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Tuesday, 3 July 1906
Page: 958

Mr ISAACS (Indi) (Attorney-General) . - I think that the honorable and learned member is right in saying that this is a very wide definition. But it is intended to be wide. It is no wider than the definition of the word " person." It is merely a definition of certain combinations of persons, whoever they may be - I do not care whether they are football clubs or bridge clubs, or skating clubs. If they combine in this way, they are commercial trusts, within the meaning of the Bill, but they are outside the limits of the Bill, so long as they do not enter into combinations such as are aimed at by the measure, namely, combinations in restraint of trade or commerce to the detriment of the public, or with the design of destroying Australian industries by unfair competition. We want to make this definition as wide as we can, but when we come to strike at the particular form of abuse which it is intended to prohibit, we limit the scope of the Bill. We say in effect that any person whether he be a footballer or any one else, who does a certain act, or becomes a party to it, will be made amenable to the law.

Mr Higgins - Yes; but is not "commercial trust" a misnomer?

Mr ISAACS - Not for the purposes of the Act. The definition is framed on the lines of many American decisions, which have followed the evolution of trusts and combines in that country. At first, there was what they called simple combinations, composed of separate and independent persons. Then, when the simple combinations were repressed, traders and others adopted the principle of the trust. , When the trusts were repressed, they resorted to the formation of corporations as in the Merger case. In effect, we say that if any persons, provided "they are separate and independent persons carrying on their businesses separately and independently, shall combine - that is, if by means of a trust or an agreement or a corporation, or by any similar means, they surrender their own personal judgment in the conduct of their affairs, they are to be regarded as a commercial trust.

Mr Higgins - Would1 an ordinary pooling arrangement as to shares be regarded as a commercial trust?

Mr ISAACS - A pool has an undefined meaning. I understand it to be an aggregation of capital or of property under conditions which provide for a certain distribution of profits.

Mr Higgins - Suppose that a number of persons with shares agree to exercise their votes in a certain way ?

Mr ISAACS - I should think that such an agreement would come within the definition.

Mr Watson - There is no penalty for pooling unless the parties to the pool do something that is prohibited.

Mr ISAACS - No; nothing would happen to the parties to the pool. The definition of " commercial trust " is merely like that of the word "person."-

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Except that the members of the commercial trust would be liable to be hauled up before a Judge.

Mr ISAACS - The same thing would apply to every individual in the community, in the event of his doing certain things.

Mr Fowler - But if I were hauled up, would I not have a remedy at law against the constable who proceeded against me, unless he could show good cause?

Mr ISAACS - No. I am afraid that, as a general rule, the honorable member would have no remedy. There is no difference in principle, or as to liability to be hauled up, between a commercial trust and any individual in the community. No penalty is attached to the mere formation, of a commercial trust, but if a trust or any other person does certain acts to the detriment of the general public, those actsought to be repressed. Whilst the honorable and learned member is perfectly right in drawing attention to the wide nature of the definition, I explain that it was intended to be wide, and that no penalty will attach to any person merely because of the definition.

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