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Thursday, 5 July 1906


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) . - I do not intend to enter into a further discussion of this clause, as I have already referred to it incidentally. It represents one of the most important provisions of the whole Bill. It touches, or may touch, a large portion of the trade of Australia - import trade, Inter-State trade, and even some trade within a State. It declares to some extent what is to be the unfair competition which is to be established, and it also imposes the very repugnant condition that competition shall be considered unfair in certain cases until it is proved to be fair. It is of no use to call for a division, but I would ask the Attorney-General whether he sees reason to adhere absolutely to a provision which is so repugnant, as that a man's innocence must be proved before he can be held to be not guilty ? I see no occasion for it. J f the Crown has a case, I see no difficulty in proving the unfairness of the competition, because it is on that very ground that the Crown would take action. I am aware that, in some Acts, the principle of making a man prove his innocence is adopted, but that is because there is extreme necessity for it. But when the Crown acts on evidence - and I do not suppose that it would act without evidence - it should be able to put that evidence forward in Court. There seems to be no occasion in this case, as there may be in others, to deem that a man is guilt\. until he himself proves his innocence. I shall be satisfied if the Attorney-General will take the matter into consideration before the Bill reaches its third reading stage, and while there is an opportunity to recommit ; because I do think that such an extreme requirement is absolutely unnecessary. I would also suggest to the Attorney-General that the word " until " is less satisfactory than the word " unless." It is a very serious thing to take power, or apparently to take power, to interfere with a man's business. - to stop it for the time being - " until " he proves that his competition is not unfair. It may take a considerable time to prove that.


Mr Isaacs - I have no objection to substitute " unless" for " until."


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That will be a much better word if the AttorneyGeneral insists on retaining the provision. But I hope that, on fuller consideration, he will realize that it is neither necessary nor desirable.


Mr Isaacs - I must be candid with the honorable member, and state that I do think the provision necessary. I have considered the matter thoroughly.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - This clause is the hinge upon which the whole Bill turns.


Mr Isaacs - I think the honorable member is attaching too much importance to it. It is an important clause, but it is not so important as that.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I think that it is almost the most important clause in the Bill. It takes power to deal with almost the whole trade and commerce of Australia where there is supposed to be unfair competition. Then we come to the gist of the matter - what is " unfair competition " ? Certain things are named, and then there is a provision that under certain circumstances competition shall be deemed to be unfair until it is proved to be fair. I am quite aware that it is useless to take a division on this point, though the Attorney-General has been urged by a number of honorable members to excise the provision. The same danger will arise under paragraphs a and b. To some extent the danger is reduced by the acceptance of the suggestion of the honorable member for Bland, that a Justice instead of a jury shall deal with a first offence. That amendment offers some safeguard, and removes some uncertainty. But still paragraphs a and b are so dangerous that if a Judge chose to consider the evidence on those points as really establishing unfairness - and some Judges might be easily satisfied on that point - we could have no competition whatever in the industries of Australia. While I am strongly opposed to this anti-British system - for it is anti-British, in that it imputes guilt until innocence is proved - if the Minister will not accept an amendment, I recognise that under present conditions it is useless to press my objection.

Mr. ISAACS(Indi- Attorney-General) the honorable member for North Sydneyhas put his case, and I think he will recognise that I have endeavoured, as far as I could, to meet any suggestion made by him or by any other honorable member, so long as it did not strike at a vital principle. I have no objection to alter " until " to " unless," and I will move an amendment in that direction later on. As to the allegation that the provision is un-British, I desire to say that it is not so in any sense. The same principle has been applied toy Judges of the English Bench of high repute to labour organizations. They have held that what one labourer may do with impunity is unfair if a number of labourers unite together to do it, because it brings a greater amount of pressure to bear upon employers. I am asking the Committee to put the same principle into operation here. If a number of individual traders are carrying on their business, and they find arrayed against them a huge commercial trust, which has the design and. intent to crush them, I say that, when those things are proved - because they will have to be proved affirmatively - the trust will have nothing to complain of if it is asked to justify its action and show that it is fair.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - It is not proof that has to be made ; it is evidence that has to be given.


Mr ISAACS - Evidence has to be given ; but it has to be proved absolutely that this aggregation of capital and of capitalists, has been formed with the intention of destroying or injuring individual traders engaged in occupations that ought to be preserved in the interests of Australia. On the other hand, the trust will only have to show that, in its efforts for this undesirable purpose, it is exhibiting fair play to the individual traders. I do not think that there is anything unBritish in that. I have given reasons for thinking that this clause is necessary. We are all subject to the possibility of error, and I do not pretend to any greater immunity from that than any other honorable member. I move -

That the word "until," line 5, be left out, with a view to insert in lieu thereof the word " unless."







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