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Wednesday, 4 July 1906
Page: 1005

The CHAIRMAN - The honorable member would be out of order in doing so now.

Mr KELLY - Yes ; but I wish to show how this particular proposal, must necessarily bring into our minds considerations of that wider character. The AttorneyGeneral, by making the scope of this measure so wide, has brought practically every member of the community within its possible embrace, and now, in order that the public shall not be unduly harassed, he wishes to adopt safeguards which may prevent us from getting at the guilty persons whom we wish to punish. In framing legislation of this character, we should be extremely careful that the only persons affected are those at whom we are hitting.

Mr Isaacs - Whom does the honorable member wish to hit?

Mr KELLY - Destructive monopolies. To insert words of the character proposed would make it almost impossible to strike the destructive monopolies which we wish to strike, because if " intention " had to be proved against them, as well as the offence itself, a conviction would never be obtained. The procedure provided for is therefore impracticable. As the honorable member for Hindmarsh has pointed out, persons arrested for drunkenness and disorderly conduct have not generally commenced the day's expedition with the " intention " of becoming drunk, but they are nevertheless punished for their offence. Under the clause as it is proposed to amend it, however, it will be necessary to show, not only that action has been taken in restraint of trade, but that it was taken with the design of restraining trade. The onus of proof differs in paragraphs a and b, resting on the plaintiff under paragraph a, and on the defendant under paragraph b. If it will be difficult for the plaintiff, under a, to prove design on the part of the defendant, it will be equally difficult for the defendant, under b, to prove absence of design. It seems to me that we have made a difference between the procedure under the two paragraphs which should not have been made. The more important object in view is to prevent restraint of trade in the Commonwealth, and the less important object to prevent unfair competition. The Bill, however, is drafted with the intention of imposing insuperable barriers to unfair competition, while it allows trade to be restrained unless the intention to restrain is proved, which will be a matter of the greatest difficulty. The clearest explanation is needed before the Committee can be fairly asked to decide the question.

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