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Wednesday, 29 August 1906


Senator KEATING (Tasmania) (Honorary Minister) . - I appreciate the way in which Senator Symon has approached the clause on this occasion. To a certain extent, the question that may arise under clause 8 is similar to that which was threshed out at great length on clause 5, and for that reason the honorable senator, while not altering the opinion which he then so forcibly expressed, refrained from speaking as to the constitutional power of this Parliament to deal with corporations to the fullest extent that has been claimed by us. I do not intend to deal with that matter, but to confine myself entirely to the argument which was used by the honorable senator in support of his objection to the clause. On a previous occasion he expressed his opinion on the constitutional point very emphatically, and other honorable senators, as he says, differed from him. So far as that is concerned I do not intend to refer to it. My honorable friend suggests that if the clause were carried it would lead to what might be considered an anomaly in our industrial life. ' For example, he suggests that a trading corporation carrying on business in a certain city and not operating outside the boundaries of the State in which it was situated would come under the penal provisions of the Bill ; while on the other side of the street there might be an individual trader or a partnership or a firm, not being a corporation, carrying on a similar business ; but the penal provisions of the Bill would not apply. I admit now frankly that that would be an anomalous state of affairs. But while I admit that such an anomaly might result from the passing of the clause, I do not think that we can thence necessarily argue that we are exercising powers which are not given to us by the Constitution. Let me assume that in the Bill we did not touch, corporations as such at all, but confined ourselves entirely to individuals, and made penal such a thing as combination in restraint of trade or combination for the purpose of destroying or injuring, by means of unfair competition., any Australian industry ? I leave out of consideration altogether the question of corporations and the power which we assume to exercise under paragraph xx. of section 51 of the Constitution. Of course^ our powers with regard to individuals are confined to Inter-State trade and commerce, or trade and commerce between the Commonwealth and outside countries. We might have on one side of a street in a city or town a man or a firm carrying on business the ambit of which was Inter-State, and by reason of the fact that he was carrying on Inter- State business, or his business was such that it brought him into trading and commercial relations with the outside world, he would come under the penal provisions of the Bill. On the opposite side of that street we might have a man conducting a business of a similar character, but which was confined wholly within the limits of the State. The Bill could not touch him. Would not that also be an anomaly ? Would any one argue, from the existence of such an admittedly possible anomaly, that we were going outside our powers?


Senator Sir Josiah Symon - There is no anomaly in that, because the one is limiting his trade to the State and the other is doing Inter-State trade. When we deal with Inter-Sate trade we deal equally and uniformly with all.


Senator KEATING - Quite so; but, still, it would be an anomaly.


Senator Dobson - The State could rectify that anomaly.


Senator Sir Josiah Symon - That is not an anomaly because the Minister is comparing two things which are altogether different. An anomaly exists here, because we are dealing with two things which are the same.


Senator KEATING - I will assume that in the Bill we made no provision in regard to companies as companies, that we dealt with only individuals, and that clauses 5 and 8 did not exist. We might have Jones and Company, on one side of a street and Brown and Company on the opposite ┬╗si de carrying on a similar class of business. The business ramifications of the former firm extend beyond the State, and, therefore, it would come under the operation of the mea-. sure, but Brown and Company, who do not operate beyond the limits of the State, would not. Whether that is an anomaly or not, in the sense suggested by. Senator Symon, is another thing.


Senator Sir Josiah Symon - They are both on the same footing as to their State trade.


Senator KEATING - Let me now compare that with the other anomaly which has been given as an illustration. On one side of a street we might have Jones and Company, who are carrying on business within the State only, and the Bill would not touch the firm. On the other side of the street we might have Brown and Company Proprietary Limited, carrying on a similar class of business. We say thatwe can touch that firm simply by reason of the fact that it is a trading or financial corporation formed within the limits of the Commonwealth, or, perhaps, a foreign corporation. That may be an anomaly ; I do not say that it is not.


Senator Trenwith - It is not a discrimination.


Senator KEATING - It is not a discrimination.


Senator Sir Josiah Symon - Yes, it is.


Senator KEATING - In the case of the other anomaly, it is a question of one firm carrying on Inter-State trade, and another firm carrying on trade within the State. I contend that neither anomaly argues that we are exceeding our powers in legislating in this way. But they both bring home forcibly to our mind the fact that we are working under a limited Constitution - that the complete political powers of the Australian people are distributed amongst two sets of legislative bodies - the Commonwealth Parliament on one side and the six States Parliaments on the other. In nearly every domain of legislation possible to us, we find that a limit lies somewhere. If we are going to exercise our legislative power up to the limits imposed upon us by the Constitution, there will remain beyond those limits, in many cases, a wide field for possible legislation in the States, and it will remain for the States if they desire to supplement or complement our legislation. In the case of the Commerce

Sill, the same class of objection was raised. It was said that we were endeavouring to make only certain people honest when we were proposing" to compel them, if they marked their goods at all, to mark them with a correct description so that the public should not be misled. It was objected then that we could deal with only imports and exports, and with InterState trade. We dealtwith the subject, knowing that, so far as trade within a State was concerned, the State Parliament might follow our example, or refrain from doing so. The same thing applies now. I do not think we ought to argue in any case that, because what seems to be an anomaly will result, we are necessarily taking a strained or crooked view of our powers under the Constitution.

What we must conclude is that we are simply exercising powers which are conferred upon us not in full and unlimited terms, but in a limited fashion.







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