate profits will be covered by the phrase "restraint of trade," because every shilling that a trader adds to the cost price of any article is to the detriment of the consumer. If every shilling that the trader adds to the cost of an article is to the detriment of the consumer, it must be " in restraint of trade." Therefore, I say that this phrase, as used in this Bill, covers any legitimate profit, however small and reasonable it may be. Knowing that this phrase' may have this meaning, it will be admitted that it is so vaguely drawn, that I am justified in asking the Ministry to accept the suggestion of the honorable member for Dalley, and take the measure back for further consideration. We shall be told, in answer to what I have just put- before honorable members, that there must be an agreement between persons to fix profits before any question of illegality can arise. This means practically that bankers will be unable to arrange the rates of overdrafts, exchange, and discount. These are points I wish to commend to the earnest consideration of the House. The Bill as it stands at present, will undoubtedly prevent bankers from arranging rates of overdrafts, discount, and exchange. There can be no doubt that a bank is a commercial trust according to this Bill, which provides that a - "Commercial Trust" includes a combination whose voting power or determinations are controlled or controllable by..... the creation of a Board of Management or its equivalent.

A bank, therefore, is a commerical trust, and its operations may extend beyond the boundaries of any one State. Therefore, a bank will, in future, if this Bill is passed in its present form, be prevented from arranging rates of overdraft, exchange, or discount. That is a serious position for honorable members to face. The House should pause before it hastily passes any measure of such far-reaching importance. I direct the attention of honorable members to another point. Suppose two people acting fin conjunation, have bought any goods at a high price, and find immediately after purchasing that the market for them is falling. These people will form a commercial trust under the interpretation clause of this Bill, because they are bound by an agreement, and they will be unable to hold on to the goods they have . purchased in anticipation of the market for them becoming favorable again. They will have to sell at once, because, if they hold, their action will be considered a restraint of trade. For them to hold on in the hope of profitable selling means to prevent somebody else from cheap buying, which is an obvious restraint of trade under this Bill as it stands. I therefore again suggest the necessity for referring the Bill back to the Government. I ask honorable members to consider the position in which that great newspaper, the Melbourne Age - the second newspaper in the city of Melbourne - which is doing all it can to secure the hasty passage of this measure, will be placed if the Bill is passed as; it stands. The Age proprietary is undoubtedly a commercial trust. The Age advertises that it has a circulation in all the States, and it is therefore an Inter-State concern. In almost every issue it deliberately does all it can to discredit the sale of the rival newspaper in this city. Is the Melbourne Age, with it& extravagant statements of its own circulation, and misleading statements of its rival's powers, not to come under the provisions of this Bill ? If the

Ageis successful in injuring the businessof its great rival, that is surely a restraint of trade.


Mr SPEAKER - Does the honorable member suggest that that question isaffected by the Tariff Commission's report ?


Mr KELLY - I say that this consideration is one which should induce the Government to take the Bill back if for ever so short a time, with a view to its being re-drafted in order to prevent such a possibility as I have suggested arising.


Mr SPEAKER - Does that touch the report of the Tariff Commission?


