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Tuesday, 28 August 1906

Senator KEATING - I am coming to that point. Senator Drake disputes the correctness of honorable senators who have preceded him in referring to paragraph b of clause 4 and paragraph b of clause 5. But this clause can have no effect, I submit, unless it is read in connexion with paragraph b of the two preceding clauses.

Senator Drake - They only state what the man will be charged with. I wanted to know why he should be placed in a different category from an ordinary individual, and it is no answer to me to say that he may be charged with those matters.

Senator KEATING - If my honorable friend will permit me, I shall read the portion of clause 4 to which clause 6 has relation. Clause 4 says -

r.   An}' person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination, in relation to trade or commerce with ' other countries or among the States -

(i)   with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.

Senator Millen - That cannot have been proved at the time when clause 6 will be put into operation.

Senator KEATING - I think it can. Suppose, for instance, that under paragraph b of clause 4, a certain person - who may be a commercial trust - were charged with having contracted or combined with intent to destroy or injure by means of unfair competition any Australian industry, the preservation of which was advantageous to' the Commonwealth. Before paragraph a of clause 6 could operate, it would be necessary to prove, first, the existence of a combination ; secondly, that it was a combination of a particular character coming within the definition of a commercial trust; and, thirdly, competition.

Senator Clemons - Why?

Senator KEATING - Because the whole question would be unfair competition.

Senator Best - The first thing which it would be necessary to prove would be the intent.

Senator KEATING - Under paragraph b of clause 4 it would be necessary to prove that the combination or contractor intended to destroy or injure an industry, the industry which it was intended to be destroyed or injured, and the worth of preserving the industry, having regard to all the circumstances.

Senator Drake - Yes; but the onus of proof is changed. "

Senator KEATING - Yes ; and if my honorable friend had confined himself to that, I would not have said that he had misread the clause. Necessarily, it has to be read in conjunction with paragraph b of clause 4 or clause 5, because its opening words are " for the purposes of the last two preceding sections." When the authorities were proceeding against some person for the offence created in clause 4 or clause 5, it would not be sufficient to simply bring them before the Court, and say "this is a commercial trust."

Senator Drake - I did not say that.

Senator KEATING - One honorable senator said that all that the prosecution would have to say would be " This is a commercial trust," and the matter would be done with.

Senator Millen - Only figuratively, because every one is aware that the case will have to be proved in Court.

Senator KEATING - Senator Drake said that we had not to regard the preceding clause at all. The burden of his argument was that it would be necessary to prove the existence of the commercial trust, and that immediately the whole onus of disproving the offence would fall on that body. That is not so, I submit. The Bill makes it necessary that other things should be proved, namely, the intent to injure or destroy an Australian industry, and the fact that it is one which was worth preserving. The question arises whether they are going to do it by unfair competition or bv legitimate competition? If it were a case of a private individual, it would be necessary to prove affirmatively that the competition was unfair. And if it were a trust, as Senator Clemons says, the onus would be thrown upon the trust of disprov ing that it was unfair. I submit that there is that difference, and I agree with what Senator Clemons and others have said, that it is quite possible that there may be in existence trusts which are beneficent, but the balance of public advantage requires that in such cases the onus of proof of innocence shall be put upon the defendant. We have to adopt that course in many instances. The reference which has been made to trade unions reminds me that some of the most learned Judges in the United Kingdom have ruled that a single individual may do a certain act, but that if a number of individuals do that act at the same time, and under circumstances that suggested concert, in every instance all those individuals would be liable. Suppose, for example, that a single individual refrains from attending his ordinary employment. His employer might have no cause of .complaint against him, and might be able to get even with him by stopping his wages. But suppose that ten or 100 men stopped away. Do not honorable senators know that if those persons were proceeded against in a Court, the onus of proof would not remain under those circumstances in exactly the same position as it would if one individual were proceeded against - and that without any statute law? Here we have to deal with a combination which is formed for either a legitimate or an illegitimate purpose, using the words, " illegitimate purpose " to cover unfair competition calculated to destroy an Australian industry. If the combination was formed for a perfectly legitimate and bona fide purpose, it would have the means of proving that. If, on the other hand, it was formed not primarily for the purpose of destroying an industry, but, having been formed, and recognising its powers in that direction, it decided to do that, the onus of proof would not be left to the prosecution. If the intent be present, it will be assumed that it was going to effect that destruction by means of unfair competition. I do not think it is a very great burden of proof to put upon a combination of that character. ' As Senator Drake said, such a definition of " commercial trust " is quite consistent with a combination which is formed for a perfectly innocent purpose, but the balance of public advantage, I repeat, requires that in those cases the combinations, which would have the means of proving their innocence, should be called upon to disprove the unfair competition. When the prosecution has submitted all the other essentials of the charge, I think it is not calling upon, defendant to do very much. For those very reasons we differentiate thecase of the trust from that of the individual.

Senator Clemons - For what reasons?

Senator KEATING - For the reasons I gave just now.

Senator Drake - The Minister does not say that the onus of proof is changed in the case of trade unionists.

Senator KEATING - No; I said that the onus of proof did not lie where it would in the case of a single individual. It is quite sufficient to raise a presumption in the mind of the Court that it was concerted action in the way of a conspiracy. I submit that we are not imposing any hardship upon a combination which is formed for a " legitimate and honest purpose," using that phrase in relation to what we deem an offence under the Bill.

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