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Friday, 20 October 1905

Senator Sir JOSIAH SYMON (South Australia) - I hope that the Bill will be recommitted for the reconsideration of clause 34. I am one of the unfortunates who was not present when this matter was under discussion in Committee.. I desire to give due weight to what Senator Keating has said, as applied to wanton or frivolous motions for the recommittal of a Bill, but I think that the honorable and learned senator takes an entirely erroneous view of the object with which the recommittal is proposed. I am strongly in favour of the motion proposed by Senator Gould.

I had intended to suggest the recommittal of the Bill with a view to the further consideration of an amendment of my own, which I had printed. But I feel that I should not be justified in seeking the reconsideration of that amendment, because at my request it was moved in Committee by Senator Millen, and was debated. It was suggested in substitution for a subclause of clause 8, as it now stands, and would have been a great improvement to the Bill, but I shall not ask that the time of the Senate shall be taken up in its reconsideration. The provision proposed to be dealt with by Senator Gould is on a totally different footing. I am aware that Senator Keating wishes to ascertain the views of honorable' senators, but he was misguided in suggesting that in moving for the recommittal of the Bill for the reconsideration of clause 34, Senator Gould simply desired that honorable senators who were not present when the matter referred to was dealt with might have an opportunity of discussing it in Committee. That is not so at all.

Senator Keating - Unless it can be shown that there a possibility that the amendment will be altered as the result of their presence now, there can be no purpose in the recommittal.

Senator Sir JOSIAH SYMON - I believe there is such a possibility, but that can only be shown by means of a vote. Speaking from my recollection of the record of what took place in Committee, I believe that the representatives of the Government voted against the amendment moved by Senator Pearce, when it was previously under consideration. If that be so, Ministers are at one with Senator Gould and other honorable senators on this side in thinking that the amendment ought not to appear in the Bill.

Senator Playford - We took a division on it and were beaten, and we are not going to be constantly humbugging about.

Senator Sir JOSIAH SYMON - Why should Senator Playford get in a temper and talk about "constantly"?

Senator Playford - We had two divisions on it.

Senator Sir JOSIAH SYMON - If there had been fifty divisions on it, that would not alter the facts. Senator Playford is too old a parliamentarian not to know that the object of the recommittal of a Bill is to secure the re-discussion of a proposal, with the advantage of fresh con- siderations of the question involved. No one can deny that the amendment to which exception is taken deals with a very important matter. I know of nothing in the Bill which more strongly invites con.sideration from every point of view. Without going into the matter as fully as we might more appropriately do in Committee, I may ask whether the amendment is an improvement on the Bill, or imposes a condition which ought to attach to the copyright granted to newspaper proprietors in respect of cabled news? Is it a vital matter? My honorable friends who are in favour of the recommittal of the Bill think that it is. I agree with them in thinking that it is an exceedingly drastic and important amendment from any point of view, .and is one which ought not to be introduced into this Bill. Nothing can be more fittingly the subject of copyright than news cabled from all parts of the world at great expense, and collected by a skilled staff of men. The men who collect this news require not only to be skilled, but to be possessed of diplomatic gifts of a very high order. No one knows better than does Senator Higgs, who has had great experience in connexion with journalism, that the collection, sifting, arrangement, and condensation of news of this kind, require as high qualifications probably as are required in any department of journalism. If one newspaper proprietor, "off his own bat" and out of his own pocket, goes to the expense of getting this news by the employment of a staff of men on the other side of the world, no one can doubt that he would be entitled to copyright. Would any one contend that he should be compelled by law to supply that news to the proprietors of other newspapers at substantially the same price as he has paid for it ? Will any one contend that he should be compelled to share that news at a price fixed without his consent, by a Minister, under an . Act of Parliament, with other newspaper proprietors, who have not the same amount of enterprise, and are unable to command the same skill ? What difference does it make if three or four newspaper proprietors constitute a partnership in getting this news ?

Senator Story - It makes all the difference. .

Senator Sir JOSIAH SYMON - Will the honorable senator say why? He will admit that if news is secured by the enterprise of an individual newspaper pro- prietor, a certain degree of protection ought to be afforded to him. If the honorable senator were a manufacturer, he would be entitled to fix the price of his goods, having regard to the market. If a person desiring his goods induced some member of Parliament to move an amendment to a Bill to compel him to supply the goods to others at a price which a Minister might think reasonable, and the amendment were carried', I have no doubt the honorable senator would protest.

Senator Story - That is a different thing altogether.

Senator Sir JOSIAH SYMON - Where is the difference?

Senator Story - A combination can get news very much more cheaply than could any individual newspaper proprietor. The competition of a combination is not a fair competition.

Senator Sir JOSIAH SYMON - What nonsense the honorable senator is talking ! Surely an enterprise conducted by a partnership is just as fair as one conducted by an individual ? What absurd rubbish it is to say that it is unfair competition ! It is admitted that one man may do it, and that if he does he is entitled to protection, and it would be grossly unjust to compel him to sell his merchandise, whether it be cable news or anything else, at less than he thinks a fair profit; it would be legalized theft.

