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Thursday, 5 July 1906


Mr GLYNN (Angas) .- I do not know of any amendments which will not really touch the foundation of the Bill, the acceptance of which can matter very much. We have carried a series of amendments which seem to modify the provisions of the measure, but which, in very few instances, affect them at all. Last night we substituted for the words " with the design of" the words " with the intent to." There is no difference in the effect of these expressions, nor will it make the very smallest difference whether they are in or not. So long as the competition is proved to be unfair, design or intent will be presumed. We seem to be getting a number of concessions from the Government which really amount to nothing at all. The Attorney-General last night jumped at an amendment suggested by the honorable member for North Sydney. When he accepted it this evening, the honorable and learned gentleman seemed to be in a conciliatory mood, and to be giving us something, but it will not make the smallest difference in the clause, because the obligation is upon the jury to say whether the competition is unfair " in the circumstances." One of the circumstances they will have to consider is involved in the matters referred to in the amendment suggested by the honorable member for North Sydney, but all these matters are to be taken into account in determining whether competition is unfair, and the whole range of factors which might affect their decision are embraced within the words " in the circumstances." Looking at clause 6, I do not know that we can make very much difference in it without affecting the policy of the Bill. We might strike out paragraph a, which really contains the sting, though the other paragraphs may appear to be more noxious to us at first glance. . But if we do that we shall be hitting at the policy of the Bill, which is to assume that a combination is in itself bad, altogether apart from its operations; that is to say, a combination as defined in this Bill. " Commercial trusts are bad," is what the Bill practically says. It does not wait for their operations to prove that they are bad. It assumes it. The offence is entering into a contract. A commercial trust is denned as being established when you enter into a contract of a certain character, and it is assumed that everything else here dealt with will follow as the result of its operations. Assuming that that principle is right, I do not see how we can amend paragraphs b and c. The prosecuting, counsel will have to prove that the competition would probably, or does in fact, result in a lower remuneration for labour. That is to say, the jury will have to be convinced of that fact, and it is only then, or on evidence being given to the jury from which that deduction might - follow, that the defence that -it is not unfair competition comes in.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But is it the contrary of that that has to be proved?


Mr GLYNN - I think that on a fair reading of the clause the Crown will have to prove that the competition would' probably, or does in fact, result in a lower remuneration for labour.


Mr Isaacs - That is so, but that does not conclude the matter.


Mr GLYNN - No, there is then thrown upon the defence the onus of showing that the competition is not unfair. As soon . as a prima facie case is established by the Crown in the terms of paragraphs b and c, then the defence will have to be that the competition is not unfair. It is.- an extraordinary Bill, there is no doubt about that. It will lead to all sorts of perplexities and - and for this many of the lawyers may be able to say "Thank Providence !" - to all sorts of lucrative wrangles.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It will be a good thing for members of the honorable and learned member's profession.


Mr GLYNN - No doubt. This Bill seems to be incorrigible. You cannot touch, it without hitting it right in the centre. It is impossible to amend it. It seems to me that it is like a certain Shakspearian character, Parolles, of whom it was said: -

He hath out-villained villainy so far, that the rarity redeems him.

The 'Bill secures itself immunity from amendment by its very absurdity. One has almost to get up and apologize for being critical when one does not come in with an armful of amendments. The only amendment I could suggest would be the striking out of paragraph a ; but if we were to do that, I am afraid the Attorney-General would consider that he had a lop-sided Bill. The word " probably " might be struck out of paragraph b. It is a tremendous discretion to give to the jury. I do not know what " probably " will mean. The phrase used is " probably result in lower remuneration for labour." Suppose that in the various States there are arbitration awards in force, or awards of the various boards appointed to fix wages; within what time must this ^probably" be effective by competition? What anticipation of the proximity or remoteness of its effect must the jury have where an arbitration award as to wages is in existence, or where the wages have been fixed by boards? The wages may be all right, But capital might be struck. There might be an attack upon some of its profits - but labour will be secured by the awards referred to. Is the clause, then, to be operative, or does the mere possibility that ten years, or two years, afterwards labour might be affected bv the competition in the meantime give jurisdiction to the jury to say that it is competition which will " probably result," some time or another, " in a lower remuneration for labour ?" Then, again, to show what an extraordinary Bill this really is, the Attorney-General himself seemed doubtful whether clause 10, which he says applies to this part of the Bill, does not apply to the other part also.


Mr Isaacs - 1 have no doubt on the point.


Mr GLYNN - I thought the honorable and learned gentleman said that it did not apply to this part.


Mr Isaacs - No. Clause 14, I said, does not apply to this part.


Mr GLYNN - I must have misunderstood the honorable and learned gentleman. But it is due to the extraordinary way in which this Bill is drawn. Its application may be to the two clauses we have not yet dealt with which, as dealing with operations, bring us into the region of common sense, so far as common-sense may be alleged in connexion with this Bill. It might apply to clauses 4 and 5, which deal purely with entering into a contract and intending to do something, because the offence is entering into the contract. Under this, the Attorney-General might institute proceedings to stop a man entering into a contract, which is an extraordinary application to be made to a Court of Justice. I suppose we must be satisfied. We are here in a dual capacity.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The product or article is dealt with in precisely the same way in both clauses.


Mr GLYNN - However, there may be some means of amending this in such a way as to make it a little more palatable ; but, so long as the principle remains, one is dis-' armed by the futility of any attempt to amend it.







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