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Wednesday, 16 November 1910


Senator ST LEDGER (Queensland) - This very important subject is now before the Senate for the third time, and the Bill ought not to go through without some comment. I realize that resistance is absolutely useless, but some criticism should be made, if only with the object of asking how far legislation of this class is to go. A drastic Act, having for its objectthe preservation of Australian industries, was passed in 1906.At a later date, an amending Act was passed, strengthening the original measure. It seems to me that the industries of Australia have been undergoing a course of preservation which before we are done with them ought to be sufficient to make an Egyptian mummy green with envy. The matter of Australian industries preservation is being used for political purposes by every demagogue or aspirant for parliamentary honours, and the phrase is trotted out like"that blessed word Mesopotamia," in company with phrases about Tories, reactionaries, and others of the kind. I ask the Minister whether this is to be the last of the series of enactments by which Australian industries are to be preserved safely and finally ? After we had passed the Act of 1906, which was a very drastic and comprehensive measure, the cry arose that Australian industries were still unpresented. Indeed, it was said that they were being strangled. Parliament had to preserve them from strangulation. But somehow or other they are still in danger, and another Act must now be passed. We have no sooner finished saving Australian industries from strangulation than still another cry is raised, and this Bill has been introduced in order that they may be preserved again. I should like to know when the Australian industries will have done with this wonderful process of preservation, and when they will be allowed to find their own level, and stand on their own footing. I shall not trouble the Senate by referring to the purpose of two or three of the measures with which we have already dealt, but I shall speak of some of the objects of this amending Bill. It is proposed by this measure to amend section 4 of the principal Act. That section provides that any person who makes or enters into any contract " with intent to restrain trade or commerce to the detriment of the public " shall be liable to certain penalties. The Government propose to amend the section by leaving out the words " to the detriment of the public." I was glad to hear i"he Minister say that there are some combines whose operations are not to the detriment of the public. But why, in the face of that admission, the Government should propose to prosecute people merely for comi.ning in trade, irrespective of whether their operations are to the detriment of the public or not, I am unable to understand. In this matter I think, and I do not mind saying that I hope, the Government will find themselves just where they were before. It is proposed, under the Bill, that it shall be sufficient in a prosecution for the Government to aver that a contract has been made in restraint of trade, and from the explanation given by the Minister, 1 am disposed to think that the Government will find themselves impaled on the horns of a dilemma, which will be 'created by this measure. I regard clause 2 of this Bill as a standing illustration of the mockery and sham that is behind much of this legislation. The Government propose to amend paragraph b, of sub-section 1, of section 4 of the principal Act, by inserting before the words " with intent to destroy or injure" the words " to the destruction or injury of." And if amended as proposed the paragraph will read -

To the destruction ot injury of ot with intent to destroy or injure by means of unfair competition any Australian industry.

I dare say that this matter will, sooner or later, get to the High Court, and it will be for the High Court, and not for us, to interpret the provision. The Minister has shirked the difficulty, and we have had no attempt at a legal explanation of the difference in effect of the principal Act, as it stands, and as it will be amended, if this Bill is passed. I do not mind saying that when this Bill is passed, we shall be pretty well where we were before. The reason is that this Parliament has not sufficient information on which to. base legislation of this kind, and we cannot get it until some case is taken to the High Court, and we have the final judgment of that Court upon every section of our Commonwealth legislation under which a combine is prosecuted. We cannot get that infor- mation. The course pursued in the United States has been to secure decisions of the Supreme Court in connexion with some of the measures which have been passed in that country. But there is no parallel in the United States, or in any country in the world, for such continuous amending legislation of the same kind to secure a judgment of the High Court as we have here, when the matters upon which we require a judgment have never been brought before the High Court.


Senator Clemons - Why discourage perseverance ?


Senator ST LEDGER - How long is this kind of thing to continue?


Senator Clemons - I should think that this ought to finish it.


