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Thursday, 5 July 1906


Mr JOHNSON (Lang) . - The honorable member for Kooyong very correctly described this clause as a. blot on the Bill, but he might 'with even greater accuracy have described the whole Bill as a blot- It is a blot upon the intelligence of those who are responsible for its introduction. It would be a blot upon any Parliament that would accept it in its present form, and a blot upon the community that would return legislators capable of such a stupendous piece of blundering and idiotic legislation. In speaking on the second reading, I objected to this portion of the Bill on the ground that it would reverse an accepted principle of. British jurisprudence, by throwing the onus of proof of innocence upon the person accused.

A person accused under this Bill is deemed to be guilty until he is able to prove his innocence. Hitherto, under all accepted notions of British justice, even the greatest criminal has always been assumed to be innocent until his accusers have proved him to be guilty.


Mr Page - The same thing happens under the Customs Act.


Mr JOHNSON - In all the legislation with which the members of the present Government have had anything to do in this Parliament this fundamental principle of British justice has not only been ignored, but has absolutely been reversed. In these enactments we insist upon presuming guilt merely upon an accusation which there might not be the smallest tittle of evidence to support, and the person assumed to be guilty must rest under the stigma of guilt during the whole of the time he is under prosecution, and until his innocence has been established' by himself. Clause 6 provides that -

For the purpose 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 -

(a)   If the defendant is a Commercial Trust or agent of a Commercial Trust.

In connexion with that, I should like to direct the attention of the Committee to the fact that it was emphasized yesterday by the Attorney-General, when we were dealing with clauses 4 and 5, that it is not only necessary that the defendant shall be a commercial trust or the agent of a commercial trust, or a combination, but as the honorable and learned gentleman pointed out to-night, it must be shown by the prosecution, first of all, that the defendant is a combination, next a combination of a particular kind: again its competition must be such as to injure or destroy, and the combination must be brought together with the intent to do something in the direction of injuring an Australian industry to the detriment of the public.


Mr Isaacs - No; "an industry the preservation of which is advantageous to the Commonwealth, having regard to the interests " of producers, workers, and consumers." The expression " to the detriment of the public " refers to the other clauses, and has nothing to do with a commercial trust under paragraph a of this clause.


Mr JOHNSON - But this clause operates in connexion with the two preceding clauses.


Mr Isaacs - Only with respect to the part that refers to unfair competition, and is only refers to the first sub-clause.


Mr JOHNSON - So far as I could understand the position yesterday the gravamen of the charge rests upon the question whether the competition is to the detriment of the public.


Mr Isaacs - No.


Mr JOHNSON - Then my recollection must be at fault. I can only say that it seemed to me that that was clearly the impression conveyed.


Mr Isaacs - I assure the honorable member that he is under a misapprehension.


Mr JOHNSON - I accept the AttorneyGeneral's assurance, and I point out that if it were so it would be necessary, under this clause, for the defendant only to be a commercial trust or the agent of a commercial trust to be brought under the penal clauses of the Bill.


Mr Isaacs - The honorable member will recollect that when the matter was under discussion, and the honorable member for Echuca moved his amendment, it was pointed out that it would not make the slightest difference in the world under paragraph a of the clause then under discussion whether the defendant was a commercial trust or not.


Mr JOHNSON - The defendant, as a commercial . trust, or the agent of a commercial trust, will, by reason of that very fact, be deemed guilty of unfair competition.


Mr Isaacs - The honorable member will recollect that the honorable member for Wentworth very clearly pointed out that that question is not affected by paragraph a.


Mr JOHNSON - Then what is the meaning of the words - and in the following cases the competition shall be deemed to be unfair until the contrary is proved : -

(a)   If the defendant is a Commercial Trust or agent of a Commercial Trust......


Mr Isaacs - That relates to paragraph b, and not to paragraph a of the preceding clause.


Mr JOHNSON - It relates, as far as I understand it, to the clauses dealing with unfair competition, and makes the defendant subject to the penalties attaching to unfair competition. I accept the explanation of the Attorney-General ; but in regard to this portion of the clause, which throws upon the defendant the onus of proving his innocence, I point out that, as soon as a commercial trust attempts to come into competition with any local industry, proceedings may be taken before the Court. As the Attorney General has pointed out, it then rests with the prosecution to show, first, that it is a combination, next that it is a combination of a particular kind intended to injure, destroy, or adversely affect an Australian industry.


Mr Isaacs - And further, that the industry which the combination is affecting, or seeking to affect, is one that ought to be preserved. All that has to be proved affirmatively and substantively by the prosecution.


