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Wednesday, 4 July 1906
Page: 983


Mr GLYNN (ANGAS, SOUTH AUSTRALIA) - I have not heard of that before.


Mr Isaacs - An amendment having that object is among those that have been circulated.


Mr GLYNN - I am very glad that we are having submitted to us a series of amendments, which will be calculated to tone down the Bill to some extent, and modify its ridiculous effects. I would point out that even a special jury might be composed of men of the same cast of political thought. The jury might be composed wholly of protectionists, or wholly of freetraders, or of a majority on one side or the other. Moreover, we might have a jury in one district giving one definition! of what was advantageous to the Commonwealth, and another jury in some other place arriving at an entirely different decision. Suppose, for instance, we obtained a decision from a jury in Melbourne that a certain industry should be preserved - would that decision become effective throughout the Comomnwealth, or would the decision with regard to that point be subject to the verdict of every jury that might sit from time to time? We might have a number of conflicting decisions, or differences of opinion.


Mr Isaacs - That would be all in favour of the defendant, because, if one man is in his favour, he cannot be convicted.


Mr GLYNN - That would be in the case of a difference of opinion among the members of a jury. It will certainly not be advantageous to the Commonwealth if broad questions of political economy, which lead to such lengthened disputes in this House, are decided bv any jury which happens to be selected in a particular case, with the views of a section of politicians being put upon the one hand by the Crown prosecutor with the mildness which ought to characterize the prosecution, and on the other with all the emphasis of a partisan in politics. The idea of a jury being called upon to decide these abstruse questions of political economy. seems to me to be absurd, and cannot possibly be productive of any good. It cannot lead to the stability of the institutions of the Commonwealth.


Mr Isaacs - What is the alternative?


Mr GLYNN - I am not bound to suggest an alternative. I do not think that the evils against which this clause is directed really exist to an extent to justify it. It is a provision which does not attack overt acts, but one which attacks intent. The amendments suggested by the Minister show that whilst originally the Government followed the lines of American legislation by attacking operations, they now wish to tone down the Bill by making the terminology of the clause fit in with its true purpose, which is to attack intent.


Mr Isaacs - Our intention was the same all through.


Mr GLYNN - The road to a certain place is paved with good intentions. We can only judge of the clause by the form in which it appears before us. It speaks of " restraint of trade." That expression is now being modified, and in lieu of it we are to have the words " with intent to restrain trade."


Mr Isaacs - Those words will take the place of the word "wilfully" in the first line of the clause.


Mr GLYNN - When I was speaking upon the second reading of the Bill. I pointed out that the word " wilfully " means " knowingly," and that as it is used in this clause, it qualifies the words " makes or enters into any contract.*1 I do not think there is much in the proposal to strike out the word " wilfully." Iff a man enters into a contract, it must be presumed that he does so with a full knowledge of what he is doing. Under this clause, a person may be punished for engaging in competition which a jury may think is likely to be unfair in certain circumstances.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - He may be punished because he succeeds.


Mr GLYNN - -Exactly. The whole of human life is made up of competition. The extent of it may be moral or immoral. Yet that competition is to be declared a wrong, even though it might act as a stimulus to "the effectiveness of certain industries. Competition is not necessarily between corporation arid corporation, or between corporation and individual, it is between a person and persons. Again, the mere fact of a man belonging to a company which has entered into such a contract will render him liable, by virtue of his membership, to the penalties imposed by this clause.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is that so?


Mr GLYNN - That seems to me to be so. If a man is a member of a company he is a member of a combination. If he is a member of a company which enters into a combination with other companies, he is surely both a member of the company and of the combination. Perhaps the AttorneyGeneral will tell US that the word " person " in the Bill is meant to apply to one of the units of the combination.


Mr Isaacs - It has always been held in America that a man is not a member of a combination merely because he is a shareholder in a corporation.


Mr GLYNN - My contention is that these words are far wider than is the policy of the Government. They not only cover the cases which have cropped up in America, but they are more far-reaching. Surely it is not straining the meaning of the word "company" to say that if a man were a member of a company which belongs to a combination, or if he were merely a member of a company which engaged in what was deemed to be unfair competition, he would be liable to the penalties prescribed by this clause. If there be any sense in the provision, the member of a company is liable to the penalties imposed by it. I repeat that under the clause a person may be liable for contracting irrespective of whether he is a member of a combination! or not, and if a person may be thus liable, a corporation may be equally liable. The policy is the .same both in regard to a person and to a. corporation. If that be so, this legislation is exceedingly wide, and will attack all sorts of legitimate competition in healthy industries. If honorable members will look at clause 6 they will see that if a commercial trust or an agent of a commercial trust enters into competition in relation to any of our local industries, it is -prima facie evidence that that trust is guilty of an offence. The clause in question provides -

For the purposes of the last two preceding sections, unfair competition means competition which is, in the opinion of the jury, unfair in the circumstances : and in the following cases the competition shall be deemed to be unfair until the contrary is proved.

It then goes on to declare that the fact that a trust is part of a combination is prima facie evidence against a member of that trust or against the trust itself. If honorable members will turn to paragraphs b and c of clause 6, they will see what dangerous questionsit is proposed to hand over to a jury for decision. For instance, if the jury thinks that the competition "would probably, or does in fact, result in a lower remuneration for labour," or if it "would probably, or does, in fact, result in greatly disorganizing Australian industry, or throwing workers out of employment," it is to be deemed unfair. The jury may be mistaken. They may merely think that it lowers wages. But their opinion is to be unchallengeable, even though it maybe the most ridiculous one in creation.


Mr Watson - Other very serious matters come before juries for decision.


Mr GLYNN - But we ought not to increase the number of perplexing problems handed over to them for determination.


Mr Isaacs - What is the alternative?


Mr GLYNN - I am not here to construct a measure for the Government, but to criticise the Bill which has been submitted by them. I am not prepared to accept as a panacea for all evils, legislation of a more far-reaching character than is the declared policy of the Government. Paragraph c of clause 6 states that competition shall be considered unfair if it does in fact disorganize Australian industry or throw workers out of employment. It is impossible, in the onward march of progress, to conceive of any case in which for a time men are not thrown out of employment by a greater degree of effectiveness1 being given to capital. All mechanical appliances temporarily disorganize labour, although they ultimately add to the wealth of the community. But under this Bill, if a jury think that certain competition tends to disorganize an Australian industry, down comes the penalty upon the party responsible for that competition. It seems to me that in handing over these functions to scratch juries we, as a Parliament, are abrogating one of the highest duties that we have to discharge, namely. the decision for practical purposes of some of the most intricate questions of political economy.


Mr Watson - The honourable and learned member may find that there is less knowledge of political economy in this House than is possessed by the average jury.


Mr GLYNN - We have not tested that. I hope that the Committee will seriously consider the clause before deciding to retain it in its present drastic form.







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