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Thursday, 30 August 1906

Senator BEST (Victoria) .- I must confess that I do not agree with the interpretation placed upon this clause by either Senators Drake or Keating. We have to imagine the offence with which the defendant is charged. The offence is that he did, with intent to destroy or injure an Australian industry, dispose of or sell certain goods within the Commonwealth in unfair competition.

Senator Drake - We are dealing with unfair competition.

Senator BEST - Of course we are, and that is the charge ; and if paragraphs a and b of clause 18 are a definition of unfair competition, as stated by Senator Keating, then the defendant has the right to rebut them. Moreover, the Justice has to decide whether the imported goods are being imported' with the intent alleged. In Order to enable him to' ascertain whether the goods were imported with the intent to destroy an Australian industry, and by means of unfair competition, he must hear both the plaintiff and the defendant. He must necessarily do so before he can come to a decision!. It is stated in sub-clause 1 that, for the purposes of this part of the Act, competition shall be deemed to be Unfair if - under ordinary circumstances of trade it would probably lead to the Australian goods being no longer produced, or being withdrawn from the market, or being sold at a loss, unless produced at an inadequate remuneration for labour.

That very question is involved in the charge. It cannot be suggested for a moment that the plaintiff has simply to make an allegation that the goods are imported and are being sold in unfair competition in order to secure a conviction. The prosecution must bring before the Court the necessary evidence to support the charge.

Senator Millen - The honorable and learned senator is not now arguing against the insertion of the words " unless the contrary is proved " in sub-clause 1.

Senator BEST - I am not. As a matter of fact, I do not think it makes any difference whether they are inserted or not. I confess that I find it difficult to. under.stand why they should appear in one subclause and not in the other. According to my interpretation, I contend that in any circumstances the defendant would be at liberty to say, " I did not introduce these goods with the intention to destroy the Australian industry by unfair competition, and the effect of their introduction would not be to do so." I say that necessarily the defendant will have the right to rebut the suggestions of paragraphs a and b of sub-clause 1. The objection to the paragraphs would not be so serious for the purpose of prima facie evidence so far as the Comptroller-General is concerned, but when the case goes before the Justice the matter is different.

Senator Drake - The honorable senator admits that the rules of evidence will apply to the trial in 'Court.

Senator BEST - Undoubtedly; but subject to the good conscience provision.

Senator Drake - I understood the honorable and learned senator to state before that it was only a preliminary affair.

Senator BEST - I was referring to the preliminary examination bv the ComptrollerGeneral for the purpose of his certificate. I admit that it will be the duty of the Comptroller-General to summon the importer, and say to him, " This charge is made against you. It appears to me that the effect of the. introduction of these goods will be the destruction of the Australian industry by unfair competition.'.' But then, when the case goes on to the Justice, I say that the defendant must have the opportunity, without doubt, to tender evidence to show that the introduction of the goods and his competition will not destroy the Australian industry. There are questions of fact which the Justice has to find. He may have to determine the question - whether the importation of the goods should be prohibited either absolutely or subject .to any specified conditions or restrictions or limitations.

The defendant has the right to bring forward whatever evidence he pleases to show that he should not have imposed upon him any restrictions or limitations. If he is at liberty to submit evidence to that effect, it will necessarily be in the direction of disproving the matters contained in paragraphs a and b of sub-clause 1, if such evidence is available.

Senator Mulcahy - I ask the honorable and learned senator to look at paragraph c of sub-clause 2. and say whether he cannot conceive a case in which the purchaser of a large quantity of goods abroad may import them with a perfectly innocent intention, although their importation may, under clause 19, be held to injure an Australian industry. Could the honorable and learned senator agree to such a man being punished and found guilty of an intention which he did not have?

Senator BEST - It is quite consistent with the bona fide carrying on of trade for an importer to import goods in the way described.

Senator Mulcahy - Could he, as the Bill is worded, be punished under it for an intention he did not have, and merely because his importations might temporarily injure some Australian industry?

Senator BEST - The Justice cannot know what is in the importer's mind ; but if he finds as a fact that the importation would, in the ordinary circumstances of trade, probably lead to the Australian goods being no longer produced or being withdrawn from the market-

Senator Mulcahy - He would be deemed to be guilty of the intent.

Senator BEST - No doubt, if the Justice found as a matter of fact, from all the circumstances, that that was the intent, he could be punished; but it is quite clear to me that the Justice would hear evidence from the defendant to rebut the presumption in paragraphs a and b of sub-clause 1.

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