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Tuesday, 28 August 1906

Senator MILLEN (New South Wales) . - I can hardly allow the occasion to pass without expressing my sense of pleasure that Senator Best is at last convinced that the Bill is open to improvement. With the amendment, and with the author of the amendment, so far as he intends it to go, I am entirely in agreement. But I ask whether the proposed new paragraph may not injuriously affect a class of cases with which, I am sure, Senator Best does not desire to interfere. During the debate on the second reading I referred to a contract which had just been entered into in one of the dairying districts of New South Wales, by which an individual had undertaken to establish a dairying factory conditionally on the dairyfarmers insuring him the whole of their trade for a given term. That could in no sense be regarded as an injurious undertaking; because it was the only possible way the dairy-farmers there had of getting a capitalist to establish a factory.

Senator Givens - Would the Bill apply to an industry localized in that way?

Senator MILLEN - The industry was not localized, because the agreement covered the export of the butter manufactured at the projected factory. I mention this case because I am quite certain no honorable senator would desire to bring an arrangement of so innocent and beneficial a character within the compass of this legislation. It appears to me, however, that there is a possibility of this class of cases being brought within the suggested new paragraph.

Senator Staniforth Smith - The proposed new paragraph is governed by clauses 4 and 5.

Senator MILLEN - Clauses 4 and 5 deal, of course, more particularly with restraint of trade.

Senator Staniforth Smith - And with intent.

Senator MILLEN - The first paragraph of clause 4 speaks of restraint of trade, and it has been held, where legislation of this kind has been attempted, that to tie a man so that he can only trade with one individual or firm is a restraint of trade. In paragraph a of clause 4 there is no reference to the possible injury of any other

Australian industry ; the only reference is to restraint of trade. I do not think there can be the slightest doubt that the class of cases I have cited could be shown, technically at least, to come within clause 4. Under the proposed new paragraph we are asked to go a little, further ; and I am entirely in favour of the spirit of the amendment so far as it applies to the injurious contracts or arrangements referred to. I do not propose at this stage to call for a division on the amendment, because, as I say, I am in favour of its general spirit, but I ask the Government, if they have not already done so, to obtain the advice of the Attorney-General as to whether,┬▒he class of cases I have mentioned - which, I am sure, the Government do not desire to interfere with - would be brought within the penal provisions of the clause. If that be so, I ask the Government, after consultation with the Attorney-General, to consider whether some addition cannot be made so as to exempt innocent and beneficial agreements of the kind.

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