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Wednesday, 22 August 1906


Senator DE LARGIE (Western Australia) . - If I thought for a moment that there was the possibility of such a danger as Senator Symon has pointed out, I certainly should support his proposal. But I cannot imagine any Government being so unreasonable as to proceed against a combination which was in existence on the day when the measure was assented to. If the Government were to dare to strain an Act of Parliament in that way, the people would be up in arms at once. Moreover, the consent of the AttorneyGeneral would have to be obtained before any action could be" taken. We know that there are in existence certain agreements which should be brought to an end as soon as possible.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. Gould. - What are they ?


Senator DE LARGIE - In my speech last night I mentioned the case of the shipping ring. Before the Navigation Commission, members of the Chambers of Commerce in the principal cities of Australia declared that the enforcement of the rebate system by that ring was equivalent to holding a pistol at their head, and that it acted so unfairly that they were obliged to do things which they did not desire to do. We wish to put an end to any agreement of that sort. The evidence of the witnesses to whom I have referred ought to carry some weight with honorable senators, because they have suffered from the existence of the agreement. Some merchants declared that the rebates had been retained for a period of two years and a half, and that at the end of that time they were not forthcoming. If I thought that, immediately the Bill was assented to, there was likely to be a proceeding taken against the shipping ring, although it is acting in a very unfair manner, I should still support the proposal of Senator Symon. But I 'do not believe that any Government would be so unreasonable as to take an unfair advantage of any one who happened to be in that position.


Senator Lt Col NEILD (NEW SOUTH WALES) -Col. GOULD(New South Wales) [3.42]. - My vote will always be given against retrospective legislation of the character which has been indicated by honorable senators. It may be that there are in existence certain combinations with intent to injure the public; but the mere fact that a man was a member of such a combination not illegal when the Bill was assented to should render him liable to a prosecution upon its passage is entirely contrary to the principles on which the Legislature generally acts. Wherever it is intended to create a criminal offence, we ought to be very careful to see that the legislation Cannot be regarded as retrospective in its operation. I share the view of Senator Symon as to the effect of the wording of the clause. It is perfectly true that, before a prosecution could be initiated, the sanction of the Attorney-General must be obtained. But are honorable senators going to place the Attorney-General, or any other Minister, in the position of an arbiter, with the right to say whether the law should be put in motion or not? Suppose a man were guilty of an offence. Is the Attorney-General to say. " Well, although the man has been guilty, I shall not permit a prosecution " ? If he were placed in that position he would be prac tically above the law. When representations were made to the Attorney-General, it would be his duty to ascertain whether a prima facie case had been made out", and, if so, not to take it upon himself to say whether punishment should be meted out, but to say that the Court should determine his guilt and what punishment should be awarded. We have been told that the Attorney-General would be unworthy of his position if he were to allow a prosecution to take place simply because, at the time of the passing of the Act, a man happened to be a member of a combination. The Bill, however, ' provides that the man shall be liable to a penalty not exceeding ^500, and the AttorneyGeneral could not take it upon himself to say whether it should be inflicted or not. But let us assume, for the sake of argument, that he could do so. In what position would he then be placed ? To one man he could say, "I am not going to prosecute you, " and to another, " I intend to prosecute you." Would it not open the door to corruption and political persecution? 'It is said that, if a man were a member of a combination the day before the Act came into operation, and had then got out, he would not be liable to the penalty. But is not the offence really the continuation of membership of a combination? If we use the phrase " any person who is, and continues," we should achieve the object which is, desired by the Minister. Otherwise, it would be left to the AttorneyGeneral to determine in each case what should l>e done. There is now before Parliament legislation, which is alleged to have been introduced simply because of the importunity and influence of a particular firm of manufacturers. The allegation may or may not be true, but still it is made. Our desire should be to prevent the possibility of imputations being cast upon the purity of Ministers. The Bill adopts certain official! means to convict people of intentions. We are abandoning an English principle that has always been supposed to be imbued m our very blood - the principle that no man is to be held to be guilty unless his guilt is proved. It has always been held to be better that twenty guilty persons should go free than that one innocent person should be convicted. But under this Bill the guilt of a person is to be inferred unless the contrary is proved. Then turn to the provision defining " Commercial Trust." It is very wide. It is intended to be wide. I do not suppose that it is as wide as some people imagine it to be, but still it may be effective against combinations that are managed by a board of directors possessing somewhat extensive powers. I do not say that the clause would extend to such a body, but it is arguable that it might. It is to be assumed against persons who belong to a commercial trust that, because of their membership, their competition is unfair. It is a monstrous proposal, and one that is absolutely wrong. I say also that a Bill containing such a provision as that relating to the disorganization of industries penalizes honest men. I have no sympathy with the dishonest man who deliberately sets to work to injure the public. But I do say that we should be exceedingly careful in our legislation not to do anything which will penalize a main for a perfectly legitimate act. We should remember that we are dealing with novel legislation, embodying new ideas. We are constantly interfering with commerce. We are putting it in handcuffs and chains. A mercantile man can hardly move in any .direction without being confronted with some legislation affecting his business. There are honorable senators who condemn this Bill, but who nevertheless voted for its second reading.


Senator McGregor - We are not dealing with the second reading now.


Senator Lt Col GOULD .- I do not blame the honorable senator, because he is a supporter of the Bill. He is entitled to his own opinion. But I do blame those who have strongly condemned the Bill and yet supported it by their votes. If the Minister in charge of the measure is not prepared to accept the amendment moved by Senator Symon to strike out the words "or is," he might accept an amendment making the word " or," where it appears for the second time, read "and" so that the clause would read -

Any person who ... is and continues to be a member of or engages in any combination.-

Senator O'Keefehas told us that he reads the clause as meaning what I have just read. But, after all, we must bear in mind that the words are capable of a different construction. I think that if my suggestion is accepted the object which the Government has in view will be met, and the Bill will carry out its purpose, whilst at the same time it will not punish a man because he may happen to be in a combination at one moment, though he may get out of it the next. The Minister will not be injuring the Bill by accepting the amendment, but he will get over a difficulty that may become a real live subject of trouble in the future.







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