Senator ST LEDGER - There is an important departure proposed in this. Bill, which is probably due to some United States decisions: I refer to the provision for continuous penalties. Under previous legislation of the kind a penalty of ^500 was fixed for an offence, and there it ended; but, under this Bill, it is proposed that for every day during which the offence is continued, from the time the prose cution makes its averment, the penalty is to be repeated. In dealing with the matter, the Minister referred to a case that occurred in the United' States, in which this course was adopted; but he did not tell the Senate that in one big case in which that was attempted the Supreme Court of the United States decided that the whole proceedings were ultra vires of the Constitution. An amendment of section 7 of the principal Act is proposed. The section reads -

Any person who monopolizes or attempts to monopolize, or combines or conspires with any other person to monopolize any part of the trade or commerce with other countries, or among the States, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence.

The Government propose that that section should be amended by omitting the words - with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity.

The burden of proof of intent is to be removed from the prosecution and thrown upon the defendant. I suppose that the Government think that this will be conclusive. There are two classes of prosecution intended under the principal Act - prosecutions for penalties, and in the case of indictable offences. Prosecutions for penal- ties may, under the principal Act, and under this Bill, be heard before a Justice of the High Court, without a jury; but the number of offences which may be prosecuted before a Justice of the High Court without a jury is enlarged in this Bill. This means, if I am correct in my interpretation, that the number of indictable offences to be tried before a Justice of the High Court, with a jury, is to be reduced. It is a grave question whether the whole form and procedure of trial by jury for indictable offences can be altered by a measure of this kind. A trial before a jury for an indictable offence has a distinct meaning under the Constitution. The intention in preserving under the Constitution the right to trial by jury for an indictable offence was to place a distinct obligation upon the Crown. Yet in measure after measure submitted to, and passed by, this Parliament, we have provided that the obligation of the Crown to prove intent in prosecutions for indictable offences may be removed. I say that, in the case of an indictable offence under the Constitution, we cannot shift the onus of proof. What was the object in preserving trial by jury to the people of the Commonwealth in the case of indictable offences?


Senator Needham - The honorable senator's leader is looking at the clock.


Senator ST LEDGER - That may be so; but I intend to say something on this question. I think it is well worth while to direct attention to this hasty legislation, which, I think, is playing down to the gallery. There is another question to which I should like to refer. I indicated it by interjection when the Minister of Defence was speaking. I mentioned a certain case, and asked how far it would apply. The Bill contains some amendments which deal with discovery. The original Act of 1906, the amending Act of 1908, the amending Act of 1909, and this Bill deal with discovery. There is a case before the. High Court in which that important point came up on an interlocutory proceeding. I wish to know from the Minister whether this Bill is intended to facilitate discovery in a case where it has been denied by a Justice of the High Court. I am aware that I am dealing with a very delicate question. The judgment of a Justice of the High Court has been given on this point, and it is an unfortunate coincidence for the Government that this Bill contains provision with regard to the discovery of documents which may or may not be used in a case which is sub judice. It is very hard for the Minister, and it may be hard for the Crown Law officers, to say exactly how far the Bill may apply when a Justice of the High Court has denied discovery under the Act. What I mean by that expression is that he has denied discovery forthe purpose of preparatory proceedings to the trial. I am inclined to think that, so far as the Government seek to enforce the continuing penalties, the Bill probably will not apply to a case which is sub judice. But so far as the procedure under this measure may be used as evidence to convict persons who are before the Court now, it is very difficult to say whether the Crown could use it in order, at the trial, to get those persons, so to speak, within the meshes of the law. If it is intended to be used, or will be used, in order to enable the Crown to get into its meshes some persons whom it thinks it ought to have prosecuted, but whom it could not, when it entered the process under the Act, bring before the Court, no matter who the persons are or what their evidence is, it is treating them worse than any criminal ought to be treated. I draw attention to the judgment of Mr. Justice Isaacs, because it is doubtful whether the Crown has brought in the Bill in order to apply it in these circumstances. I do not know if that is their intention. If they choose, possibly they can do so. Even if they make that attempt there will be difficulties in the way. I desire to raise a warning against any attempt at what may be called expost facto legislation on this subject. I hope it will be found afterwards that those who are before the Court will remain to be tried and punished by the Acts which we have already passed, and which they are supposed to have broken. I have marked a passage or two in the judgment of Mr. Justice Isaacs, because I think it is well, on a matter of discovery, that the public and the Senate should know how jealously these privileges have been guarded in Parliament and elsewhere, and how clearly they have been asserted by His Honor.


