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Wednesday, 22 August 1906


Senator Sir JOSIAH SYMON (South Australia) -45]- - Of course, there are objections, and I think strong ones, to Senator Stewart's amendment, just as I think that from the constitutional point of view there are very strong objections to clause 5. Senator Stewart said he could not believe that the Constitution was s'o very stupidly framed as to enlarge, by paragraph xx. of section 51, our legislative powers, so that we could prevent in a State a kind of commerce or arrangement which would' be in restraint of trade locally in regard to a trading corporation, and we could not do it in regard to a combination of individuals. That strikes one at once as a very extraordinary position. The Constitution does riot mean what Senator Best said. The Convention never intended anything of the kind. Paragraph xx. of section 51 has been grievously misunderstood. It is paragraph 1. alone which gives the Parliament power to deal with trade and commerce, and that power is limited to trade and commerce with other countries and among the .States. It does not give power to interfere with trade ,or commerce within the limits of a State. It was never intended that it should be given. Whatever legislation may have to be adopted' in regard to restraint of trade within the boundaries of a State, must emanate from the State Parliament alone. It has been said that paragraph xx. of section 51 enlarges the power contained in paragraph 1., so that where we have a trading or financial corporation or a foreign corporation, we can interfere with trade within the limits of a State. It does nothing of the kind. The only effect of paragraph xx. is to enable the Commonwealth Parliament to make uniform companies laws. It was introduced in order to enable this Parliament to pass companies laws which would be applicable throughout the States, and give a status to foreign corporations as well as to local trading and financial corporations. We could by the exercise of this power create these legal entities. Instead of persons, we have foreign corporations or local trading and financial companies. How are they to trade? The moment we deal with such bodies in that connexion we act under paragraph 1. of section 51, and we can only legislate with regard to their operations with other countries and among the States. That, I assert emphatically, is what the Convention intended, and what the Constitution says.


Senator de Largie - If the honorable and learned senator will refer to section 98 he will find an exception to that.


Senator Sir JOSIAH SYMON - That is because of the navigation laws, which must be uniform throughout the Empire. Trade and commerce are dealt with, in paragraph 1. of section 51. Then in section 98, with regard to two subjects, the provision of paragraph 1. of section 51 is extended - that is to say, with' regard to navigation and shipping, and also with regard to railways the property of any State. But the only power we have to deal with trade and commerce is in respect of trade and commerce among the States and with other countries. If that is what is relied upon to give us power to deal with corporations as we cannot deal with individuals, it will be found to be a broken reed. Obviously so; because, as Senator Stewart has indicated, and I affirm that he is right, this means that we should not be able to deal with individuals acting in restraint of trade within a State, but should be able to deal with a trading corporation. How grossly unfair that would be ! We must nave uniformity. Clause 4, dealing with trade and commerce within a State or outside the Commonwealth, applies to individuals, as well as to corporations and firms. So it should. If we wish to stop monopolies we should stop them, whoever cause them, whether individuals or corporations. But it is admitted that we cannot do that within a State, because paragraph xx. of section 51 of the Constitution only applies to foreign corporations and trading and financial corporations. All that they would have to do would be to say, " We will resolve our corporation into a combination of individuals, and then roll cannot stop us." The thing is ludicrous on the face of it- I should be ashamed of any construction of the Constitution which led to such a result as that. Senator Best, than, whom no one in the State of Victoria is better acquainted with companies law, knows that every State has its own companies laws, and fixes the status of foreign corporations within its limits. The

Constitution having said that that ought to be done by the Commonwealth, the only effect is to enable a foreign corporation to be registered as a Commonwealth corporation instead of as a State corporation ; and our only power of interfering with such corporations is that given to us by paragraph xx. of section 51.







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