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Friday, 6 July 1906


Mr ISAACS (Indi) (Attorney-General) . - I wish to direct the attention of honorable members to this very important provision. Up to the present we have very carefully provided that no man shall be attacked as a criminal unless he has a guilty mind. In other words, we say that there must be the intent to do wrong. But the honorable member for Hindmarsh pointed out that great injury might be done by allowing' the operations of combinations and contracts detrimental to the public to continue. I think the dividing line should be that, if a wrong is being done, it ought to be stopped, but no man ought to be attacked as a criminal unless he has a guilty mind. So far we have protected the individual from criminal attack unless he has a guilty mind. Under clause 10, as it now stands, it might be impossible for the Court to stop the operations of the most devastating trust unless proof could be given of guilty intent. Considering the whole position, the view we have taken of the matter is that, while adhering strongly to the principle that no man ought to be attacked as a criminal unless criminal intent on his part is shown, still if there is a combination which, in fact, is in restraint of trade to the detriment of the public, the Court should be able to prevent its further continuance, and to say to the parties concerned : " You must not proceed, in the public interest." To that extent, we think that the Sherman Law should be adopted for civil proceedings. To give an analogy, suppose any one of us has a landed property, and some one enters upon it bona

Australian Industries[6 July, 1906.] Preservation Bill. 1135 fide, and takes possession, the owner can go to Court, and, if it is found that the property is not his, the Court will restrain the trespasser merely because he is wrong. But the Court would never think of putting the man in gaol, so long as it was clear that he was an honest man. If a man appropriates property knowing that it is not his own, he is a thief ; if he takes it honestly believing it to be his, he is not, and his action is a mere civil matter. That is the principle we desire to apply in this clause. If the operations of a combinationproceedinghonestly, and formed without intent to do detriment to the public, are still found to be detrimental to the public, and to be breaking down industries by unfair competition, the Court should have power to stop those operations.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is that after trial ?


Mr ISAACS - It would be after full investigation, and the hearing of evidence by such methods as the Court adopts in ordinary cases.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The combination concerned should be found guilty before such action is taken.


Mr ISAACS - Not necessarily guilty of an offence. If the honorable gentleman owned a mine, and some one else claimed it, the Court, on hearing the whole of the facts, would grant an injunction preventing the defendant trespassing upon the mine. If the defendant, without any claim or right at all, and actuated by mere felonious intention, were to take gold from the mine, he should be convicted. All the difference between civil and criminal procedure consists in the honesty of purpose, but if the action taken results in damage to the public, and has an injurious effect, there should be a power to restrain and stop it.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - A conviction mightnot follow the investigation.


Mr ISAACS - There is no question of a conviction under clause 10, which provides for purely civil proceedings. We have now dealt with criminal proceedings, and have left those matters.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That is so, but the Court would have to say whether what was being done constituted a breach of the Act.


Mr ISAACS - The honorable gentleman will understand the. matter better if I say what is proposed to be done with this clause. I propose to strike out all the words after the word " injunction," and insert other words, when the clause will read -

The Attorney-General or any person thereto authorized by him may institute proceedings, in any competent Court exercising Federal jurisdiction, to restrain by injunction the carrying out of any contract or combination which -

(a)   is in restraint of trade or commerce to the detriment of the public ; or

(b)   is destroying or injuring by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I wish to know when that will take effect. Is it after a combination or firm is found to be carrying on something which under this Bill is declared to be illegal?


Mr Isaacs - Not necessarily.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I think it should be.


Mr ISAACS - Under the American Act, it is not necessary to get a conviction. This provision, if amended as proposed, will, I think, be to the advantage of the combinations. We do not say to the public that before they can get any protection they must prosecute these people. It is an alternative method of securing the necessary protection of the public without dragging the defendant into a criminal court at all.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Yes ; but it would stick up his business, though there might not beanything wrong in it.


Mr ISAACS - No. It could go on until the Court decided that it should be stopped. The Attorney -General could not stick it up.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But the Court can grant an injunction before it is decided that the combination is illegal.


Mr ISAACS - No. The Court cannot do so before it decides. - The application under the clause would be to stop the combination, and the Court might say, " We will not stop the combination until you convince us that it ought to be stopped." It will not be stopped until the Court has heard evidence, and has come to a conclusion that it should be, because the combination is, for instance, in the terms' of the first paragraph of the proposed amendment - " in restraint of trade or commerce to the detriment of the public." Until that decision is come to, the Court will do nothing, the business will go on, and there will be no power in the Attorney-General to stop any part of it. 1136 Australian Industries [REPRESENTATIVES.] Preservation Bill.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - He can keep the legal proceedings going on for a little time, and can accomplish his purpose while the matter is being discussed.


Mr ISAACS - No.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - May there not be an injunction granted to restrain ?


Mr ISAACS - An injunction will not be granted by the Court until it has decided the matter, and if it is granted it will be upon evidence that the business ought to be stopped. There will be no stoppage of the business until that stage has been reached.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Could it not be stopped on the verdict of the Court without this provision for injunction?


Mr ISAACS - The verdict of the Court is the judgment of the Court after hearing the evidence.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Could it not be stopped without this provision for injunction in those circumstances?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It could be stopped under clause 16.


Mr ISAACS - That is another part of the Bill.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Yes; but it may deal with the same transaction.


Mr ISAACS - I think we should not, confuse this clause with the part of the Bill dealing with dumping, with which it has nothing to do. I am speaking now of legal proceedings, and I desire to make the matter as clear as I can. If there is a combination which,in the opinion of the Attorney-General, is working: wrong, he can, without instituting any criminal proceedings at all, apply to the Court, and prove, if he is able, that the combination is operating in restraint of trade to the detriment of the public, and thus he may, without entering upon any criminal proceedings, ask the Court to stop its operations.


Mr Skene - It might only be a passing breach.


Mr ISAACS - Then the Court would probably say, " We will not grant an injunction."


Mr Skene - Before the AttorneyGeneral could institute proceedings, the whole thing might be at an end.


Mr ISAACS -It might, but he could ask the Court to restrain similar proceedings in future. That would not be to the detriment of the defendant in any way. It is necessary, I think, to protect the public. The Attorney-General may not desire to prove intent to the detriment of the public, but merely to prove that there is a certain combination in restraint of trade, and the Court might then grant an injunction. Here we desire to provide that if there is a restraint of trade to the detriment of the public, the Court may exercise the same power as is exercised in America in similar circumstances. I think that that is the proper course to pursue. I forgot to mention that the proposed amendment includes a proviso, the meaning of which is simply that in order to keep within our constitutional powers we distinctly say what they are. I move -

That all thewords after the word " injunction," line 4, be struck out, with a view to insert in lieu thereof the words " the carrying out of any contract or combination which -

(a)   is in restraint of trade or commerce to the detriment of the public; or

(b)   is destroying or injuring by means of un fair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.

Provided that, except in the case of foreign corporations, or trading or financial corporations formed within the Commonwealth, this section shall only apply to contracts or combinations in relation to commerce with other countries or among the States."







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