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Wednesday, 22 August 1906


Senator STEWART (Queensland) . -In the debate on the second reading of the Bill, some doubt was expressed as to whether this clause would apply to a business carried on within the boundaries of one State, and the opiniongenerally expressed was that it would not. In order that the Bill may apply, wherever the business is carried on, I move -

That the words " among the States," lines 5 and 6, be left out.

Senator Sir JOSIAHSYMON (South Australia) [2.36]. - I wish to call attention to an amendment which I think ought to be made in an earlier line of the clause. Perhaps my honorable friend will do me the favour of temporarily withdrawing his amendment.

Amendment, by leave, withdrawn.

Senator Sir JOSIAHSYMON (South Australia) [2.37]. - This is the. provision which is directed at restraint of' trade in two forms. It penalizes any "person," which word, of course, includes a corporation or firm, " who, either as principal or agent, makes or enters into any contract." Rightly or wrongly the clause is intended to prohibit the making of, or entering into, a contract, but then it goes on to say - or is or continues to be a member of or engages in any combination, in relation totrade or commerce in other countries or among the States.

I do not suppose it is intended that the measure, whatever its operation might be, should be retrospective. It would, I think, obviously be extremely unjust if existing contracts were put in peril, or if persons who were concerned in contracts, which an informer might suggest were a violation of the law, should be put in jeopardy of being prosecuted and fined. From what I have heard, I do not think that the intention of the Government is that the law should be retrospective in that way - that it should, so to speak, cut existing covenants, or do serious injury to persons who happened to be members of associations which might be charged as combinations. The measure will be a very drastic weapon, and if it be placed in the power of private individuals or firms, or corporations, who might wish to raise difficulties in the way of a rival's, trade to make use of it for their own purposes, it would be possible for, say, the proprietor of the Sunshine Harvester to set the law in motion against his rivals in a way of which wei might not approve. When I was speaking on the second reading, Senator Trenwith interjected that he had conferred with the Government, or with the Attorney-General, and had been assured that the Bill was not meant to be retrospective, arid that it would not be. But if the. words ''or is or continues to be a member of " be retained, I think it would necessarily be construed to be retrospective as to combinations already entered into. We might have a combination which was beneficent, or we might have a combination which was vicious, and which every one of us would seek to crush. The Minister of Defence said, quite candidly, that he could not name any combinations that were in existence; he believed that there were combinations in Australia, but that they were not bad or vicious. If there are any combinations in existence - and I do not know of any - we have not heard of them as being vicious or bad within the meaning of paragraphs a and b of this clause. A combination is really a contract or arrangement such as is indicated in clause 3. It might be called a partnership. Therefore, the word " combination " ought to be put in the same position as the correlative word "contract " in the same line, which is not made retrospective. But, because " combination ' ' is used instead of " contract " or "arrangement" or "cooperation" or "partnership," it is sought to make the Act retrospective, ,and to make a partnership in such a combination penal.

Of course, it may be said that there would be no harm in that if the persons who were mixed up in the combination were not affected with intent to restrain trade or commerce. But the point is that we might have this instrument used improperly to disorganize existing trades and to injure the workers employed in existing businesses. The provision is to relate to Inter-State trade and commerce only. It might be used to injure a rival in regard to existing combinations with the result that his business might be paralyzed, and everybody might suffer. Whilst he was put on trial in order to determine whether he was filled with that intent or not, what would be the state of his business and of his workmen? His business would be paralyzed, and his workmen, if not thrown out of employment, would be in a state more or less of suspended employment. One manufacturer or trader in Australia might be brought under the clause if at present he has made an arrangement with one or more firms or individuals to regulate, it might be, prices without injuring the public. I appeal to honorable senators to consider what might be the consequences of putting this weapon into the hands of a rival trader. I do not wish to whittle down the clause in the slightest degree in regard to anybody who hereafter might enter into a combination or arrangement or co-operation because he would be acquainted with the law, and must take his chance. But I contend that it ought not to be applied to those who are engaged at present in a combination or partnership or an association of different firms. Such men should not be put on trial in respect of anything which was not an offence when the arrangement was entered into. It is a new offence, so far as we are concerned. There is not one of us who would desire to make any citizen of Australia liable to be punished in respect to an offence that is now created, but which was not an offence at the time he entered into the arrangement. I move -

That the words "or is or continues to be a member of," lines 2 and 3, be left out.







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