Mr JOHNSON - While all this is being proved) the defendant's business is liable to be " held up."


Mr Isaacs - No.


Mr JOHNSON - But I say yes. In the meantime the defendant is to be put to all the annoyance, inconvenience, and expense of attending a Court, not necessarily because he is guilty of any offence, but simply because on him lies the onus of showing that he is not committing, has not committed, or does not intend to commit, a law-manufactured crime. It will be admitted that this is not a natural crime, but that whatever criminality there is in it is manufactured by legislation. The defendant is not only subjected to this inconvenience and less, but his business is liable to be "held up" under provisions in another part of the Bill.


Mr Isaacs - The defendant, of course, is a great commercial trust !

Mr.JOHNSON. - Or the agent of a commercial trust. It has been shown that a commercial trust does not necessarily exist for an evil purpose, but may have been formed withquite a different object, and be beneficial in its operations.


Mr Isaacs - Then it will not come withinthe Bill.

Mr.JOHNSON.- That has to be proved by the commercial trust or the agent: and while all this- is going on the Minister of Trade and Customs may take certain action under clauses 15 and 16.


Mr Isaacs - No.

Mr.JOHNSON. - I take it that this part of the Bill affects what is known as dumping, which, of course, is mainly dealt with in other portions of the measure. So far as I understand the matter, those other portions of the Bill, and the clauses now under consideration, will be read together. My object is to show what might be done under the Bill, and if I am wrong the Attorney -General will correct me.


Mr Isaacs - Those other portions of the Bill will not affect the question dealt with in clause 6.


Mr JOHNSON - While the Court is being moved for the purpose of making a defendant prove his innocence of unfair competition, further action may be taken in another quarter. Under clauses 15 and 16 the Minister of Trade and Customs may "hold up" the business of the accused person. Clause16 provides: -

From the date of the Gazette notice until the report of the Board has been dealt with by the Governor-General, goods the subject of the investigation shall not be imported except upon such security and subject to such conditions as the Minister approves; and those goods shall, if imported in contravention of this section, be deemed to be prohibited imports within the meaning of the Customs Act 1901, and the provisions of that Act shall apply to the goods accordingly.

Does that notrelate to the clause under discussion ?


Mr Isaacs - Not in the smallest degree.


Mr JOHNSON - Not while the defendant is the subject of a prosecution?


Mr Isaacs - No.


Mr JOHNSON - Well, I think it does. We are now practically dealing with the question of dumping, or, at any rate, ' with foreign competition. The Attorney-General shakes his head, but we have had experience of assurances, not only from the Attorney-General, but also from the Minister of Trade and Customs, which have not afterwards been verified. We were assured by those honorable gentlemen that under legislation passed by this House certain things would not happen - I refer particularly to the Commerce Bill, and yet those very things which we on this side prophesied have occurred.


Mr Isaacs - Have they occurred?


Mr JOHNSON - Yes.


Mr Isaacs - What has occurred?


Mr JOHNSON - I refer particularly to the question of grading.


Mr Isaacs - What has occurred ?


Mr JOHNSON - I have a very vivid recollection of the matter.


Mr Isaacs - What has occurred?


Mr JOHNSON - I shall tell the AttorneyGeneral what has occurred if he will not be so impatient in his interruptions. I am not a defendant under a legislativelymanufactured criminal charge. When the Commerce Bill was before us, the question was raised by the honorable member for North Sydney as to whether the measure did not aim at grading. The Minister of Trade and Customs then gave an assurance that there was no intention to do anything in the nature of grading, and the AttorneyGeneral expressed the opinion that the Minister would have no power under the Bill to grade - in fact, the AttorneyGeneral was sure there was no power.


Mr Robinson - The Vice-President of the Executive Council gave his word of honour that it would not be done.


Mr JOHNSON - At the time to which I am referring, the Attorney-General said that in his opinion the Minister of Trade and Customs would have no power to deal with the question of grading; and yet we have seen an attempt made by regulation with that object in connexion with the administration of the Commerce Act.


Mr Isaacs - Nothing has happened.


Mr JOHNSON - But it was attempted by the Minister. If nothing has happened, it is only because of protests by deputations of persons interested, who have shown the impracticability of the proposal - an impracticability which was pointed out by honorable members on this side when the Bill was under discussion. I am merely showing that, whilst the assurances were, I believe, honest expressions of opinion by the Ministers at the time, the Attorney-General, with all his legal knowledge and astuteness, is liable to the same mistakes as are some of us less fortunately gifted mortals. However, I am pleased that this clause is to be amended and improved in some respects, and that in the test of unfair competition due regard will be paid to superior processes, more efficient management, and so forth.