Senator Sir Josiah Symon - We should not destroy the rules of evidence simply because some prosecution has failed.


Senator ST LEDGER - That is the very point I want to emphasize. I think that there is a tendency in this Bill to destroy the law of evidence. It is possible that on account of the judgment it got in the interlocutory proceeding, the Department may abandon the whole of the proceedings against the defendants, and start a new prosecution after this Hill comes into force. On the question of discovery Mr. Justice Isaacs, in The King and another v. The Associated Northern Collieries and others, said -

I come now to a question of considerable moment, but not, I think, when carefully examined, attended with any real doubt. The Crown applied for a direction that the defendants should make discovery of documents, lt must be distinctly understood that this application stands apart from any connexion with the particulars. I mean that it was not put on the ground that the particulars asked for could not be supplied, except after the defendants made discovery. The contention was put broadly and plainly that, this being a civil action, the Crown is entitled to get discovery of documents as a substantive right, and the defendants, if they desire to protect any particular documents from production, have to take the objection in the ordinary way, swearing to the tendency to criminate or penalize, as to which the Court would judge. The question is so important to these proceedings, and as a precedent, that I consider it desirable to state my reasons explicitly'.

After stating his reasons explicitly he referred to the law of England and quoted case after case. He dealt with the arguments advanced by the Crown for the discovery of documents by which a defendant might criminate himself, and after dismissing them he pointed out that when you are asking for the discovery of documents for the purpose of enforcing a penalty you are not in the position of an ordinary plaintiff in a civil action, nor even is the defendant in the ordinary position of a defendant in a civil action, when the plaintiff, even the Crown, is pursuing a penalty. At the end of his judgment Mr. Justice Isaacs summed up the position in this way -

Plainly, then, it is the result to the defendant, and not the personnel of the plaintiff, that affects the determination of the Court, and the statement of the law on the subject, down to ist March,1910, is thus summarized in Lord Halsbury's Laws of England, vol. 11, at p. 41 : " In civil proceeding where the action is brought merely to establish a forfeiture or enforce a penalty discovery will not be allowed, and if allowed may be resisted." Subsequently to that date, in April of the present year, the principle was again relied on by three, probably four, Justices of the Court of Appeal. In re a Debtor (1910 2 K.B, 59) decided that the petitioning creditor in a bankruptcy petition cannot before the hearing of the petition obtain an order for interrogatories or discovery. Fletcher Moulton, L.J., said - "When the real issue is of a penal nature neither discovery or interrogatories will be allowed." And he considered the loss of civil status was a penal consequence, to which the rule applied. Farell, L.J., and Buckley, L.J., expressly, and Kennedy, L.J., apparently, also agreed with him on this point.

In view of these clear and undeviating authorities, I am bound to refuse the application to compel the defendants to give discovery. Two or three references are apposite to the suggestion that the defendants would in fact be sufficiently protected by the subsequent refusal to order production. There is the observation of Lord Lindley in Martin v. Treacher (16 Q.B.D. atp. 513), and the similar statement of Chitty, L.J., in Moxborough case (1897, 2 Q.B., at p. 121), that in such a case the proper course is to stop the matter in limine; and the other reference is to that of Lord Coleridge, C.J., in Jones' case (22 Q.B.D.,' at p. 428), that if the suggested course were taken the very mischief sought to be prevented would ensue. Said the learned L.C.J.- " The whole case for the plaintiff may depend upon his power to trace a particular document into the possession of the defendant, and upon its non-production to prove its contents by secondary evidence."

