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Wednesday, 4 July 1906
Page: 996


Mr WATSON (Bland) . - Concerning the point to which the honorable member for North Sydney- has adverted', I may say that I was chatting with him last evening about the possibility - which he pointed out - of a number of cases coming before juries in different States and being decided - in some measure at least- under the influence of State prejudices that might exist. It does appear to me that there is something in his contention, and that it is highly undesirable that we should have one decision given in regard to a particular combination in one State, and a different decision given in another State. In any case, the possibility of hauling these combinations before a number of tribunals in the different States is an altogether undesirable one. What we should aim at is to obtain one decision from a competent authority as to whether a particular action by a trust is or is not within the law. The idea should be to secure a clear, effective, and final decision upon a particular set of facts. The system of allowing juries to determine these questions would encou-rage the hearing of a variety of cases, any one of which might succeed It is highlydesirable that we should get some form of tribunal which will lay down a rule in respect to this particular matter. It must be apparent, of course, that whilst we retain the penalty of imprisonment, it will be impossible to rely on other than a juryto determine the guilt or otherwise of the parties. But it seems to me that that difficulty might be overcome - I do not know whether the Attorney-General was present when I commenced my remarks-


Mr Isaacs - No.


Mr WATSON - The honorable member for North Sydney has been putting before the Committee the possibility in some instances of juries deciding cases in accordance with State prejudices, and of conflicting decisions being arrived at in the different States with respect of the same set of facts. I admit that that possibility is a highly undesirable one.


Mr Fisher - It involves thefundamental principle underlying the system of trial by jury.


Mr WATSON - No. The difficulty in this case is altogether different from that which arises under ordinary criminal law. One jury pronounces in respect of a particular set of facts concerning the individual, and the case is then finally disposed of. But, under this clause, it seems possible for attempts to be made to bring a combination to book in different States at different times. The choice could be made of the State in which it would have to answer to a certain complaint. That is to say, in the first place, it would lie with the parties bringing the complaint, and in the second with the Attorney-General, to determine which State should be the battleground with any particular combination. There is nothing in this clause to insure that it must necessarily be the State in which the combination has its head office.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The administration would be affected by the decision, too.


Mr WATSON - Yes. The suggestion which I. have put forward, in a purely tentative fashion, is that the difficulty, might be overcome by abolishing the penalty of imprisonment for the first offence.


Mr Isaacs - We propose to do that in the list of amendments which we have circulated.


Mr WATSON - I was not aware of that. If the penalty of imprisonment for the first offence be abolished, there is no objection to the Justices of the High Court deciding these cases. We could then rely upon a uniform method being applied to their consideration, and upon an answer being given by the High Court that would cover the whole of the Australian ground.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Then the jury would merely have to decide upon the repetition of the offence.


Mr WATSON - I would go further, and for a repetition of the original offence I would prescribe the penalty of imprisonment.


Mr Isaacs - It could not be made an indictable offence without the constitutional provision applying that it must be tried by a jury.


Mr WATSON - But could we not remove any question of an offence being considered an indictable one upon the first occasion? Could we not make a persistence in defying the law an indictable offence? I have not thought the matter out in detail, but that seems to me to be possible. If by foregoing the penalty of imprisonment for the first offence-


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The AttorneyGeneral says that he intends to submit an amendment to that effect.


Mr WATSON - That will meet the preliminary offence.


Mr Fisher - Only in regard to imprisonment.


Mr WATSON - That meets the preliminary offence, which' constitutes the indictable offence.


Mr Fisher - Imprisonment does not cover the whole ground.


Mr WATSON - It is the penalty of imprisonment which renders; itnecessary for us to have these cases tried by jury.


Mr Isaacs - Our proposal is embodied in clause11b, which reads -

The penalty of imprisonment shall not be inflicted upon any person upon his first conviction for an offence under this part of the Act.

We then go on to provide that upon conviction a Judge!may grant an injunction to restrain the continuance or repetition of an offence.


Mr WATSON - That provision would not interfere with what I previously suggested.


Mr Isaacs - We straightway substitute an injunction for the penalty of imprisonment.

Mr.WATSON. - What I amaiming at is the desirability of obtaining a decision which will be good law, and final, so far as we can insure finality throughout Australia - a decision which will be free from any local prejudices, so far as the individuals comprising the tribunal are concerned. I recognise that legitimate objection can be urged against a jury being called! upon to consider a matter in one State, which may affect them in their individual businesses in a different way from :that in which it may affect them in another State. The only way that I can see of overcoming that difficulty is by altering the penalty in such a way as to render it possible for the whole matter to be remitted to the High Court. If the AttorneyGeneral says that that cannot be done, or that he sees very grave reasons why it should not be done, I bow to his judgment. But it does seem to me desirable that we should aim at securing uniformity in the determination of matters of such grave importance as are involved in this Bill.







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