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Wednesday, 22 August 1906


Senator DRAKE (Queensland) . - The meaning of " combination " is not quite clear. The word is not denned. " Commercial Trust " is defined, but " combination " is not. This is the first operative clause in which the word " combination " appears. If we are not quite clear about the meaning of a word in a Bill it is always a good principle to strike it out. The more ambiguous are the words used in an Act of Parliament the greater the trouble afterwards. There is no reference to combination " in the Sherman Act. The word appears to me to be unnecessary. If the meaning of the clause is that persons who enter into a particular kind of contract should come within this particular clause the word is not needed. The clause reads -

Any person who either as principal or agent makes or enters into any contract .

That is complete in itself. A person who entered into this particular kind of agreement with a certain intent, would be guilty of an offence j and there is no necessity for dragging in the reference to a combination. All that is necessary is to insert the words " or remains a party to the contract."


Senator Pearce - The very first section of the Sherman Act contains the word " combination."


Senator DRAKE - That is so. But honorable senators will see that there is no necessity for the reference to a combination, because the offence is complete if a person enters into a contract with intent. As I read the clause, a combination means a combination between tire persons who enter into the contract, and a person who afterwards entered into a contract with intent would be guilty of an offence. Senator Keating said that we have to contemplate the making of a contract afterwards : and that is quite true. But sub-clause 2 provides that any contract entered into in contravention of the clause will be absolutely illegal and void ; so that provision is made for contracts entered into after the passing of the Bill. I do not see the use of the words in regard to combinations, unless the Minister is going to contend that a combination is something which goes fur- ther than a contract between persons to do certain things. I should be glad to be shown the difference between a combination and the entering into a contract.

Senator Sir JOSIAHSYMON (South Australia) [4.15]. - The discussion has, in the hands of some honorable senators, drifted a little wide of the amendment before the Committee. But I do not think the time has been mis-spent ; on the contrary, this being a penal enactment, both Senator Keating and Senator Best have pointed out that such an enactment is construed most favorably to the defendant. I originally moved to strike out " or .is or continues to be a member " ; and then the Minister of Defence pointed out that the intention of the Government was not to penalize persons who happened to be engaged in a combination - assuming the word to have the meaning ascribed to it by the Minister - at the moment the Bill was passed, but to penalize those who remained or continued to be members. Senator Keating adopts the same view, that the clause is to meet the case of those who remain in existing combinations, or who join combinations subsequently organized. Wilh that view I agree ; but when the Minister of Defence pointed out what was the desire of the Government, I thought I made it perfectly clear that I recognised the force of the distinction. In order that honorable senators might have the view of the Minister clearly before them, I temporarily divided the amendment, but did not abandon or qualify the position I took up, that the whole of the words ought to be eliminated as unnecessary. I thought the Minister would have consented to the elimination of "or is," and then have relied on what I admit was a fair argument, not wanting in force, that we ought to reach those who remain or continue in combinations previously established. Senator Best advanced the very sound reason, from the prudential stand-point, that nobody will.be likely to suffer, seeing that prosecutions will not be initiated without the consent of the Attorney-General. I am not going to discuss that provision now, but merely to deal with the particular argument offered to the Committee. One of my strongest objections to the Bill is, however, that it imports political considerations and political influences, which are distinctly disadvantageous in a measure affecting trade and commerce. I would rather leave it to the unrestricted action of those who might wish to protect the public or themselves, or any particular trade or industry, than I would put it in the power of an Attorney-General of one particular political complexion to direct f prosecution, or of an Attorney-General of another political complexion to refuse one. The less we bring proceedings of whatever kind within the scope of political influences and considerations the better. This is. not like the case of a magistrate who listens to evidence, and decides that there is a prima facie case ; a prosecution will be ordered on the mere ipsi dixit of the Minister of the da)s and we cannot disguise from ourselves the influences and considerations that may be brought to bear. While I frankly admit the force of what has been said, that does not affect the question whether or not we are to make this clause applicable to a person who is presumably .an "innocent member of a combination that was perfectly fair up to the passing of the Bill. As Senator Drake pointed out, we have a precedent in the Sherman Act, which uses words that are perfectly clear and sufficient. I am not certain that the words "rr engages in a combination " are not sufficient to deal with existing combinations which are subsequently continued. A person who " engages " in trade is not one who merely enters into trade ; he may have been in trade before the expression is used regarding him, and he continues in trade if he engages in it. I am afraid that, in the desire to extend the net widely, and to bring everything within the scope of the enactments, a great many unnecessary words have been used. It is laudable to insure that no leakages shall occur, but I know from experience that when' unnecessary words are used, particularly in a penal enactment, the object in view is very often defeated. The Sherman Act. on which this Bill is founded, provides that - . . every contract, combination, in form of a trust or otherwise - showing what is aimed at - or conspiracy -

That is what it amounts to - conspiracy with, intent to injure or restrain trade, which is punishable at common law - in restraint of trade or commerce to be illegal ; every party thereto, guilty of a misdemeanour.

What could be more clear? In the clause under discussion more words have been used, without imparting any additional force. The Sherman Act goes on - or engaged in any such combination or conspiracy, shall be deemed a misdemeanour.

That is all. In the Bill, however, we interpose the words " or is or continues to be a member of," which I regard as unnecessary, and likely to lead to confusion. The intention is good, but the effect of these words may be to make. the Bill less workable than we should desire in crushing out mischievous monopolies. Lawyers have been taunted by Senator Playford with "weaving a web " ; but it is the language used in the Bill that is the web. I merely wish to call attention to the fact that in temporarily withdrawing the amendment I do not recede for one moment from the objections which I expressed. I give the Minister of Defence credit for advancing arguments which are seriously worthy of consideration as to the second part of the provision; but as to the first part, honorable senators are asked to do something which I think they ' would not ordinarily be disposed to do. I agree with Senator Best, who has put his point of view very clearly, that the words may possibly relate to subsequent combinations ; but that is not the intention. The word " engages ' ' is intended to cover subsequent combinations, andalso as I think, the continuance of combinations. Why should we not adhere to the Sherman Act,' and thus get the benefit of the great mass of decisions on1 the law in the United States? I trust that the Committee will eliminate " or is," or, if not, that the Minister will consent to substitute " and " for "or."







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