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Wednesday, 14 August 1974
Page: 929

Senator MURPHY (New South WalesAttorneyGeneral) - The answer is that the threat to which the person or the corporation has been subjected would be caught under this Bill. It is certainly in restraint of trade. I think it can be said safely that there is a remedy under this Bill although there does not appear to be a remedy under the existing legislation. So that ought to be of some comfort to those who have made the representations to Senator McLaren. AlthoughI would very much like to move on from this clause, perhaps I should refer to some statements made by Mr Justice Isaacs in the famous case heard in 1911 of the King and the AttorneyGeneral of the Commonwealth v. Associated Northern Collieries, commonly known as the coal vend case. It was concerned with monopolisation. This judgment echoes and answers what has been put by Senator Wright.

Senator Wright - The judgment was overruled, was it not?

Senator MURPHY -Of course, but not on this point.

Senator Wright - It was not necessary to deal with that point. It was overruled on another.

Senator MURPHY -Mr Justice Isaacs deals with the legislation and says:

But the legislation is not aimed at the share or proportion of trade which any person whether individual or corporation may acquire in the ordinary course of business. If by superiority of service or commodity, by lower prices more desirable terms or any of the arts and inducements known to active rivalry, always consistent with healthy competition, and free from force or fraud, a trader attracts to himself the whole of the trade in any particular direction he does not offend against the law of monopoly. The field of opportunity is open to all; he has fairly used it and has succeeded. He has succeeded, not because he has silenced but because he has outstripped his competitors, and because the public find it to their advantage to voluntarily accept his service in preference to that of others they might have; and should he abuse his opportunity by asking unduly high prices, or restricting facilities or otherwise, the field is as open as ever for competitors to offer and for the public to accept. At all events, up to that point, he has neither done or intended any harm to the community. But if not content with serving the public to the best of his ability, and letting consequences take care of themselves, he so acts as to purposely concentrate in himself the existing means of public satisfaction in such a way and to such an extent as in the circumstances to prevent or destroy all reasonably effective competition, he does, within the meaning of the statute, monopolise or attempt to monopolise.

Competition itself connotes attraction of trade, and so long as it remains legitimate the law, as I read it, does not reprove it, simply because it attains its necessary object.

When however a trader foresakes his quality of competitor, and becomes an engrosser, when he sets himself to stifle or strike down effective competition which stands as a commercial protection between himself and the community at large, and so substantially to gather into his own hands the power of dictating the terms upon which the public needs may be satisfied he offends against the enactment. Nor is the offence less that 2 or even 20 traders combine to effect this object.

We contend that the clause is an important one. It does not condemn monopolisation as such. It says that where the monopoly position is taken advantage of to do such things as eliminate or substantially damage a competitor, prevent the entry of persons into the market or deter or prevent the person from engaging in competitive behaviour, and so on, a contravention occurs. The Government asks that this clause not be made virtually unworkable by an amendment which requires one to establish in addition to those factors some wilfulness on the part of such a monopoly corporation.

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