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Tuesday, 3 July 1906

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) . - As a layman, it strikes me that we are now asked to sanction a legal dragnet, which makes an offence of the most innocent actions and operations of the trading people of Australia. We are asked to do that in order that some individual at some point may not slip through it. Are we so hard up for a justification of a measure of this kind in Australia that honorable members cannot even cite a probable case? Even the honorable member for Bland has declared that all he can see in connexion with the vends referred to is that there is a possibility that at some time or other something might occur which, would bring them within the scope of this very wide definition.

Mr Watson - If we let them escape, others will escape too.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - What others? All I have to say in that case, is that it seems to me they could not reach an agreement of the character indicated unless they controlled the whole of the operations of coal-raising over the entire Continent. I will go further, and include New Zealand as well. It is almost impossible for a monopoly of the kind indicated by the leader of the Labour Party to spring into existence, and, therefore, it is almost impossible to conceive of cases arising in which trade might be restrained to the detriment of the public within the meaning of this clause, as it is generally understood. But here is the fact that we are actually legislating to meet a condition of things which may arise perhaps fifty years hence. I say it is a pity that in this Federal Parliament we have not something better to -do than to waste time over such enterprises.

Mr Watson - There is one concern in Australia which is at present operating under agreement to the detriment of the public. I refer to the shipping ring.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The shipping ring would be covered by other portions of this definition. All that that ring is doing to the detriment of the public and in- restraint in trade would be covered by paragraph a of this clause.

Mr Watson - I doubt it.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The shipping ring would be a commercial trust, " whose voting power or determinations are controlled or controllable by the creation of a board of management or its equivalent or some similar means."

Mr Watson - I do not think that it has a board of management.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It is a pity that in this Parliament we have not .something better to do than to discuss drag-net legislation pf the character proposed - legislation which is intended to have no immediate effect, and as to which ai case cannot be cited, that is likely to come under its penal clauses.

Mr Watson - I have already cited one.

Mr. HIGGINS(Northern Melbourne) [8.40I. - I think that the extract which was read bv the leader of the Labour Party was a very appropriate one. We are all aware that the legislation upon this subject in the United States has been an absolute failure. Ineffective attempts to improve^ it have been made again and again, and it is quite true, as the honorable member has said, that the corporations or combinations or rings have merely shifted their places, just as the magsman upon a racecourse shifts his location and starts, business again. I quite agree with the honorable member that we ought to endeavour to avoid making this definition obscure, because if it be obscure it mav lead, r.ot only to the escape of those who are guilty, but to the punishment of those who are innocent. The honorable and learned member for Parkes, too, has rightly said that it involves only a matter of the burden of proof - that if we call an organization & " commercial trust " we shall merely shift the question of determining whether the competition to which its operations subject any industry is unfair. At the same time, the shifting of the burden of proof is a very important matter.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I admit that, but I reserve to myself the right to determine whether commercial trusts should as a matter of course have the burden of proof shifted on to them.

Mr HIGGINS - Assuming that in the case of a commercial trust it was not necessary to prove unfair competition, it would then become a very important matter. Let me put a case bearing upon our legislation in regard to the admission of coloured immigrants. Let- us suppose that a law was passed that any coloured person found in our streets should be regarded as a prohibited immigrant unless the contrary could be proved, and let us further suppose that in the definition of the term "coloured immigrant" we laid it down that any person with black eyes, or possessing a moustache of more than a certain length should be deemed to be a coloured person, the whole burden of proof would be shifted. Of course, I am putting a ridiculous case to illustrate my point. If there were such a law operating it would make a very great difference. I understand that the Attorney-General's explanation - which as usual is very lucid and very proper - is " Oh, it does not matter what you call a commercial trust, because the offence is the matter to be considered. That is all very well. But in legislating on this delicate matter, where the smallest difference in the conduct of a man may mean his imprisonment or freedom, it is our duty to be careful rather to keep out the innocent than to let in the. guilty. It is immensely more important that we, in our ignorance- of how to deal with these things - there is ignorance, and I do not think that this mode of dealing with them will ever be efficient - shall not widen the definition beyond what we want absolutely to express. What we want to express is a commercial combination, and we do not desire to include in the term a combination which is not commercial.

Mr Watson - But suppose that, like the Beef Trust in America, the combination were working, under an oral agreement, how would the honorable and learned member deal with them under the law?

Mr HIGGINS - That is exactly the kind of thing to which I referred when I spoke on the second reading of the Bill. In America the experience has been that the combinations never have an agreement. It is the rascally combinations that have no agreements ; they never can be found. It is the honest combinations that have agreements, and they can be found.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The honorable and learned member will admit that they must be very honest men to do the business they do without any writing.

Mr HIGGINS - No. If the honorable and learned member will read the late Henry Demarest Lloyd's book on investigations in America as to pools and trusts, he will find that commission after commission have had the obvious guilty parties before them, and that they denied upon oath that there was any agreement. There is no need of an agreement.

Mr Watson - -Just an understanding.

Mr HIGGINS - Yes. A wink of the eye, a move of the hand, or any little emblem like a handkerchief is quite enough to indicate their meaning. I agree absolutely with the honorable member with regard to the inefficiency of this legislation, and of this part of the Bill, 'and the manner in which such legislation is evaded in America. We are not going, to bring the guilty trusts under the law by means of making too wide a definition of a commercial trust. Perhaps it would be silly to get warm over an interpretation, but I feel sure that we cannot be too careful in this thing. I shall not support any proposal to amend the definition, because I feel that the responsibility is upon the Ministers ; they have to look after the drafting. I would not like to interfere with any part) of the delicate machinery with which they have to deal. But I would suggest to the Ministers that they should see whether, if they think it expedient, they cannot recommit this definition of a commercial trust. Perhaps, while I am on this clause, I may be permitted to indicate to Ministers that there is a curious anomaly. It says - and includes any division, part, constituent, person, or agent, of a Commercial Trust.

But paragraph a of clause 6 says that the competition shallbe deemed to be unfair until the contrary is proved-

Mr Isaacs - It ought to be " constituent person." There should be no comma between "constituent" and "person."

Mr HIGGINS - That, however, is not my point. Clause 6 says -

In the following cases the competition shall be deemed to be unfair until the contrary is proved : -

(a)   If the defendant is a Commercial Trust or agent of a Commercial Trust.

Inasmuch as the agent of a commercial trust is a commercial trust, what is the good of saying that the competition is to be deemed unfair if the defendant is a commercial trust, or the agent of that agent? Apparently, a lorryman or drayman will be held liable under this particular clause. I feel the responsibility of interfering with the drafting of a Bill, and I am quite sure that the Attorney-General will give the matter his full attention.

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