Mr KELLY - I do. not wish to provoke or to evade a ruling by you, sir, but my point is that this measure has obviously been so hurriedly and vaguely drawn that its amendment in Committee will be practically impossible, and I am suggesting additional reasons why it should be withdrawn from our consideration at the present time, with a view to its re-introduction in a better form. I shall not labour the question as to what might happen in the newspaper trade. There is not the slightest doubt that the design of every trader in any industry is to secure profit for himself, and he can only secure his profit from some other trader. Curiously enough, under this Bill, any trader outside of Australia, when guilty of entering into competition with an Australian trader, is guilty of unfair competition, because his action is bound to interfere with some Australian industry. In the following cases, trade is ipso facto unfair: - In .the first place, when the trader is a commercial trust, and I have shown that a firm can be a commercial trust. In the second case, when, as a result of its competition, there will be a probability of a lower remuneration to labour. In the third place, when its competition will lead to the throwing of workers out of employment in an Australian industry. In all these casescompetition is bound to produce these results to a greater or less degree. I asked the House on a previous Occasion to seriously consider that question, but some honorable members do not consider these questions in the House if, indeed, they consider them anywhere. I suggest these considerations as reasons why the Bill should be withdrawn for the present. Another reason why the Bill should be withdrawn, and radically amended before it is again submitted, is that it contains a subversion of the principle of trial by jury. Trial by jury was introduced to insure a man getting a fair trial from his fellows - those who understand his mode of life and can sympathize with him in every way. But trial by jury under this Bill is trial, not by those iri sympathy with the defendant, but by those whose trade interests, and whose very means of livelihood, must make them anxious to secure his punishment. That, I take it, is a subversion of the principle of trial by jury. On the question of a lower remuneration of labour, I suggest to the Government that it must involve less pay for the same work, or more work for the same pay. If it means less pay for the same work, shearing machines are obviously unfair, and any one who employs them is guilty of unfair competition, since their use enables more sheep to be shorn in a day than could be shorn without their use.


Mr SPEAKER - I am afraid the honorable member is not referring to the amendment.


Mr KELLY - 1 am giving reasons why the Government should take the Bill back and reconsider its provisions. I do not wish to labour the point, as I can see the difficulties of the position, but, similarly, I suggest that the use of monolines and linotypes involves unfair competition, and it is clear that the Bill, as it stands, would have such far-reaching effects that the Government might well withdraw it before it is too late. Every invention discovered and applied must necessarily throw workers out of employment. That is something which the Government have obviously not taken into consideration. Every invention discovered displaces labour in some form or another, and in so far as it does it is unfair competition. It is clear that the scope of this 'Bill is far wider than the framers of it originally intended. In this connexion I say that the successful countries of the world are those in which the inventive genius of mankind has received the greatest encouragement. If, by any action taken in this House, we do anything, to destroy the inventive genius of the Australian people, we shall hamper and restrict Australian progress, and finally ruin the country. I do not think that it is too much to ask the Government to withdraw a measure which they have once submitted to this House. This Government has often taken that course in the past. I am aware that other Governments have found some difficulty in so doing, but it is within the recollection of all of us that this Govern ment withdrew, on half-a-dozen occasions, whole sets of amendments, which were in themselves almost complete Bills, dealing with the question of union labour. They have framed amendment after amendment, and have withdrawn them and substituted for them other amendments as far-reaching as an ordinary Bill. I do say that a Government which has shown such facility in this direction, and which has earned such a reputation for never knowing its own mind, should have no objection to withdraw this measure for two or three weeks, in order that it might be re-introduced in a more complete form. I propose, in conclusion, to say a few words on Part III., as every one knows it purports to deal with the alleged evil of dumping. I use the word "alleged" advisedly. Before we are asked to take up public time in- the consideration of a measure, it is obviously the duty of the Minister in charge of it to show cause for it. I say, without fear of contradiction, that, so far, no cause has been shown for passing Part III. of this Bill. Such cause might be waiting for us in the reports' of the Tariff Commission referred to in the amendment. The Minister has not been able to show any cause, the few statements the honorable gentleman made in this connexion having since been proved conclusively to be absolutely without foundation. There may or there may not be a cause for the introduction of Part III. of this Bill in the Tariff Commission's reports, but I believe that the evidence awaiting us in those reports will show that there is no cause for the passing of a measure of this character. The Tariff Commission's report on agricultural implements has been circulated amongst the members of the Commission since 12th June. Its report on harvesters, which we were led to believe last session formed the absolute crux of an important part of this Bill, was circulated amongst the members of the Commission only yesterday. It is well known that until the Commission corporately considers its proposals, it is impossible for any of its members to divulge any portion of the reports. So that until a report is approved as a whole, this House is absolutely debarred from any opportunity of participating in a knowledge of the evidence which the Commission has secured. To proceed with the Bill without these reports is tantamount to saving that the Government and the Minister of Trade and Customs regard the

Commission as futile, and its proceedings as a farce. Does the Minister regard the work of the Commission as of so little worth, that he is not prepared to wait a day or two in order that the House may be in possession of the evidence acquired ?


