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Friday, 13 July 1906


Mr HIGGINS (Northern Melbourne) . - I move -

That the following new clause be inserted : - "11D. (1) Any person party to a contract or member of a combination or in any way concerned in carrying out the contract or the objects of the combination may -

(a)   lodge with the Attorney-General a statutory declaration by himself, or in the case of a corporation by some one approved of in that behalf by the Attorney-General setting forth truly, fully, and completely the terms and particulars of the contract, or the purposes, objects, and terms of agreement or constitution of the combination, as the case may be, and an address in Australia to which notices may be sent by the Attorney-General ; and

(b)   publish the statutory declaration in the Gazette.

(2)   The Attorney-General may at any time send notice to the person above-mentioned (hereinafter called the declarant) to the address mentioned in the statutory declaration that he considers the contract or combination likely to restrain trade or commerce to the detriment of the public, or to destroy or injure an Australian industry by unfair competition.

(3)   In any proceeding against the declarant in respect of any offence against section four or section five of this Act alleged to have been committed by him in relation to the contract or combination after the time the statutory declaration has been lodged and published, and before any notice as aforesaid has been sent to him by the Attorney-General it shall be deemed (but as regards the declarant only and not as regards any other person) that the declarant had no intent to contravene the provisions of the section, if he proves that the statutory declaration contains a true, full, and complete statement of the terms and particulars of the contract, or the purposes, objects, and terms of agreement or constitution of the combination, as the case may be, at the date of the statutory declaration and at the date of the alleged offence."

I understand that the proposed new clause has the approval of the Government. In my speech on the second reading I expressed the wish that an honest man, who desired to make certain that he was not breaking the law, should be able to submit the question to some official, whose certificate should exonerate him so long as it lasted. Nine out of every ten of these agreements are perfectly valid, honest, and impugnable, and there are cases where a man would not object to show the terms of a combination to an official ; and, therefore, I suggest in the new clause that a man may submit an agreement to the AttorneyGeneral, who may give a certificate that it does not operate to the harm of the public or involve unfair competition, and that, so long as the certificate is not withdrawn, the arrangement or contract is not to be deemed as contravening the Bill. However, Ministers, especially the AttorneyGeneral, who has kindly looked into my proposal during the last few days, see some need for a limitation. Although I confess I should like the clause to pass as I at first proposed, I recognise that what the Government agree to will meet my object three-fourths of the way, and, in order to save the time of honorable members, I shall submit the new clause in the form which has been approved. The effect of the new . clause is substantially that any person may submit an agreement or arrangement for a combination to the AttorneyGeneral, accompanied bv a sworn declaration as to its truth. The AttorneyGeneral may then send a reply that he regards the arrangement as detrimental to the public, or as unfair competition, and in such case the combination is, of course, illegal. But until the Attorney-General does say that he regards the arrangement as unfair it is deemed to be fair.


Mr Isaacs - No; that is as to the intent.


Mr HIGGINS - The combination is deemed to 6e fair, so far as regards any intent on the part of the person who makes the declaration. I admit that the clause does not . go to the full extent that I desire, but it will at least prevent any man from being subject to criminal prosecuiion, and liable to be thrown into gaol, in relation to a matter as to which he had no intent to do anything against the law. I think

I have explained sufficiently what I have in view ; and, although the clause is a little elaborate, it is plainly worked out to attain the desired end.

Proposed new clause agreed to.

Bill reported with amendments.


Mr ISAACS - (Indi- Attorney-General) [4.28I. - I move -

That the Bill be recommitted to a Committee of the whole House for the reconsideration of clauses 4, 5, 6, 10, 14, and 21.

The recommittal is necessary to make those clauses harmonize with the amendments made in other parts of the Bill, and 1 submit this motion in accordance with an arrangement which 'has been made.

Question resolved in the affirmative.

In Committee:(Recommittal.)

Clause 4 -

Any person who, either as principal or as agent, makes or enters into any contract, or i< or continues to be a member of or engages in any combination .... is guilty of an indictable offence.

Penalty : Five hundred pounds, or one year s imprisonment, or both; in the case of a corporation, Five hundred pounds. . . -

Amendments (by Mr. Isaacs) agreed to-

That the word "indictable," and also the words " or one year's imprisonment, or both ;. in the case of a corporation, Five hundred pounds," be left out.

Clause, as amended, agreed to.

Clause 5 consequentially amended.

Clause 6 - ..... Unfair competition means competition which is unfair in the circumstances: and in the following cases the competition shall be deemed to be unfair unless the contrary is proved -.....

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

Amendment (by Mr. Isaacs) agreed to.

That the words " greatly disorganizing," lines 7 and 8, be left out, with a view to insert in lieu thereof the words " creating substantial disorganization in."

Clause, as amended, agreed to.

Clause 10 -

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.......

Amendments (by Mr. Isaacs) agreed to.

That the words " any competent Court exercising Federal jurisdiction, lines 3 and 4, be left out, with a view to insert in lieu thereof the words "the High Court."

That after the word " injunction," line 4, the following words be inserted - " after hearing and determining the merits and not by way ofinterlocutory order."

That after the word " contract," line 5, the word "or" be left out, with a view to insert in lieu thereof the words "made or entered into after the commencement of this Act or any."

Clause, as amended, agreed to.

Clause 14 -

1.   For the purposes of this Part of this Act competition shall be deemed to be unfair if -

(a)   Under ordinary circumstances of trade it would probably lead to the Australian goods being no longer produced or being withdrawn from the market or being sold at a loss, unless produced at a lower remuneration for labour ; or .

2.   In the following cases the competition shall be deemed unfair unless the contrary is proved -

(c)   If the imported goods are imported by or for the manufacturer or some person acting for or in combination with him or accounting to him and are being sold in Australia at a price which is less than gives the person importing or selling them a fair profit upon their fair foreign market value, or their cost of production, together with all charges after shipment from theplacewhencethegoodsare exported directly to Australia (including Customs duty.)

Amendments (by Mr. Isaacs) agreed to.

That the words " a lower," paragraph a, be left out, with a view to insert in lieu thereof the words " an inadequate."

That thewords " cost of production," paragraph e, be left out, with a view to insert in lieu thereof the words " fair selling value if sold in the country of production."

Clause, as amended, agreed to.

Clause 21 consequentially amended, and agreed to.

Bill reported with further amendments.' Reports adopted.







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