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Wednesday, 4 July 1906
Page: 1006

Mr ISAACS (Indi) (Attorney-General) - - I do n°t intend to discuss the general principles of the Bill. We have passed the stage when such a discussion will be in order, while the discussion of the clause as a whole can be undertaken later on. What I propose to do now is to address myself to the question of intent. I should like to point out to the honorable and learned member for Bendigo what will be the position if we do not insert the words which we propose to insert. A number of traders, honestly desirous of carrying on their business to their own advantage, but with a due regard to the public interest, and without endeavouring to break down Australian industries, or to do anything to the detriment of the public, may go to their solicitor or counsel, and say to him, "We do not wish to do anything illegal. We wish to honestly advance our interests without prejudicing, the public welfare." Their legal adviser may thereupon set to work to properly and thoroughly provide for the carrying of their intentions into effect ; but if it turns out that something is done in restraint of trade, and to the detriment of the public, those concerned, although actuated with the best intentions, will be obnoxious to the clause as it stands, and may be branded as criminals. I do not think that that is desired, and it therefore becomes necessary to insert the words " with intent," in order that persons who are free from criminal intent may not be branded as criminals.

Mr Hutchison - Then a Judge may . have to tell a man whose business has been injured that there is no remedy, because the injury was not done designedly.

Mr ISAACS - At the present moment, we are dealing with the incrimination of men; with the question of criminal consequences. The matter to which the honorable member refers will be dealt with when we come to consider subsequent clauses.

Mr Hutchison - It appears not to matter if a man has lost his business by the action of a combination.

Mr ISAACS - Incidents such as the honorable member has in mind are of every-day occurrence. Let me take a simple case to exemplify what I mean. If the honorable member were to enter a shop, and purchase something about which the vendor made some statement as to quality or make, , honest] v believing what he said to be true, an action of damages could not be brought, against him - putting out of con sideration the question of warranty - if his statements turned out to be untrue. If, however, the statements were fraudulent, an action would lie. It is a well known principle of law that, in many instances, consequences have to be endured if there was no fraud, while a remedy is given if fraud was an element in the transaction. It is perfectly consistent with that principle that in the case which the honorable member has in mind, a man shall not be able to recover damages for consequences suffered through the honest action of others, although he would be fairly entitled to compensation if , the results from which he suffered were caused by their dishonest actions.

Mr Hutchison - Then a combine is to do what it likes without fear of consequences.

Mr ISAACS - Not what it likes. If its intention is to injure the public, or to destroy an industry, it can be punished under this provision as it is proposed to amend it ; but I cannot assent to the proposition that men should be committed to gaol, or branded as criminals, although thev have honestly tried to carry on their business without detriment to the public and without destroying an Australian industry

Mr Mcwilliams - I am glad to hear the honorable and learned gentleman say that.

Mr ISAACS - I have said it all along. That has been my contention from the first.

Mr Hutchison - Then this will be a wretched piece of legislation.

Sir John Quick - The Government may as well abandon the Bill.

Mr ISAACS - It will not be necessary to give direct evidence of intent. It is a well known principle of law that a man's actions may indicate his intent much more clearly than his words have done. When men are indicted for conspiracy, direct evidence of intent cannot be procured' in ninety-nine cases out of one hundred.

Mr Hutchison - But men who have nowrongful intent mav be convicted.

Mr ISAACS - A man is presumed tointend that which naturally follows as a consequence of his acts. A man is presumed to intend to bring about the natural' consequences of his acts. Therefore, it is not necessary, even in cases of conspiracy, to prove directly - of course that would be impossible - what intent a , man has ; but convictions are constantly being obtained.

When a man's acts are such that the jury would naturally say that no man in his sound and sober senses would have committed them unless he had a certain intent, the jury are at liberty to deduce that he had such an intent It is not; necessary to produce written or verbal evidence as to intent, because very often the bargains of conspirators are made in secret. But when their acts and the relations of their acts to the things which they are proved to have done are made plain, the jury are asked to come to a conclusion as to the intention behind the act. We are taking a distinct step which I think will prove extremely effective and beneficial. Experience may show that we shall require to strengthen the Ia.w ; but I would much rather see the law strengthened hereafter than pass an enactment at this stage that might involve innocent persons in irreparable consequences. I think it is fair to say that if we can prove that men have banded together and have, in fact, made a contract that proves to be in restraint of trade to the detriment of the public, we ought to take into account very few circumstances, indeed, beyond those upon which a jury could honestly and fairly arrive at a conclusion one way or the other as to the intent.

Sir John Quick - Are the words " with intent" in the Sherman Act?

Mr ISAACS - No; I have already explained that they are not.

Sir John Quick - Has the Sherman Act proved ineffective ?

Mr ISAACS - So far as I know, there has never been a case of actual prosecution under the Sherman Act ; but there has been an application for an injunction. The American Courts have stated that if a contract is in restraint of- trade, whether or not the contract is beneficial or detrimental to the public, it must be repressed.

Mr Hutchison - Does the AttorneyGeneral think that there is no restraint of trade in America?

Mr ISAACS - No doubt there is. Of course, it is for the Committee to say whether they will agree to the insertion of the words "'with intent." But I think that it would be unjust to hold persons liable in cases where it can be shown that they have no improper intent. Unless the words are inserted, it might, in effect, be said to a man. " You may do everything in FOUl power to arrive at an agreement that you think will be beneficial to the public and advantageous to yourself. You mav ask your legal advisers to construct an agreement that will not have the effect of destroying or injuring Australian industry, and vet you may be involved in criminal consequences." Although there is no reference to intent in the Sherman Act, it is necessary, in cases of conspiracy, to prove intent. You cannot have conspiracy without intent.

Mr Hutchison - But it is not only those who enter into conspiracies who commit offences.

Mr ISAACS - The law would apply to any person who might enter into a. contract to effect the purposes against the accomplishment of which the Bill is directed. We are embarking upon new and strong legislation - not a bit too strong to enable us to combat the evils against which, it is aimed - but I regret to say that I cannot take the same view as the honorable and learned member for Bendigo and the honorable member for Hindmarsh. Experience may show us that the evils are so great, and the resistance is so strong, that more drastic legislation is needed, but at present I am not in a position to advise the Committee that we should make the mere fact of restriction of trade to the detriment of the public a criminal offence.

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