Sir William Lyne - It is a very important Commission, but this Bill has nothing to do with ft.


Mr KELLY - The Minister has told the House on many occasions that this Bill is intended to settle the harvester difficulty. But now he attempts to make us believe that the report of the Commission has nothing to do with the business before us. What has the Tariff Commission to do? Has it not to make recommendations to Parliament as to the incidence and working of the Tariff ?


Sir William Lyne - ft is to give us a good Tariff to discuss.


Mr KELLY - I understand that the work of the Tariff Commission is not to give us a Tariff, but to make recommendations.


Sir William Lyne - I have no doubt that it will be a nice Tariff.


Mr KELLY - The Minister surely does not mean that the Commission is going to frame a Tariff 'for us. It has collected evidence upon which we are to judge of the fitness of its recommendations. It is in the collecting of the evidence, and in boiling that evidence down in its reports, that the work of the Commission will be of such inestimable value to Parliament. To say that the- evidence collected has nothing to do with this Bill, which aims at the very root of Customs administration-


Sir William Lyne - No; this Bill has nothing to do with the Tariff.


Mr KELLY - Evidence has been taken on the very point whether or not additional relief is to be afforded to the harvester industry of Australia. The Minister himself has quoted from part of the evidence given before the Commission. One side of the evidence is at least quite as biased as the other. Should not a deliberative Assembly have both sides before it when it gives its verdict? As the Minister himself has endeavoured to gain supporters for his Bill by quoting one side of the evidence, the least he can do is to give us an opportunity of judging for ourselves the whole of it. The Minister declared in his speech, on the authority of some over-keen traveller, that the intention of the American manufacturers of harvesters was to break down the Australian industry. The Tariff

Commission has considered that very point. We ought to have a chance to become seized of the evidence with respect to it. The central idea of the clauses of the Bill under consideration, which I hope the Minister will withdraw from our consideration for the time being, is to restrain unfair competition. But, curiously enough, under the second sub-clause' of clause 14, the onus of proving whether or not an industry is being unfairly conducted is thrown upon the defendant. The Government mav think that the occasion merits such a departure from British traditions of justice, but before asking the House to decide that soserious a condition of affairs has arisen as to justify that proceeding, an opportunity should be given to us to judge for ourselves..


Mr Frazer - One excuse is as goodas another.


Mr KELLY - I dare say that the honorable member thinks so, but nothing can. excuse him from making disorderly interjections. Under this Bill a trader is proved' to be guilty if he and another agree to sell goods together. There is one point that I do not think has been sufficiently dealt with, and I propose to touch upon it. A trader is presumed' to Le guilty if a disproportionately large selling commission is paid! to his agents. It is well known that commissions vary in their relative value without there being necessarily any dishonest purpose. How would this position affect commercial travellers? The keenest traveller surely should get the best reward. If we pass this proposal we shall reduceto a dead level a whole class of our fellow citizens. No man who is keen will have an opportunity of getting a better reward than another. If that idea fits in with the socialistic or communistic principles of some of the supporters of this. Bill, I do not think that it fits in with the general sense of justice of this community. The penalty for doing a number of things under this Bill which are done every day in the most legitimate way, and for the good of the consumers of this country, is an absolute prohibition of the importation of these goods. And bow are these anti-dumping clauses to be put into operation? Who is to decide when the prohibition of goods is to take place? Is this House to decide it? I suggest that the Bill entails an abrogation of our own powers which we should be loth to sanction until the Minister shows cause for so doing. Is Parliament to decide when an article may be completely shut out of the Australian market, when goods may be refused to be imported, and when bargains may not be allowed to be secured by the Australian consumer? If so, is Parliament to decide these things in the open light of day, when the public can read our debates, and know the reasons which prompted our conclusions, . or is the Minister to decide them ? Is it wise to delegate to a single man the determination of questions of such far-reaching importance? Hundreds of thousands of pounds per annum maybe concerned in any particular line of trade. To put the existence of trade of such value at the discretion of any one man is merely to offer an inducement for corruption.I do not for a moment suggest that the present Minister cannot be trusted in this regard. But- I do say that to put discretionary powers of such an- extraordinary nature absolutely at the command of any one man, whoever he may be, is only to offer an inducement for the most widespread corruption.

