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Thursday, 30 August 1906

Senator DRAKE (Queensland) . - I desire to omit from paragraph a of subclause 5 the following words - and if so, whether the importation of the goods should be prohibited either absolutely or subject to any specified conditions or restrictions or limitations.

But as Senator Pearce has informed me that he wishes to move an amendment after the word " goods," I only move now -

That the words " and if so whether the importation of the goods," in paragraph a, subclause 5, be left out.

I propose to omit the words I quoted, on the ground that it would not be a proper matter for the Justice to decide. It, is quite right that' he should investigate and determine whether the goods were being imported with the intent alleged, and if he so decided, then the question as to any conditions or restrictions or limitations on the prohibition should be a matter for the Minister to settle. It is appropriate for the Justice to investigate and determine a question of mixed law and fact, as the question to be determined under the provision would be ; but it is not desirable that he should be called upon to go into small details such as would be involved in an inquiry which would enable him to specify the " conditions or restrictions or limitations" on the prohibition. I do not know exactly what is meant by the term - in fact the Bill contains a great many things of which I' do not know the exact meaning. But I presume that, if not entirely prohibited, the limited prohibition would be a prohibition, that the goods might come in and be disposed of under certain conditions - for instance, that they must not be sold below a certain price. If the Justice found that the goods were being brought in to be sold at a very low price with intent to injure an industry, he might say, " These goods will not be entirely prohibited. They" will be allowed to come in but must not be sold under a certain price " - Senator Playford, perhaps, may know whether that is the intention of the clause - or he might say, " The goods shall not be sold in a certain place," or that they should be sold under some other condition. I do not know whether any honorable senator has a clearer idea than I have of what is meant bv " conditions, restrictions, or limitations" on the prohibition ; but if there is, perhaps he may be able to help me in my ignorance of the meaning. The point I take is that any possible meaning which might be given to the phrase would involve an inquiry into a number of trade details, which would be quite out of place in a Court of Justice. I cannot imagine a Justice of the High Court being called upon to lay down the exact conditions, or restrictions, or limitations on a prohibition against goods, which he held to have been imported with a criminal intent. If power is to be given in the measure to any one to allow the goods to be brought in and made some use of, the person to determine the conditions under which they should be sold should be not the Justice, but the Minister, who, with the assistance of his officers, would know the destination of the goods, and the circumstances under which the importer had intended to sell them. If the evidence showed an intention to sell the goods at very much below cost price so as to injure existing industries, the Minister might, after making inquiries, say that the goods should not be sold under a certain price, or should not be sold in a certain place, or impose some restriction of that kind.

Sitting suspended from 12.5 to 12.30 a.m.

Senator DRAKE - I should like to hear an expression of opinion from the Minister with regard to the amendment. I trust that he will not suppose that I desire to delay the passage of the Bill, or to take up time unnecessarily. The amendment is of an important character, and I trust that every consideration will be given to it. The question as to whether the defendant is guilty of an offence under the Act is a proper one for judicial determination, but the decision as to the disposal of the goods should be left to the Minister. It might be considered desirable to send back the goods to the place from which they were exported, or it might be considered that no harm would be done to any Australian industry if they were disposed of within the Commonwealth under certain conditions. The determination of this question would involve the consideration of a number of details in connexion with business, which could best be dealt with by the Minister under the advice of his expert officers. Moreover, if the Justice were to be called upon to decide what should be done with the goods, the investigation in the :Court would be very much prolonged, and the expenses involved would be greatly increased.

Senator MILLEN(New South Wales) [1 2-351- - I must indorse the protest of Senator Drake against leaving to the decision of a Justice questions which, after all, are matters of public policy. Under our system of government, we are supposed to separate judicial from legislative and administrative functions, but under the clause it is proposed to call upon a Justice to determine matters which should be left to the judgment and decision of either the Legislature or the Executive. Although we have been very careful to enact that certain things shall not be done, we do not impose upon the Justice any obligation to inflict a penalty in the event of his finding that an offence has been committed. It seems to me to be farcical to declare that certain things shall not be done, and to then turn round and say that the Justice need not inflict penalties for offences against the law unless he feels so inclined. It is the duty "of Parliament to distinctly lay down the law, and to fix the penalties, and certainly the obligation is imposed upon us to retain within our own special keeping the determination of all matters of public policy.

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