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Tuesday, 3 July 1906
Page: 923


Mr GLYNN (Angas) . - I do not think it matters very much whether the word " destructive " is inserted or left out, because it cannot possibly affect the text of this part of the measure. It is only where the Court is in doubt as to the meaning of a section that it falls back upon the title or heading, which is then regarded as capable of explaining the doubtful phraseology. But, whether we insert the word " destructive " here or not, unless we alter the clause too, we shall not to any extent affect .the Bill as it stands. So that these descriptions in the preamble and in parts of the Bill seem to be more like pious homilies introduced by the Minister of Trade and Customs in order to render more palatable the clauses themselves. If there is an amendment to be made in the clause, I think it ought to be in connexion with the word " repression," because to repress means to put down. This, however, is a Bill to prevent monopolies from arising. As the Minister has shown, a disposition, as he did in the case of the Trade Marks Bill, to gradually destroy the whole structure of the measure by the amendments- which he is introducing, .perhaps he will agree to omit the word " repression " and' insert the word " prevention." According to clause 4, the whole object is to prevent monopolies from arising. Surely we cannot repress a monopoly before it has arisen. The aim of the Minister is to prevent so-called foreign companies] from coming in here and destroying the existing trade, or which are at present in competition with existing manufacturers. If the competition exists at present there is not a monopoly. The object of the Bill is to stop competition which may result in the destruction of local manufactures.


Mr Isaacs - But an Act of Parliament is always speaking in the present, and so it represses it at the time.


Mr GLYNN - The Attorney-General wants to make the provision speak only in the future. If it speaks in the present it must speak the moment it is passed, when the monopoly will still be future. It will speak hereafter, no doubt, and then the hereafter will become the present. But the present, in the Attorney-General's mind, is the hereafter, which cannot arise until some time after the Bill is passed. As we are on the question of phraseology, and the Minister is apparently so delighted 'to change the phraseology, of the Bill, perhaps he will agree to strike out the word " repression," and put in the word " prevention." The honorable member for West Sydney has referred to certain classes of monopolies which ought to be put down as obnoxious in themselves, although they do not do any harm to the public. He referred to a certain shipping combination which ought to be put down, and which is being put down by the Bill. Now, this is a very farreaching measure. It aims at combinations which in themselves are harmless, and are not obnoxious to the public interested, or to the extent which requires the intervention of the Legislature. I hold that a monopoly ought not to be put down unless it is a true one. I agree with many of my friends in the Labour Party in the destruction of true monopolies. There is a monopoly in 1'and; there may be a monopoly in a land grant railway or in tramcars. It may be beneficial to the State or municipality to assume their control, and so far as that is concerned I am with them. But agencies which hurt particular producers or manufacturers are not monopolies, because they may be met by competition in the open market. I therefore think I am entitled to say that these descriptions are put at the top of the parts of the Bill in order to render the clauses more palatable. As a matter offact, in America the so-called monopolies as to which the honorable member for West Sydney and the Bill seem to be so solicitous, are put down against a very strong public opinion. The legislation has gone far beyond what was intended. For instance, in State and Federal Control of Persons and Property, a work by C. G. Tiedeman, several State decisions are referred to, in which it is declared that where the operations of a particular combination - and they do not talk of monopolies there - are harmless-


Mr Isaacs - The Sherman Act uses the word "monopoly."


Mr GLYNN - The terminology in the text-books, and in most of the State Acts I have seen, is " combinations and trusts in restraint of trade." But in this book, at page 404, attention is drawn to the fact that several State decisions were given, acting upon a primary instinct of justice, in a direction which was subsequently found to be wrong by the Supreme Court, because the legislation went beyond the instincts of moral conduct and ethics. It was held by the State Court that-

The test of the validity of such contracts or combinations is not the existence of restriction upon competition imposed thereby, but the reasonableness of that restriction under the facts and circumstances of each particular case.


Mr Isaacs - At common law.


Mr GLYNN - They were following the common law, no doubt. This Bill reverses the principles of British common law, because there restraint of trade must be unreasonable. It shows the care which we must exercise when we find that the ordinary principles in relation to trade which, have' been laid down by Judge after Judge as the very essence of our common law are being reversed by this kind of legislation, and in a way which shocks the sense of justice of some of the State Courts in America. It is pointed out, for instance, that-

The same Question was raised before the Supreme Court of the United States in the Joint Traffic Association, the purpose of which association was stated in the preamble of the articles of agreement to be to " aid in fulfilling the purpose of the Inter-State Commerce Act, to cooperate with each other and adjacent transportation associations, to establish and maintain reasonable and just rates, fares, rules, and regulations on State and Inter-State traffic, to prevent unjust discrimination, and to secure the reduction 'and concentration of agencies and the introduction of economies in the. conduct of freight and passenger service."

Notwithstanding that these were the objects, and that they were being carried cut, it was held that, owing to the wording' of the Act, which, like this Bill, was directed against restraint of trade, the innocence and character of the competition did not give it any immunity, and that the operations of a joint traffic association were illegal within the meaning of the Act. Similarly -

It has been held in a number of States that all contracts and agreements between fire insurance companies for the establishment of uniform rates of premium are in violation of these anti-trust Statutes.

The text-book writers acknowledge that verv often they are harmless, or, at all events, not obnoxious within the spirit of the thing.

Mr. DUGALDTHOMSON (North Sydnev) [3.25!. - The Minister of Tradeand Customs has not told us whether heagrees with the suggestion of the honorable and learned member for Angas.


Sir William Lyne - I propose to ad1here to the words in the Bill.







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