Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 19 June 1906


Mr ISAACS (INDI, VICTORIA) - I have just explained that the Commonwealth has no power to deal with the trade of an individual, which trade is confined solely to a State; but if his trade extends1 beyond the limits of a State, it is dealt with by this Bill.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Only so far as his trade extends, I suppose?


Mr ISAACS - If he is doing InterState trade, of course, that is what we deal with. I should, like to put the case succinctly to the House at this stage, and I shall have much pleasure in going into further details in Committee if desired bv honorable members. Clause 4 deals with t,rade and commerce with other countries and among States, and it provides that -

Any person who wilfully either as principal or as agent, makes or enters into any contract or is a member of, or engages in any combination to do any act or thing in relation to trade or commerce with other countries, or among the States - in either of two matters - first - in restraint of trade or commerce to the detriment of the public, or secondly - with the design of destroying or injuring by means of unfair competition, any Australian industry, the preservation of which, in the opinion of the jury, is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, shall be guilty of an indictable offence.


Mr McCOLL (ECHUCA, VICTORIA) - Will the AttorneyGeneral explain what is meant by " to the detriment of the public"?


Mr ISAACS - There are several American Acts dealing with the question, but in the Sherman Act, which is the main Act, a provision is made that restraints of Inter-State or foreign commerce are criminal, and the Courts there have held that it does not matter whether the restraints! are beneficial to the' public - or are not prejudicial to the public - so long as they are restraints, they are hit by the Act. In American cases, to which I shall make a very short reference presently, that principle is laid down time after time. I personally, and the members of the Government, agree that there may be combinations whose work is useful and beneficial to the public.


Mr Deakin - At all events, not injurious.


Mr ISAACS - And certainly not injurious. We do not believe that that sort of work should be penalized. Therefore, as the American law, as explained by the Supreme Court and the Federal Courts of the United States, pushes the matter so far as to make no discrimination whatever between what is injurious and what is beneficial, we have inserted these words, "to the detriment of the public." Under the old British law monopolies which were detrimental to the public were hit at. That is all we wish to do. If there is a restraint of _trade which can be shown to be detrimental to the public, which is injurious to the public - and we cannot define the particular instances in which that detriment will occur or the injury will arise - then we say that the man who wilfully enters into such a contract or joins such a combination, shall be deemed a public malefactor.


Mr Lonsdale - Injury to what section of the public?


Mr Kelly - Who is to decide the injury ?


Mr ISAACS - Injury to the public is a very well-understood term.


Mr Lonsdale - What would injure one section of the public might benefit another.


Mr ISAACS - Injury to the public is a term well known to British law. The matter can be well worked out and it is impossible, I think, to make it more distinct. It will be left to a jury to determine upon lines of common sense. The jury who will be drawn from the public, will fully understand whether a certain thing is injurious to the public or not. If, as my honorable friends opposite put it, and I quite a.gree with them, this is a matter which ought to be looked at from the public stand-point, I know of no better tribunal than a jury to say what is injurious to the public and what is not.


Mr Kelly - A jury in one part of the Commonwealth will hold an opinion different to that of a jury in another.


Mr ISAACS - The honorable member might say that of every case that could be tried, and it is merely an argument to prove that no cases should be tried by juries at all. It could be said of Judges, and of any human beings whatever. It could be said that one Judge, or one individual, might take one view of a case on questions of fact and another might take an entirely different view.


Mr Kelly - A jury in one State might regard the interests of that State, for instance, as opposed to those of another State.


Mr ISAACS - Does the honorable member propose to allow trusts to run rampant ?


Mr Kelly - No one has said so.


Mr ISAACS - Then we must have human beings to adjudicate upon these cases. The honorable member will not have a Board, and if he will not have a Judge and jury, what will he have? I point out to my honorable friends opposite that they must decide whether they are going to support the repression of injurious monopolies, or to vote for maintaining them. If the honorable member for Wentworth votes, as I believe he will, to help us to repress injurious monopolies, he will have to consider - though I admit he may do so more appropriately in Committee - to what tribunal he will refer these matters.


Mr Wilks - Can the honorable and learned gentleman mention a single injurious monopoly operating in Australia at the present time?


Mr ISAACS - - May I be allowed to continue my explanation? Clause 5 relates to corporations. As I have pointed out already, we consider that a corporation which does these things with regard to any trade or commerce within the Commonwealth should be deemed to be guilty of an offence. I may point out before I go any further that the American decisions of importance commenced in about the year 1895. The Sherman Act was passed in 1890, and for some time it was a matter of great doubt as to how it applied, and how these great corporations could be attacked. The first important case was that of the United States v. Knight and* Co., the sugar trust case. In that case the American Sugar Refining Company, which was a New Jersey corporation, bought up the stock of some four Philadelphia corporations, and acquired practically the monopoly of manufacture. It came before the Supreme Court of the United States, and the Court absolved the trust. The Court said there was no breach of the Sherman Act, because it held that manufacture is not the same as commerce. Manufacture is not trade or commerce; that it is only the preparation of goods which are to be used in trade or commerce, and that the transaction aimed at bore no direct relation to Inter-State com- merce. It was thought for some considerable time - a year or two, at all events - that the trusts were triumphant, and that under the American Constitution the Congress of the United States was powerless to deal with them. Two other cases came on - one in 1897 and' the other in 1898 - the transportation rates cases, the United States v. Trans-Missouri Freight Association, 166 U.S. Reports, 290, and the United States v. Joint Traffic Association, i/.r, U.S. Reports, 505. As the decision in the second case followed that given in the first, I may state what was decided in the Trans-Missouri Freight Association case. The Court held that the restraint provisions of the Act did applyto contracts between competing carriers ; that there was no necessity to prove the purpose to restrain, if the necessary effect of the contract or combination was to restrain Inter-State commerce, and that this applied to all restraints, whether they were reasonable or unreasonable.