Nothing short of a distinct legislative provision to the contrary can overcome a principle so deeply rooted and consistently enforced, and as there is no such relevant provision, I must take the law as I find it.

His Honour refused discovery.


Senator Rae - Do you mind telling a layman what discovery means in law?


Senator ST LEDGER - Mr. JusticeIsaacs laid it down that, when you seek to punish a man for a penal offence, not even under the Australian Industries Preservation Act, can you compel him to produce a document to criminate himself? You may ask a man to discover documents over and over again, but His Honour has stated that in the absence of an express provision in a law that request cannot be enforced.


Senator Rae - It is time that we had an Act with such a provision.


Senator ST LEDGER - That is exactly why I have made these remarks.. I am glad of the interjection. Does the honorable senator correctly represent the mind of the Ministry on this matter?


Senator Rae - I do not know.


Senator ST LEDGER - Is that why this Bill has been brought here - in order to get discovery?


Senator Rae - I do not know anything about the Minister's view.


Senator ST LEDGER - Then, why did the honorable senator speak? It is very difficult to say what may happen in a case of this kind. The Bill will probably pass without a division. My contention is that, before we were asked to make this drastic alteration of the law, we ought to have had a complete case tried in every portion of its bearings before the High Court, and with a decision from that body we should have had the law tested from every point of view - from the issue of the writ right through the interlocutory proceedings until the final judgment was given. If that course had been pursued under any one of the very drastic Acts we have passed Parliament would have had for its. guidance something which the Constitution contemplated that it should have, namely, an interpretation from the High Court, whose decision would have enabled us to understand why the law was defective, and probably would have suggested a course of procedure by which we could, supply the deficiency, if we thought that it should be supplied.


Senator Rae - That might, mean two or three years' delay.


Senator ST LEDGER - Is it not better to delay than to seek to enmesh any of these trusts or combines by treating them unjustly? I recognise that this is a work of supererogation on my part. One might as well beat the air as address these remarks to the Minister. I have only been tempted to make them in order to direct attention to the fact that if the proposed amendment of the law be prompted by a desire to interfere with a case which is at present sub judice, it is a prostitution of justice and a grossly tyrannical abuse of the powers of a parliamentary majority. I hope that the Government do not contemplate influencing the course 'of justice in the case in question by ex -post facto legislation. That is expressly forbidden under the Constitution of the United States. It may be that the Minister will reply that he does not know whether this Bill will, or will not, apply to any case which may at present be before the Court. On the other hand, he may say that the course of justice will not be interfered with by it. If he makes the latter declaration, I shall welcome it. But if the measure be intended to accomplish any other purpose, I have discharged my duty by pointing out the danger of this kind of legislation.


Senator Rae - The danger that the guilt of some persons will be sheeted home to them.


Senator ST LEDGER - I would rather that the guilty should escape than that this Parliament should bring them to justice by ex post facto legislation. If there are combines or trusts which have broken the law as it exists to-day, let them be prosecuted under that law. But it will be a disgrace to Commonwealth legislation if this Bill be used to provide further facilities foi prosecuting persons who are at present- before the Court, or against whom prosecutions may be in progress. The Minister of Defence, in introducing the measure, said that it was founded, not upon the legislation of the United States, but upon certain judgments of the Supreme Court of that country. In other words, he is importing those decisions into the Bill to enable him to successfully prosecute certain combines. I object to the measure being made retrospective.


Senator McGregor - No matter how long a person has been a rogue, we must not touch him.


