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Wednesday, 22 August 1906


Senator McGREGOR (South Australia) . - I am much surprised to hear an honorable senator, who professes to be such an eminent authority on draftsmanship, acknowledge that he is wrong.


Senator Sir Josiah Symon - I have not acknowledged anything of the kind.


Senator McGREGOR - The very fact of the withdrawal of the original amendment shows that the honorable and learned senator is doubtful as to its advisability.


Senator Sir Josiah Symon - I am not in the slightest degree doubtful.


Senator McGREGOR - Let us see what the clause really means; and I ask honorable senators to look at the matter from both a lay and a legal point of view. Lawyers are apt to differ on questions of this kind under almost all circumstances; their legal training seems to make them argumentative, and it does not matter how complete the draftsmanship may be, they find some fault with it.


Senator Sir Josiah Symon - We are not dealing withdraftsmanship, but with a matter of substance.


Senator McGREGOR - The clause deals with any person who, as principal or agent, . does certain, acts; and there is nothing retrospective so far.


Senator Sir Josiah Symon - Nobody said there was.


Senator McGREGOR - Then the clause provides that any person commits an offence if he, as principal or agent, continues to be a member of a combination, for what purpose? With intent to injure the public, or to restrain trade to the disadvantage of any Australian industry. A person must enter into a combination with that object before he will be liable to a prosecution. So far as the objection to retrospective legislation is concerned, no proceedings can be taken for any act done up to the passing of the Bill, because, although a man might have been doing wrong, there was no law against his wrong-doing. But the framers and supporters of the Bill say that if, after the Bill is passed, a man is, or continues to be, a member of an injurious combination, then he shall be guilty of an offence. Why should it not be so? I hope honorable senators observe the difference between the two divisions of this clause. The first portion deals with, contracts, and that is not interfered with by the amendment. Originally, Senator Symon desired that all the words "or is, or continues to be," should be struck out; but, as I say, he found out that he was wrong.


Senator Sir Josiah Symon - I found nothing of the kind.


Senator MCGREGOR - The Minister of Defence, who is not supposed to know anything about law, opened the mind of Senator Symon, and made the latter acknowledge that he was going a little too far.


Senator Sir Josiah Symon - That statement is not correct.


Senator MCGREGOR - I think there are a good many honorable senators besides myself who think that the statement is correct.


Senator Sir Josiah Symon - It is usual for an honorable senator to accept a contradiction. I have said distinctly that I do not admit I was mistaken.


Senator McGREGOR - If I moved an amendment and thought it was right, I should stick to it; but, if otherwise, and I desired an alteration made, I should be man enough to acknowledge I was wrong. It might be months or years after the passing of the Bill before any action was taken ; and if the amendment were adopted there would be a nice job for the law Courts to decide whether any punishment could be inflicted on a person who had ceased to continue to be a member of an injurious combination. As soon as the Bill is passed any person committing the act contemplated ought to be deemed guilty; and the introduction of the measure ought to be sufficient warning to those who are now doing wrong. If coining were not an offence, and the public suddenly awoke to the fact that the practice was injurious, and introduced a law against it. would any one attempt to insert an amendment of this kind? We are not legislating against the innocent, but for the purpose of preventing any one, or any combination; committing a certain act with intent to injure the public. People may now be committing a wrong of the kind, and they certainly ought to be liable to punishment immediately the Bill becomes law; indeed, we should be failing in out duty if we legislated otherwise. Every honorable senator who has the interests of Australia at heart must agree that a man who is, or continues, to be, a member of such a combination after the passing of the Bill - indeed, that is implied in every instance - should be deemed guilty of an offence and liable to punishment.







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