Sitting suspended from 6.30 to 7.30 p.m.


Mr KELLY - Before the dinner adjournment I was urging, as a reason why the Government should withdraw this measure from our consideration for the time being, with a view to its re-submission later on, the enormous discretionary powers which the Minister of Trade and Customs would enjoy if it were passed in anything like its present form.


Sir William Lyne - No, I would have no power at all.


Mr KELLY - Under the Bill the Minister alone would have the discretion as to starting proceedings against an importing firm. Furthermore, he alone would deal out penalties under a verdict which would be awarded by trade rivals of the importer.


Sir William Lyne - No.


Mr KELLY - Then how far am I wrong ?


Sir William Lyne - I have said that on that particular point the Bill will be amended.


Mr KELLY - Here is a direction in which the Minister is prepared to amend the Bill. He is now willing to put a Judge in the place of the trade rivals.


Sir William Lyne - As I wanted to do at first.


Mr KELLY - Which; the honorable gentleman wanted to do at first, but which for some too obvious, reason, he was unable to do. I would suggest to the Minister, now that he has seen the necessity for amending his Bill in a very vital direction, that this is an additional reason why he should take the whole measure into consideration. He has seen the faulty nature of the Bill in one important regard, and he should, therefore, look over the whole measure, and not merely one part of it. I think he told us that the Judge was to decide whether or not the competition was having the effect complained of, but will he tell us whether the Judge's powers are to be 'exactly similar to those of the Board, or whether he will have the additional power of saying what penalty he thinks will meet the case?


Sir William Lyne - The Judge will have the power if honorable members carry out what I want,


Mr KELLY - The Judge will decide what is to be done ; in other words, he will decide, not only that unfair competition of the kind complained of has been in operation, but that certain regulations will suffice, or, if absolutely essential, the article shall cease to be imported?


Sir William Lyne - Yes.


Mr KELLY - If that is so, I think that a very important amendment in principle has been already accepted by the Minister.


Sir William Lyne - It is one to be proposed, it has not been accepted.


Mr KELLY - The principle has been accepted.


Sir William Lyne - It is going to. be proposed.


Mr KELLY - The honorable gentleman has already accepted the principle.


Sir William Lyne - It is going to be proposed.


Mr KELLY - I will not quibble about words. It is going to be proposed on the suggestion of other members. I think it is a very important amendment on the principle of the Bill, and one which will effect a considerable safeguard. But still the Minister will have the sole power of initiating proceedings.


Sir William Lyne - No, the ComptrollerGeneral.


Mr KELLY - Is he not virtually the Minister? He could not very well go against the views of the Minister.


Sir William Lyne - But the Minister could act upon the advice of the ComptrollerGeneral.


Mr KELLY - Exactly; but the Minister could refuse to take the ComptrollerGeneral's advice as to whether action should be taken or not. I do not think that he will deny that. Even that, I submit, is an enormous power to give, because under the Bill as it is drafted, any importing firm which is ipso facto an importing trust, has thrown upon it the onus of proving whether or not the competition will throw Australian workers out of employment. If the Judge takes the strict reading of the Act he will find that any competition from abroad must affect employment here, since all competition does. I take it that the importing firm is in this happy position, that if the Minister actually starts proceedings, as it will be in his sole discretion to do, the judge will have no option but to decide that the importing firm is guilty of unfair competition within the meaning of the Act.