Senator ST LEDGER - I would not touch a dog in the street by ex post facto legislation. Those who are familiar with the history of the United States during the past twelve or fifteen years know that many of the prosecutions which have been undertaken against combines there were political prosecutions. They were instituted for the temporary advantage of a political party. Many of them were mere shams. That fact must be borne in mind. I regret that the Minister of Defence went so far as 10 say that as the principal Act, which was based upon the Sherman Act, had proved to be defective, he had actually imported into this Bill some of the decisions of the Supreme Court of the United States. Has he imported into it the mere obiter dicta of the Judges of that Court, or has he imported into it the judgments of that tribunal? I do not expect the Minister to reply to my question now ; indeed, I do not think that even the Attorney-General, if he were present, would care about answering it forthwith. Apparently, the Australian Industries Preservation Act is like " the blessed word Mesopotamia." It is to be used by every reactionary, and is to be made the mere sport of political parties. I welcome the judgment of the High Court on the question of discovery, because it points out what are the rights of defendants, and what have been their rights for a long time when the Crown seeks to enforce the imposition of penalties against them. I again ask the Minister to say whether this legislation is intended to deal with any case which is sub judice?

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [10.9].- At this period of the evening I do not' propose to detain honorable senators by speaking at any great length. Unfortunately, I labour under the disadvantage of not having heard the speech which was delivered by the Minister of Defence in moving the second reading of the Bill. But I recognise that, as we have enacted a law to restrain monopolies and protect Australian industries, it is our duty, if we find that law defective, to endeavour to make it effective. But, in discharging that duty, we should observe the principle which for many years has underlain our system of jurisprudence in the matter of the prosecution and determination of alleged offences. That principle is that no man should be deemed guilty until his guilt has been proved. But we have, in certain instances, departed from that principle by declaring that no man shall be presumed to be innocent until he has established his innocence. The judgment of Mr. "Justice Isaacs, whichhas been quoted by Senator St. Ledger, shows that the feeling of the Court is not to push these assumptions to the extreme to which some honorable senators wish. Where an attempt is made to commit a man to a term of imprisonment for an alleged offence, it is highly undesirable that he should be convicted unless there is reasonable evidence upon which his conviction can be founded. The mere fact of a man being charged with an offence should not be sufficient to secure his conviction. But, under our Australian Industries Preservation Act, we say that if an offence is alleged against an individual, the onus of proof shall lie upon him. In other words, he has to prove that he is innocent. It is not for the Crown to prove that he is guilty. The judgment which was given the other day emphasizes the danger of such extreme legislation. It shows that if the Crown be vested with extreme powers, the interests of the accused person ought to be as carefully guarded against the inroads of the Crown as they can be within the words of the Statute. Senator St. Ledger has asked whether it is intended to utilize this Bill to deal with cases which are at present sub judice? Unquestionably, if those cases are pending when the measure becomes law, it will be possible to take advantage of the powers which are embodied in it. I have no doubt in my own mind that that is the intention of the Government. They find that, as the law stands, they have been prevented from proceeding in the way that they desired, and consequently they are seeking stronger powers. I think that we ought to follow the usual course by providing that, the Bill shall not apply to cases which are at present before the Courts. Whatever offences individuals may be charged with having committed were committed by them under the law which, exists to-day, and it would be manifestly unfair to make the Bill retrospective. Under this measure, the Government aregoing to create an artificial offence. Fifty men may have committed the offence herecreated, but it would be manifestly unfair to punish them for doing a thing which was not illegal at the time they did it.


Senator Rae - It is not unfair to devise new methods of finding out whether an offence has been committed.


