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Wednesday, 4 July 1906
Page: 1037


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) . - I wish to direct attention to sub-clause 2, because as it is framed. I think it will go much further than the Attorney-General intends. I presume that he does not desire that it shall apply to every contractor, unless there has been a prosecution. I suggest that after the word " contract," the words " adjudged to have been," be inserted, so as to make the sub-clause read -

Every contract adjudged to have been made or entered into in contravention of this section shall be absolutely, illegal and void.

If the sub-clause is left as it is, it will subject every contract made in the country, concerning which there has been no prosecution at all, to the charge of being invalid, because it is in breach of clause 5.


Mr Isaacs - Every contract in restraint of trade.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - But unless it has been adjudged to be in restraint of trade, I apprehend that the AttorneyGeneral does not wish it to be held illegal.


Mr Isaacs - 'Yes, I do.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I do not think that the Attorney-General has sufficiently considered this. If it is obvious that there has been an intention within the meaning of clause 5, I take it that there will be a prosecution, and, following that, a judgment, and I could understand the Bill enacting that any contract adjudged to have been made or entered into in contravention of the section shall be absolutely illegal and void. But if the Attorney-General opens up to parties to a contract this new defence that it is void under section 5 of the Australian Industries Preservation Act, every one who has entered into a contract may be called upon to embark in litigation involving him in an expenditure of hundreds of pounds. Surely it would be sufficient to say that contracts adjudged to have been made or entered into in contravention of the Act shall be void. Sub-clause 2 now provides that every contract, including every conceivable agreement which can be entered into throughout the Commonwealth, made in contravention of this clause shall be absolutely illegal and void.


Mr Isaacs - The Sherman Act provides that every contract or combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce, is hereby declared; to be illegal.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I think we realize that the Sherman Act has been a failure.


Mr Isaacs - Not on this account.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The AttorneyGeneral has no evidence that that provision has been a success, or that it has not proved objectionable to the mercantile world. Surely it is enough to say that any contract adjudged to have been made in contravention of the section shall be void.







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