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Tuesday, 28 August 1906


Senator MILLEN (New South Wales) . - If the utterances to which we have recently listened mean anything, they mean that the retention of the words under discussion is going to have a great deal to do with the proof of intent. We have heard something about the proper reading of clause 5. I ask honorable senators to allow me to alter the wording of that clause slightly, and to see whether we shall be warranted in allowing clause 6 to pass as it stands. In clause 6 it is proposed that the mere, fact of the defendant being a commercial trust is to be proof of unfair competition!. That being so, we can read paragraph b of clause 5 in this way : -

With intent to destroy or injure by being a commercial trust.

In clause 6 we say that " unfair competition " and "commercial trust" are interchangeable terms; that if the defendant is a commercial trust he is necessarily guilty of unfair competition. How is intent going to be proved ? If it is to be decided in any other way than by judging of the whole of the acts surrounding the conduct complained of, it can only be done by an assumption that no Court would justify. It would have to be decided upon the acts. What would be the act of the defendant in this case ? The very fact that he is a commercial trust, an importer entering into an agreement with a firm in England or America for the importation of goods, would bring him within the four corners of this Bill. There is no commercial man in

Australia who does business outside Australia who could not be brought within the measure. How would the Minister like to be brought under a law of this kind? Suppose he were charged with the worst crime that we know - that of murder. How would he like to be held to be guilty unless he proved his own innocence ?


Senator Playford - I think I could easily prove my innocence.


Senator MILLEN -What right have we to say that we will throw upon merchants the onus of proving their innocence in this manner ?


Senator Playford - Many civilized nations do it - theFrench, for instance.


Senator MILLEN - I have already pointed out that this is a principle adopted by certain continental countries, and that it is only of recent years that it has crept into our legislation. As I have said before, as an agreement in itself constitutes a trust under this Bill, it means that there is no one in Australia doing business with firms outside of Australia under agreement who would not be brought within the four corners of the measure. I go further, and say that, as clause 6 stands, we are going to make the act of being a commercial trust prima facie evidence of intent to destroy or injure an Australian industry. It is not a question of unfair competition at all. The mere fact of being a commercial trust in itself is sufficient to bring the defendant within the scope of the measure, and that is one of the things which the prosecution would rely upon for the purpose of showing intent.


Senator Best - Does the honorable senator say that if a commercial trust entered into an agreement that would be an offence ? I say that it would not.


Senator MILLEN - My honorable friend asks me whether the mere fact of having entered into an agreement would be an offence. I do not think that it would ; but I venture to say that if my honorable friend were prosecuting for the Crown he would point out that the fact that the defendant was a commercial trust was one of the things proving intent.


Senator Best - Oh, no. The intent would have to beproved.


Senator MILLEN - In every case that comes before a Criminal Court it has to be proved, and how is it proved, except by circumstantial evidence? It is true that in a few cases documents are obtained which partly establish the guilt of the accused.


Senator Best - It would be outrageous to say that a commercial trust could not enter into an agreement innocently. It would be held to be innocent until the intent was proved.


Senator MILLEN - The Bill says, in clause 6, that one of two things has to be proved. The prosecution can take its choice. It can prove that the defendant is a commercial trust, in which case the prosecution need not bother itself as to whether the competition is detrimental to Australian industry or not. Or it can prove that the competition is detrimental to Australian industry. In all probability the prosecution would take the line of least resistance. It might find considerable difficulty in demonstrating that the defendants knew that their competition was detrimental to Australian industry. The prosecution would, therefore, in all probability, rely upon proof that the defendant was a commercial trust. I venture to say that if Senator Best were engaged in a prosecution of this kind he would urge upon the Court that the mere fact that the defendant was a commercial trust, and that the history of trusts showed that they were injurious and were formed for the purpose of extortion from the people, was sufficient to justify the Court in upholding his contention that intent existed.


Senator Best - The Court would not listen to me. It would say, " You have to prove the intent."


Senator MILLEN - How would the honorable senator prove intent?


Senator Best - That is not involved at the present time.


Senator MILLEN - But it is. My honorable friend continually falls back upon that point.


Senator Best - Intent would be proved sometimes by correspondence, sometimes by previous misconduct, and in some cases circumstantial evidence would be relied upon.


Senator MILLEN - It would be all circumstantial evidence. If the trusts are as wicked as Senator Best makes them out to be, I decline to believe that they will be parties to elaborate documents, which, on the face of them, will prove that they are trusts which are likely to be detrimental to the public. They would not work in that way ; it would only be by their acts that the prosecution would be able to prove intent. I am afraid, however, that there is not much chance of amending this clause. I draw attention to the fact that whilst a great deal has been said against the argument for striking out the words in question. I have not heard a single argument in favour of retaining them.







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