Senator Lt Colonel Sir ALBERT GOULD - But the question is whether the Government are not causing an act which was formerly legal to become illegal by means of legislation. The British principle in dealing with criminal offences is never to allow legislation which is passed to-day to apply to a matter which took place before the legislation was passed. What is generally meant by an illegal act is one which is contrary to moral principle and common justice. Let me direct attention to another matter. This Bill is intended to amend an Act which was passed " for the preservation of Australian industries and the repression of destructive monopolies." Although the Bill is cited as " The Australian Industries Preservation Act 1910," still it appears tome that it contains provisions which are not in conformity with the Act of 1906. Originally it was provided that any person who engaged in a combination in relation to trade and commerce with other countries, or among the States, with intent to restrain trade and commerce to the detriment of the public was guilty of an offence. But under this Bill it is proposed to omit the words " to the detriment of the public," and to insert the words "in restraint of trade or" before the words " with intent to restrain." So that now it is intended to provide that if an action is in fact in restraint of trade it is punishable whether done with the intention to restrain trade or not. The mere act of restraining trade is to be made an offence, without regard to whether it is to the detriment of the public or not. Can it be said that a monopoly which restrains commerce is necessarily a destructive monopoly, unless it can be shown to be to thedetriment of the public? I submit that it is not a reasonable thing to deal with the subject in this way, because many so called monopolies may fairly be regarded as beneficial to the public and not to their detriment. The whole gist and gravamen of the offence is that what is done is to the injury of the public. If nobody is injured, why should the act be punishable? If we are to pass legislation of this description, actions which do no harm to anybody, and which, indeed, may be necessary, may be punished as offences. Surely we are getting altogether beyond what is reasonable. I ask the Minister in charge of the Bill whether he can point to legislation in any country that provides that any act which is in restraint of trade, but not to the detriment of the public, is punishable? It has been left to the imagination of the Commonwealth Parliament to create an offence out of an act which does nobody any injury. I feel sure that we are going too far in this direction. Then, take the clause with regard to prosecutions and fines. It is proposed to add to the principal Act a sub-section providing that it shall be a defence to a proceeding for an offence, and an answer to an allegation that a contract was made or entered into in restraint of trade, or with intent to restrain trade or commerce, if the party alleged to have offended proves that the matter or thing alleged to have been done was not to the detriment of the public, and that the restraint of trade was not unreasonable. The individual proceeded against has to prove that his action was not to the detriment of the public, and was not in. restraint of trade to an unreasonable degree, thus throwing the onus, of proof on him. Section 7 of the principal Act provides a punishment for persons who attempt to monopolize any part of trade and commerce with other countries with intent to control the supply of commodities to the detriment of the public. It is proposed to amend that provision by leaving out the words " with intent to control to the detriment of the public the supply or price of any service, merchandise, or commodity." So that a man will become guilty of an offence if he monopolizes, or attempts to monopolize, any trade or commerce, although he may have no intent to create a monopoly. _ I admit that the Government have the right to make the law effective, but I deny that they have the right to create an offence out of an action which may not be to the injury of any portion of the community. Here we are unnecessarily and harshly creating an offence, and rendering the law more difficult to comply with. I do not object to proposed new section 14a. which simply aims at doing away with technicalities. I have always thought that it is wise to ride rough-shod over technicalities, so long as the alleged offence charged is definite, and the man charged may know what he is charged with. But I strongly object to the provision contained in proposed new section 146, making a man answer in response to interrogations admissible in evidence against him in proceedings for an alleged offence under the Act. Under this Bill the Government are creating certain criminal offences involving penalties and, .possibly, imprisonment, and at the same time they propose to put interrogatories to the person charged with the object of eliciting from him whether he has committed the offence or not. It is not proposed at present to put the thumbscrew on the individual, but it is proposed to put him on his oath, and to make him understand that he will be liable to a prosecution for perjury if he does not give correct answers to questions which, nevertheless, may tend to criminate him, the purpose of the Government being to obtain from the man himself evidence to bring about his own conviction. That is not just. It may be right to go so far as to administer interrogatories. But it is not right to create an offence and then administer interrogatories to the individual for the purpose of using his replies to obtain his conviction. Honorable senators must realize that this Bill will be a very strong incentive to perjury. We are proposing to tell a man that he must answer certain questions, and that if he tells us the truth in answering those questions we shall punish him for having committed the offence. He may arrive at the conclusion that if he does not tell the truth it will be more difficult to convict him of perjury than of the offence with which he is charged, and we may therefore be unable to get reliable evidence. This legislation is calculated to promote deceit and fraud on the part of the community affected by it. Men subjected to examination under a provision of this kind may be tempted to make statements which they would not dream of making in ordinary circumstances. It is not fair to place any man in such a position. With respect to minutes of the meetings of companies, it is proposed to provide that-

