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Thursday, 30 August 1906


Senator KEATING (Tasmania) (Honorary Minister) . - The amendment now submitted would not put to the test the principle that Senator Drake thinks that honorable senators would be voting upon at all. I listened with a great deal of interest - and I may say, without any disrespect to him, with a great deal of patience - to the honorable senator when I heard him denning the meaning of this clause. Of course, f quite recognise that he, or any other honorable senator, may saythat the Bill is so complicated that it is surrounded with a great deal of difficulty. But I would point out that, although the honorable senator was right, as far as he went, unfortunately he did not go far enough in considering the effect of the clause. The opening words of the clause are, " for the purpose of this part of the Act." We have, therefore, to deal with the whole of the clauses coming under Part III., "Prevention of Dumping." But my honorable friend, Senator Drake, so far as he went, confined himself to the consideration of clause 18 alone. He pointed out that it is provided in sub-clause 2, paragraphs a, b, c, and d, that, in certain cases specified, unfair competition is to be assumed unless the contrary is proved. He pointed out also that in paragraphs a and b of sub-clause 1, we prescribe what shall be deemed to be unfair competition, without any reference to " unless it is proved to the contrary." I point out to the honorable senator that what we are providing in clause 18, sub-clause 1, is more in the nature of a definition of unfair competition. What we are providing in clause 18, subclause 2. however, is a series of circumstances from which it may in evidence be presumed that the competition is unfair. " unless the contrary is Droved." Some reference has been made during the debate to clauses 19 and 20. Honorable senators will observe that in clause 19 it is proposed to give power to the ComptrollerGeneral to take certain action, after a complaint has been made to him in writing. The Comptroller-General mav send in a certificate to the Minister stating, in regard to certain goods - the ' particular imported goods which unfairly compete. After the certificate has been forwarded to the Minister, he might or might not remit the matter for the determination of a Justice. If it were remitted, the Justice would investigate the question of whether the goods were being imported with the intent alleged. It will be seen, therefore, that there are two stages. First of all, before a man could come under the operation of this part of the measure, it would be necessary for the Comptroller-General to consider the business conduct which was likely to be investigated, and to come to the conclusion that the importer was guilty of unfair competition. Having come to that conclusion, he would have to send on his certificate, but that would not conclude the matter. On the receipt of the certificate, the Minister might or might not remit the matter to a Justice, but if he did, the Justice would be charged with determining whether the importer was importing goods with the intention of destroying an Australian industry by means of unfair competition.


Senator Drake - How would that intention be proved?


Senator KEATING - I do not intend to deal with that question at this stage. From this explanation of the procedure to lie adopted, it will be seen that, in the discharge of his functions, the ComptrollerGeneral would have to consider whether, in his opinion, unfair competition existed. And when he had determined that point, if the matter did get to the Justice ultimately, the latter would also have to determine whether unfair competition existed, because he would have to decide whether the importer was importing with the intent alleged. What is " unfair competition " is a question which would naturally suggest itself to the mind of the Comptroller-General in the first instance, and to the Justice in the second instance. If one or the other turned to the Bill, he would find that it had been laid down distinctly that competition should be deemed to be unfair if -

(a)   under ordinary circumstances of trade it would probably lead to the Australian goods being no longer produced or being withdrawn from the marketor being sold at a loss unless produced at an inadequate remuneration for labour.

That is one definition, and if the circumstances were such as to warrant the ComptrollerGeneral coming to that conclusion, he could honestly and bona fide issue his certificate. If later on the Justice also found that the circumstances came within that definition, he would have to come to the conclusion that unfair competition existed. The other definition which Senator Drake, or, rather, Senator Pulsford, frequently Quoted, as if the words were highly inappropriate, reads -

(b)   the means adopted by the person importing or selling the imported goods are, in the opinion of the ComptrollerGeneral or a Justice as the case may be, unfair in the circumstances.

The words of that paragraph, on which Senator Pulsford did not seem to lay very great stress, were, "as the case may be," and " in the circumstances." First of all, it is provided in paragraph a that if the result of the competition were such that under ordinary circumstances of trade there would be that undesirable displacement, that would be unfair competition. But to guard against the possibility of their being some other unfair competition, the exact nature of which we cannot foresee, we provide in paragraph b, in general terms, that if the means adopted by the person importing or selling the imported goods are, in the opinion of the Comptroller-General, unfair in the circumstances, it should be deemed unfair competition. There may be means of competition which have never yet been resorted to either in Australia, or even in any other country in which industrial competition has been most strenuous. There may be means of competition which have yet to be devised, and we want the Bill to meet such cases.


Senator Pearce - Why should the words " unless the contrary is proved," appear in sub-clause 2 and not in sub-clause 1 ?


Senator KEATING - Because in subclause 1 they would be surplusage.


Senator Drake - Oh, no.


Senator KEATING - Sub-clause 1 is more in the nature of a definition.


Senator Drake - I cannot see any difference.


Senator KEATING - In the paragraphs of sub-clause 2 we set out a series of circumstances from which a presumption may be drawn, but paragraphs a and b of subclause 1 are more in the nature of a definition of unfair competition. For instance, if a State Parliament were to enact in a Criminal Code Bill that burglary shall be committed by any person who feloniously enters a dwelling-house by breaking in between sundown and sunrise there would be a definition so far as it went, but if it were to put in the words" unless the contrary is proved " it would be surplusage.


Senator Pearce - Does not that remark apply to paragraphs c and d of sub-clause 2?


Senator KEATING - No.


Senator Pearce - Surely they are definitions ?


Senator KEATING - No. Paragraphs a and b of sub-clause 1 purport to be definitions of what is unfair competition, but when we define what shall constitute an of- fence we do not need to use the words " unless the contrary is proved." The use of that phrase would be surplusage in that connexion. Perhaps honorable senators would have seen the force of my contention better if clause 18 had been divided into two clauses. They would have seen then that sub-clause 1 is purely a definition of what is unfair competition.


Senator Millen - What is sub-clause 2 ?


Senator KEATING - That is not a definition, but deals with proof. So far as procedure and evidence are concerned, it sets out what may be inferred from a certain set of circumstances, or what is called in law a rebuttable presumption. I can understand that the appearance of the two sub-clauses in the one clause is likely to suggest to the minds of honorable senators that the clause is dealing entirely with one thing, But sub-clause 1, I submit, is a definition, and the four paragraphs of sub-clause 2 are merely directions or indications to the Court as to what it may presume under certain circumstances, at the same time prescribing that the presumptions which it may make shall be what are known in law as rebuttable presumptions. For the purposes of this part of the measure, we must have a definition of what is unfair competition, and if we insert in sub-clause 1 the words " unless the contrary is proved " we shall insert words which are absolutely unnecessary, and which never appear in a definition.


Senator Pearce - Surely they are equally unnecessary in sub-clause 2.

Senator KEATING.I have just pointed out that the paragraphs of that subclause are not definitions, but provisions as to evidence.


Senator Pearce - With all due deference to the Minister, I think that paragraphs c and d are. Surely paragraph c is.


Senator KEATING - No.


Senator Millen - It defines the circumstances but not the thing.


Senator KEATING - It sets out the set of circumstances, from which it may be presumed, unless the contrary is proved, that the competition is unfair.


Senator Millen - It defines the circumstances, but it is not a definition.


Senator KEATING - Under paragraphs a and b of sub-clause 1 it would be necessary for theJustice to be satisfied that the circumstances came within those paragraphs before he could find that the defendant had been guilty of unfair competition.







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