Sir William Lyne - Oh no; the Judge can say that it is not. He can give his decision just as he likes.


Mr KELLY - Oh, yes, but the Bill is so drafted that the defendant will have to prove that his competition with local industry is not affecting employment, or will not probably affect employment. In such a case it is obvious that the Judge will have only one course open te* him. He must decide that the importer's competition is affecting local employment. If he is in any way a reasonable man he must see that it must affect employment. He has a direction in the Bill as to what he is to do. In such a case the importer's sole consideration must be inevitably to try to stop the proceedings from being started, and the sole person who will have the discretion as to starting proceedings will be the Minister of Trade and Customs. In such a case the victim, being in the toils, must do his level best to insure the goodwill of the Minister of the day.


Mr SPEAKER - I am afraid that the honorable member is again disregarding the amendment, which, has to do with the report of the Tariff Commission on metals and machinery.


Mr KELLY - I am trying to show reasons why the Government should take the Bill again into complete consideration. The Tariff Commission's report on metals and machinery will probably be presented to us in about a fortnight. I believe that a fortnight's consideration in Cabinet would be sufficient to enable the Government to re draft the measure without retaining these objectionable provisions, and I am urging the Government to accept the amendment in order to give themselves that opportunity. The Minister will see that to put in such a position a merchant with money behindhim would be to put a premium upon corruption, and, although we, in this House,, believe that the Minister of the day would justify our confidence in him, still I think we must all recognise that it would not be wise to introduce in the Commonwealth a system which must eventually lead to a state of corruption such as would turn Tammany Hall green with envy. The discretionary powers of Lands Ministers in another State have led to very great abuses. We must not take into consideration the personal equation, the personal integrity, of the Minister of the day in considering a measure of this kind. We must consider the eventual result of putting' any such premium upon corruption as is here proposed to be done. Therefore I submit that the Government ought willingly to reconsider the whole measure, with a view to seeing if it could not be completely remodelled in this regard. I cannot see what evil there is in a country getting its goods as cheaply as possible. I think that in the case of articles of consumption a country, like an individual, should make the best bargain it can. But if the House is determined to prevent the evil of dumping, there are other measures which could be adopted, avoiding this enormous use of discretionary power on the part of the Minister. I hope that, after the Government have accepted the amendment, as I feel sure they will, they will introduce a Bill framed on the lines of the Canadian Anti -Dumping Act, which is verv simple in its object. In Canada the House of Commons decides what is to be done in all cases of proved dumping, and the Minister, as servant of the House, carries out its orders. Section 19 of the Act reads as follows: -

Whenever it appears to the satisfaction of the Minister of Customs, or' of any officer of Customs authorised to collect Customs dues, that the export price, or the actual selling price, tothe importer in Canada, of any imported dutiablearticles of a class or kind made or produced in Canada, is less than the fair market value thereof, as determined according to the basis of value for duty, provided in the Customs Act in respect of imported goods subject to an ad valorem duty, such articles shall, in addition to the duty otherwise established, be subject to a special duty of Customs equal to the difference between such fair market value and such Selling price.


Mr SPEAKER - I would remind the honorable member that the question before the Chair is that certain words be omitted from the motion with a view to insert in lieu thereof these words - not further proceeded with until after the

Tariff Commission has presented its report on metals and machinery.

The honorable member is now arguing, not that the consideration of the Bill be postponed for a time) in order that the Tariff Commission's report may be considered, but that the Bill should be withdrawn, and a new Bill containing certain amendments which he suggests substituted therefor. That is quite a different question from that suggested in the amendment, which I again ask him to discuss.


Mr KELLY - Perhaps, sir, I was infringing the Standing Orders ; but my desire was to point out to the Government how much better a measure might result if this Bill were postponed and reconsidered. I have indicated my view in regard to the method which should be adopted, and suggested the great- difficulty there will be in inserting the necessary amendments in the Bill in Committee. If I find that it cannot be surrounded with safeguards at that stage, I shall feel bound to record my vote against its third reading.







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