In any proceeding for an offence against this Part of this Act,' wherein a combination or conspiracy or attempted combination or conspiracy in contravention of this Act is alleged, any book document paper or writing containing

(a)   any minute note record or memorandum of any proceeding at aDy meeting of the persons or any of the persons alleged to have been parties or privy to the combination conspiracy or attempt, or

(b)   any entry purporting to be a copy of or extract from any such book document paper or writing, shall, upon proof that it was produced by or came from the custody of those persons or any of them, or of a responsible officer or a representative of those persons or any of them - (i.) be admissible in evidence against those persons; and (ii.)be evidence that the matter and things thereby appearing to have been done by those persons or any of them were so done, and that any person thereby appearing to have been presentat the meeting was so present.

The greatest extent to which we ought to go in such a matter is to regard such a minute as prima facie evidence only. My name may be inserted in a minute-book as having been present at a meeting in respect of which a prosecution may lie. I may have been 100 miles away at the time, but the insertion of my name in the minute-book will, under this Bill, be regarded as evidence, and not merely prima facie evidence, that I was present at the meeting. An honorable senator interjected just now that if any person commits an offence we should adopt every means to prove him guilty of it, in order that he may be punished, or that steps may be taken to prevent a repetition of the offence. But what is the principle of law which every lawyer has learned by rote, and nearly every layman? It is that no man is held to be guilty until he has been proved guilty. The reasons for the adoption of that principle are not fanciful reasons. They are based upon the experience of the administration of the law, from the time when torture was used to extort a confession from a man up to the present.


Senator Givens - What about the "third degree," which is used now?


Senator Lt Colonel Sir ALBERT GOULD - This Bill may be said to introduce the "third degree." The principle to which I have referred has grown out of the humanizing effect of enlightenment and knowledge, but under this measure in respect of a certain class of offences the Government propose to introduce the practice of the "third degree," said to be used in the United States. In the circumstances, all that one can do is to protest against this kind of legislation.


Senator Rae - I suppose that the honorable senator will help us to nationalize monopolies in the future?


Senator Lt Colonel Sir ALBERT GOULD - This has nothing to do with the nationalization of monopolies. If Senator Rae and I agree to go into a certain trade it might be contended that we were conducting a monopoly, and it would not be necessary under this Bill to prove that our operations were to the detriment of the public. I protest against this kind of legislation, and I think that this Parliament is making a serious mistake in legislating in this way. That has been my opinion ever since I have been a member of it. I have felt that some of the laws which we have passed are unfair and unjust. In the first instance of this class of legislation we were told that we might rely upon the Minister administering the law with discretion. I have lost all confidence in the discretion of Ministers in instituting certain prosecutions. Parliament should be very careful in passing legislation making it difficult for a person to defend himself when charged with an offence of which he has not been guilty.


Senator Givens - Does the honorable senator think that this Bill will be effectual in putting a stop to monopolies and trusts ?


Senator Lt Colonel Sir ALBERT GOULD - I doubt it very much.


Senator Givens - I am sure it will not. There is only one remedy.


Senator Lt Colonel Sir ALBERT GOULD - It is not the remedy which the honorable senator would suggest. I think I can see several ways in which it would be possible to evade some, at least, of the provisions of this Bill. It may require a little ingenuity, but I think it will be found that they can be evaded, and I suppose that the Government will then propose that they should be given further powers. I hold the opinion that in this kind of legislation we are not acting fairly as between the community and the Government of the day. I say that without any desire whatever to shield any individual who has committed a breach of the law as laid down by Parliament, although his action may have been legal before that law was passed.

Question resolved in the affirmative.

Bill read a second time, and committed







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