Mr Isaacs - Here is the new sub-clause which I intend to propose.


Mr JOHNSON - I see that the proposed new sub-clause reads -

In determining whether the competition is unfair, regard shall be had to. the efficiency of the management, the processes, the plant and the machinery employed or adopted in relation to the Australian industry affected by the competition.


Mr Kelly - The whole matter is covered by the words " in the circumstances."


Mr JOHNSON - Yes ; but I intend to submit an amendment which may get over the difficulty. I am glad that the AttorneyGeneral has accepted the suggestion of the honorable member for North Sydney in regard to these matters. Had that suggestion not been accepted, there is not the slightest doubt we should! have fast drifted into the condition of a nation of "troglodytes - we should have drifted back to the dismal depths of the dark ages, and, with the rest of the world advancing as the result of inventions and improved1 machinery, we should, at no distant date, suddenly have awakened to the fact that we were a thousand years behind the times. Happily, such a result is to be, to some extent, guarded against by a due regard to those developments and methods which make for increased production, so that their introduc- tion shall not be held to constitute unfair competition within the meaning of the Bill. As I said before, all competition, by its very nature, must be more or less regarded as unfair, if by "unfair competition" is meant competition which injures a rival. I know of no competition which does not in some way or another injure a competitor. For instance, take the case of motor 'buses and motor cars, which supplant at once a mode of conveyance to which -we have hitherto been accustomed.. Motor 'buses and cars replace vehicles drawn by horse traction, and by-and-by perhaps air ships will replace other existing modes of transit. On Thursday next, I understand, we are to be invited to witness an exhibition of wireless telegraphy. That system of telegraphy is a new invention, which comes into competition with the existing, system. I merely point this out in order to show that all competition might be deemed unfair under the Bill if it injured in any way existing trades, industries, professions, or, in fact, any means of livelihood. The very object of wireless telegraphy is to destroy ordinary telegraphy bv the use of wires. All the industries which depend upon wire telegraphy would be affected by it. Yet there is no honorable member but will welcome Marconi's invention as one which will, benefit the" whole human race. Let us see how wireless telegraphy will affect other industries. It 'will affect the industry of cutting down trees and the preparation of poles to hold the tele graph wires; the industry of putting those poles into position; the industry of extracting from the earth the metal from which the wire is made ; the industry of the wire-makers ; the industry of. those who stretch the wires on the poles ; and the industry of the maintenance men. Right throughout the whole gamut of industries which are associated with wire telegraphy, the new invention will have an injurious effect. Yet we who are legislating for the. purpose of preventing competition are next week going down to Queenscliff, at the invitation of a foreign firm,' for the express purpose of seeing this new invention in operation, with a view to its adoption in Australia. We do absurd things. With the one hand we set up a system, and with the other we knock it down. An ordinary contractor who puts in a tender to do certain work injures his competitor who is unsuccessful. He has no desire to advance the interests of his rival. All competition judged by the same standard can be shown to be unfair. The very competition of schoolboys for prizes is in the same category. Competition in the football and cricket field have, the same effect ; and so it is in every walk of life. Let Honorable members consider paragraph c -

If the competition would probably or does in fact result in greatly disorganizing Australian industry or throwing workers out of employment.

How is the question of probability to be determined ?


Mr Isaacs - The object is that you are not to wait until the industry is absolutely destroyed, but that you are to prevent its destruction if you can,


Mr JOHNSON - Will it only be necessary for the complainant to state that he has reason to believe ?


Mr Isaacs - No; he will have to prove the fact. Whatever difficulty there is there would rest on the prosecutor.


Mr JOHNSON - It would not be a difficult matter to prove, by means of such dodges as we have already seen resorted to in Victoria, and yet there would be a considerable amount of justifiable doubt in the minds of some people as to whether a particular industry would really suffer as the result of the competition. And while the prosecutor is proving his case the unfortunate defendant will have his business hung up, and be subject to all the annoyance, inconvenience, and pecuniary loss attached to establishing his innocence.

It is an iniquitous and unfair proposal in every possible way. I desire to move, as an amendment -

That the words " which is in the opinion of the jury unfair .in the circumstances," be left out, with a view to insert in lieu thereof the words " in which unjust or dishonest means are employed for the purpose of destroying or injuring any industry."

In order to test the point, I move, first of all-

That the words " which is," lines 2 and 3, be left out.







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