Senator Story - We do not give the importers of merchandise a special protection, such as is proposed to be given to the proprietors of newspapers under this Bill.

Senator Sir JOSIAH SYMON - They have absolutely the same protection. If any one takes my honorable friend's goods is not that theft?

Senator Story - Yes.

Senator Sir JOSIAH SYMON - If any one takes goods which are the subject of copyright is not that theft too? I am not seeking to press my honorable friend to accept my views; but I venture to think with great respect to him that he has not considered the subject. It is not a question of fair or unfair competition, but a question of whether he intends to compel a man to sell his own property at less than he chooses. I wish to carry the matter just one step further on this point. If my honorable friends admit that they would not dream of applying such a provision to an individual newspaper proprietor, who might have facilities to get information infinitely more cheaply than another newspaper proprietor, why should they apply it to a partnership? What merit or obloquy is there in calling this a combination? Every partnership is a combination. I am not defending a monopoly of newspapers or anything of that kind. But if two or three newspaper proprietors have entered into a partnership to secure this news - at less expense, if you like by reason of that fact than it could be obtained by one individual proprietor - why is there to be a difference made in their case ? Why should they be subjected to a kind of penal law and told that they must sell their property at cost price ? If two or three newspapers have combined or entered into a partnership to secure this news, why should not all the other newspapers enter into a partnership for that purpose? I really cannot understand on what principle of justice or fair play or honesty my honorable friends contend for this provision. If they proposed to make the provision apply all round, and to compel not merely manufacturers but any combination of workmen to sell their labour at whatever price a workman who. was not therein, chose to say was fair, I could understand it. The principle underlying the provision is that somebody else has something which my honorable friends want, and which they propose to take. There is no monopoly.

Senator Story - They have admitted that there is.

Senator Sir JOSIAH SYMON - Does my honorable friend know what a monopoly means ?

Senator Guthrie - They have bought up all the avenues, and absolutely closed them against everybody else.

Senator Sir JOSIAH SYMON - What nonsense. Does my honorable friend say that two or three newspaper proprietors who have entered into this frightfully wicked partnership to get news to supply the community with, have shut all the avenues by which news can be obtained in London with its population of four or five millions ? Why should these gentlemen not be protected if they are catering for the public?

Senator Guthrie - But are they?

Senator Sir JOSIAH SYMON - Every day my honorable friends read the newspapers and gloat over the telegrams, especially any one which is in favour of their views. Why should the persons who are supplying this news at great cost, and at the exercise of great enterprise be placed under a ban? I cannot understand that my honorable friends can be animated by any sense of fairness. The answer they make is that it is a monopoly. Of course, we know that very often an epithet is used more successfully than an argument, and when my honorable friends dub this association a monopoly, they think that there is an end to it. There is no monopoly or exclusiveness here. I do not know how many newspapers are in the partnership, but probably it does not include a tenth of the newspapers in Australia.

Senator Mulcahy - There is exclusiveness, though, as I shall explain presently.

Senator Sir JOSIAH SYMON - I do not care whether there is exclusiveness or not. I have a perfect right to be exclusive as to my property. But if there are fifty other newspapers why should they not enter into a partnership to obtain similar news? Senator Guthrie's answer to that question is that the existing partnership has closed all the avenues. What avenues have been closed? Can they not get the information in England or other parts of the world? If, as Is urged, it is secondhand news, other persons can pirate it too. I fail to see any possible ground on which this provision can be supported on its merits. All these considerations may very well be threshed out in Committee, because the provision will bear reconsideration, not once, but twenty times. What is the remedy that my honorable friends propose ? Whatever there may be in the merits or, as I think, demerits of their proposal, the remedy is mischievous to the last degree. If the partnership is exlusive - and I grant for the sake of the debate that there is exclusiveness - how are they going to break it down? Or if it is a monopoly, why do they not apply the same principle as they propose to apply to other monopolies? Why do they not propose to nationalize this business as they propose to nationalise the tobacco monopoly?

Senator Guthrie - Will the honorable and learned senator support that proposal?

Senator Sir JOSIAH SYMON - I shall not support robbery in any form. My honorable friends propose not to hand over the business to the State, but to compel a man to sell a property which he already enjoys. I did not' understand Senator Keating to say that this privilege of copyright in cable news is given for the first time by this Bill.

Senator Keating - It is not possessed now in New South 'Wales or Victoria or Queensland.

Senator Sir JOSIAH SYMON - Well,, it -is possessed in the State in which. I am chiefly concerned. Cable news is as much the property of the partnership as the goods; and chattels of any man here are hisproperty. Surely my honorable friends are not going to enact a provision to compel these newspaper proprietors, at the behest of a Minister, to sell their cable news at practically cost price ?

Senator Gray - And their goodwill.

