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Thursday, 5 July 1906

Mr KNOX (Kooyong) .- Ministers promised that when we reached clause 6 we should have explained to us the exact meaning of "unfair competition." I must admit that the Attorney-General's explanation would remove a number of objections if it were possible to attach it to the Bill. Under this clause, however, unfair competition is to be determined by a jury, that is not to be even a special jury.

Mr Isaacs - An amendment has been circulated which provides for a special jury.

Mr KNOX - I was not aware that such ar. amendment had been . circulated. Will the Attorney-General inform me whether a person against whom a charge had been preferred would have the right to challenge any members of the jury which was to hear his case.

Mr Isaacs - Of course he would. Here is a copy of the new clause which has been circulated for several days

Mr KNOX - That disposes of my first objection. The only other point to which I desire to direct attention relatesto unfair competition. I find that under this clause competition is to be deemed unfair until the contrary is proved -

(a)   If the defendant is a commercial trust or agent of a commercial trust ;

(b)   If the competition would probably or does in fact result in a lower remuneration for labour ;

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

The Attorney-General, I suppose, more than any other honorable member of this Committee, is brought closely into contact with the business men of Melbourne, and he must know that the effect of these provisions will seriously hamper commercial enterprise. Whatever his political views may be he surely must recognise that to throw the onus of proof upon the individual or upon the commercial trust which is being attacked--

Mr Isaacs - The clause does not throw the onus of proof upon the individual, but it does throw it upon the commercial trust. How many commercial trusts are there in Melbourne, or indeed throughout Australia?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Hence the urgency for this Bill.

Mr KNOX - Seeing that both the AttorneyGeneral and the Minister of Trade and Customs have admitted that the legislation proposed is. of an exceedinglydrastic character, the course which is ordinarily followed in British communities, so far as accused persons are concerned, might surely be continued.

Mr Isaacs - It is being continued.

Mr KNOX - It is not. The clause provides that in the cases which I have cited, competition shall be deemed to be unfair until the contrary is proved. When a prosecution is originated, I maintain that its authors ought to be in a position to show reasons for their action. Nobody knows better than does the Attorney-General how much a business may be injured by the stigma which may possibly attach to it as the result of any action at law. It has been very well said by one honorable member that the fines which may be inflicted under the Bill - altogether apart from the penalty of imprisonment - constitute a very small matter as compared with the serious loss which may be occasioned by the dislocation of business consequent upon a charge being preferred against any particular individual. I therefore ask the AttorneyGeneral to consider the wisdom of excising "from this clause what is universally regarded as a grossly unfair principle. Under its provisions the onus is upon the accused person to refute the charge that is being preferred against him. If that principle were eliminated much of the fear and distrust which have been created by this Bill might be removed. The procedure contemplated is a most un-British one. I am perfectly aware that the same form of expression is embodied in our Customs Act, but there the reference is to specific articles. I appeal to the Attorney-General to remove from the Bill this undeniable blot, which would enable a charge to be preferred against an individual, to the permanent loss and dislocation of his business, without any justification whatever.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - As the Bill stands, any individual may sue for treble damages in the Court.

Mr Isaacs - The Minister of Trade and Customs has given an undertaking that he will remedy that.

Mr KNOX - In view of the marvellously complicated character of this legislation, and of the impossibility of following its ramifications to finality, I hold that more adequate provision should be made for the protection of defendants than that which is proposed.

Mr Isaacs - The defendants of whom the. honorable member speaks, are the commercial trusts which have banded themselves together for the purpose of destroying other people.

Mr KNOX - There is not a single member of this Committee who would defend the operations of destructive commercial trusts which were bent upon destroying local industries. But the AttorneyGeneral has already stated, by way of interjection, that these trusts are very few in number. That being so, they must be specifically known.

Mr Isaacs - They are not specifically known, but they are very few.

Mr KNOX - Is not that all the more reason why the Bill should contain a clear declaration as to the manner in which litigation shall be instituted, and malicious action prevented? The Attorney-General has said that Part II. and Part III. of the Bill, which relate to the repression of monopolies, and the prevention of dumping respectively, are absolutely distinct. If that be so, in view of the great magnitude of the interests which are involved, I claim that the matters in question should have been dealt with in two separate Bills. Either the whole measure is unimportant, or it is of the greatest importance.

Mr Isaacs - The reason why we em bodied the two parts in one Bill is that we wanted to preserve Australian industries.

Mr KNOX - But the measure is also intended to accomplish another purpose.

Mr Isaacs - Both portions of the Bill are necessary topreserve Australian industries.

Mr KNOX - My chief purpose in rising was to appeal to the Attorney-General to remove from the Bill the blot to which I have referred, which is calculated to do serious injury to many who are engaged in concerted work.

Mr Isaacs - The Bill merely throws upon persons who are bent upon attacking other people the onus of justifying their conduct.

Mr KNOX - When the action has been concluded, it may be found that the author of the attack is a man of straw, and, therefore, unable to pay damages, notwithstanding that he may have inflicted enormous loss upon the body which he has attacked. It is very difficult indeed for a lay member of the Committee to suggest amendments, but I maintain that we are justified in asking the Government to seriously consider the desirability of removing the impression which is abroad that this Bill is intended to crush successful organizations as such. At any time any person, however unimportant, may institute an action which will subject the persons charged to irritation and annoyance. If it is right that the persons charged should be subjected to such annoyance, there can be no objection, but the matter ought not to be left in such a way that the unfortunate man must himself justifyhis position. I respectfully submit that this is a point which the AttorneyGeneral, as the adviser of large commercial associations, will admit requires consideration.

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