Senator Sir JOSIAH SYMON - I do not care about the goodwill. Surely my honorable friends do not propose to confiscate the property of newspaper proprietors in South Australia, not for the benefit of the State, but for the benefit of some other existing or contemplated rival? Any Parliament which would sanction a provision of that sort, without the utmost consideration and reconsideration, would be playing false to the high principles of justice which mv honorable friends thought they were giving effect to yesterday in voting "for the motion relating to Home Rule for Ireland. It is opposed to every principle of justice as we ordinarily understand it, and to every fair principle of honesty. I ' ask my honorable friends to consider whether they are going the right way to break down what they think is a monopoly or an exclusive enjoyment of certain property ? They are placing the Minister in the position of a political court, liable to have pressure brought to bear upon him by the dominant party of the day, in order to compel the press', or a portion of the press, of the opposite party to hand over the news which they have obtained. ' I ask my honorable friends, who I know are as desirous as anybody else of maintaining the purity of judicial decisions, to say whether that is a right tribunal to constitute. I invite them to say if they propose to intrust the rights of property to a Minister, whose tenure of office depends upon the breath of his supporters in Parliament?

Senator Higgs - Is not that largely done in the case of the Minister of Trade and Customs?'

Senator Sir JOSIAH SYMON - It is not, and, besides, if it were we have examples to-day - and I shall not sa\ whether the Minister is right or wrong- of the danger of intrusting judicial functions to a party politician. I feel that we ought to raise this question to a higher plane. and that is why I ask if my honorable friends wish to intrust to a party politician a power which is purely judicial. What has he to decide? He has to sit in judgment without hearing the party. If there is one principle of British law more absolutely sublime than another, it is that no decision ought to be given without hearing the other side. There is no provision for the Minister to hear witnesses and investigate the facts. He may come to a decision haphazard ; he may come to an adcaptandung decision on the points he has to determine. What are they? This party politician has to make an order like a Judge.

Senator Guthrie - The same Minister may appoint a Judge.

Senator Sir JOSIAH SYMON - What a fine interjection that is ! A Minister may appoint a Judge, but once the appointment is made the Judge, so far as judicial determinations are concerned, is- unassailable. He is not independent of the will of the Crown in respect to Executive matters, but as regards his judgments and the judgment seat, he is beyond the breath of any politician and above interference by any Minister. But here this Minister has to give judgment and to decide three or four most important things. First, he has to decide - without evidence it may be, and without giving the parties an opportunity of defending themselves - whether a combination of newspaper proprietors exists for the purpose of obtaining news. It may be a mixed question of law and fact. No one can tell. No one can prognosticate what the position will be. Having found that the combination exists, the Minister has to find its purpose. What purpose? That of obtaining news concerning facts or events which have taken place outside Australia. Then he has to find that the combination has refused to admit somebody else into the partnership without reasonable cause. That is to say, this Minister has to come to the conclusion that there was no reasonable cause for refusing to admit an applicant. I have always been under the impression that if a partnership chose to exclude any one, even on account of the colour of his hair, it could do so if it liked, But the Minister has to decide that there is no "reasonable cause." What could that be? I can conceive of no more difficult and delicate position. And there is no appeal to any tribunal. It is arbitrary. The Czar of all the Russias could not be in a more arbitrary position than the Minister under this provision. There is an alternative - that the partnership has refused to supply the applicant with news " at reasonable rates." The Minister has to investigate that. He has to say whether the rates are reasonable. He may be unconsciously influenced in his decision by the fact that he prefers the newspaper of his party to the newspaper of his opponents. Nothing more indefensible was ever proposed. Having found out all these things, which it would take an ordinary Court days to investigate on proper evidence, the Minister has to pronounce a solemn judgment; or perhaps some would prefer to call it a farcical judgment. He has to order this partnership to supply , the news to the complainant, without having heard the defendant, at what he considers " reasonable rates." Then there is an addendum. Not merely is this power left to the Minister, but there is a restriction. He is not to be allowed free play even as to "reasonable rates." No rate is to be considered "reasonable" which substantially exceeds the cost of supplying such information to such newspaper proprietors;

Senator Styles - What is " substantially"?

Senator Sir JOSIAH SYMON - God knows ! The Minister, in the exercise of his judicial faculties, would have to decide what were reasonable rates. In asking that honorable senators shall again be allowed to apply their minds to this provision, is my honorable friend Senator Gould unreasonable? He is asking that we shall have an opportunity of freeing ourselves' from the imputation of doing what I will not call a foolish thing ; but from putting on the statute-book such a scandalous provision as this would be. I have incidentally expressed mv view upon the merits of the proposal. That view I hold very strongly. But I hold more strongly the view that I have expressed adverse to the method adopted. I cannot understand upon what hypothesis it issought to create a Minister - a -party politician - a Judge, without appeal, to decide matters of this kind. My honorable friend Senator Pearce is, I am sure, actuated by a desire to do that which he believes to be fair. Let us not only be fair, but true to ourselves, and to the ambition we' all have to put nothing on the statute-book which will not be honest and just.

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