Mir. Watson. - There have been some decisions somewhat different to that.


Mr ISAACS - That portion of the decision has been upheld, and it is here, as I have indicated, that this Bill differs from American legislation, because it is not right, so far as I can judge, to apply drastic provisions of this kind to restraints which are not unreasonable.


Mr Watson - Did not the United States Supreme Court hold that there must be evidence in the deed of corporation of a desire or intention to restrain trade?


Mr ISAACS - In one sense, in a later case ; but the American Courts have upheld the decision that there must be an indication in the contract that it would directly affect Inter-State trade. It is not, however, necessary to prove that that is the purpose of it, but you must prove that that is the effect of it. Then came two other cases, in which certain meat trusts were triumphant The Court held that trusts formed to buy cattle for themselves within their own State were not committing a breach of the Act unless they bought to sell beyond the limits of that State.


Mr Glynn - The Sherman Act was really directed against carriers.


Mr ISAACS -r-It was, but the Court has held that it extends to every sort of contract.


Mr Glynn - I am aware that the Act is wider, but it was introduced to deal with carriers.


Mr ISAACS - The first case which gave a great shock to the trusts was that of the Addvston Pipe and Steel Company v. United States in 1899, 175 United States Reports, 211. There it was decided that a combination of manufacturers and vendors' to raise prices is in, restraint of Inter-State trade. It was sought to show that, because they were manufacturers agreeing with vendors as to whom they should sell to, and whom they should buy from, the decision in the United Stales v. Knight and Company - the sugar trust case - governed the matter ; but the Court pointed out that there must be no mistake about it, that whilst the decision in the sugar trust case, in which the trust was successful, was entirely based on the fact that there was no proof that the manufacture was connected with Inter-State trade and commerce, although it was a monopoly of manufacture, still if the contract was connected with the disposal of the goods beyond the State that was quite sufficient to bring it within the Act. The Court so held in that case, and it has been so held ever since. Then we come to the case of the United States v. Chesapeake and Ohio FuelCompany, 105 Federal Reporter, 93. There the Court annulled a contract by the corporation to take the entire product of a number of producing firms and corporations engaged .in the mining of coal, intending to sell it at not less than the price to be fixed by an executive committee, and to pay to the parties the entire proceeds over and above a fixed sum retained for compensation. The Court held that it was no defence that the agreement was not injurious to the public, or was actually beneficia.1 to the public. There are other cases, coming down to as late as 1905, in which the same principles are upheld. I shall just name them, in order that honorable members may look them up if they wish, and shall then pass on to the consideration of the Bill. One is the United States v. Swift in 1903, 122 Federal Reporter. 529. That was a meat trust case, and the decision was upheld by the Supreme Court of the United States on the 30th January, 1905. Then there is the case of Montague and Company v. Lowry, in 1904, 195 United States Reports,

38.   There is the case of the Northern Securities Company v. the United States, in 1904, 193 United States Reports, J97ยป in which it was held that a cor- poration was a trust and a combination in restraint of trade. Then there is the case of Ellis v. Inman, Paulsen, and Company in j 904, 131 Federal Reporter, 182. the timber trust case. In that case the Court ruled that the true inquiry is whether a. contract tends to appreciably restrain Inter-State trade, and, if it does, it is within the Statute, although such effect may not be so considerable as its other effects. Honorable members will see from these cases that the American law devotes itself entirely to the question of whether there is a restraint of trade, without regard to the fact that it is beneficial or injurious. This Bill will, I think, be seen to be framed with greater care to meet what I think to be the justice of the position, as unless the restraint is to the detriment of the public^ or injurious to industries; which ought to be preserved, there is no penalty at aW. But if there is a restraint of trade to the detriment of the public, or if there is an intention to destroy Australian industries whose existence is shown to be beneficial to Australian producers, consumers, and workers alike, there is a breach of the Act.


Mr McCay - There is no provision of the Sherman Act fairly corresponding to that.


Mr ISAACS - There is not, except the monopoly portion, and I do not know that it does not to some extent come under it. I am not' sure that it does not. But while I freely confess that there are no words in the Sherman Act to exactly correspond with that-


Mr McCay - The Sherman Act does not aim at an alleged mischief of that kind.


Mr ISAACS - I am not sure that the Sherman Act could not reach even that case. I think that restraint of trade may be brought about either by excessive prices or by running industries off the market. You can do a thin." directive or von can do it indirectly. But there has been no decision to that effect.


Mr McCay - All those cases go upon quite a different ground.


Mr ISAACS - So far they do: though I do not know what the American Courts may hold in the future. But whether they do or not. the Government is taking the responsibility of setting out clearly what it desires, and it is for honorable members to say whether thev agree to its proposals. We say, " If you designedly attempt to destroy Australian industries by unfair competition - only those industries, mark you, which it is desirable in the interests of all Australians to preserve-you come within the Act j otherwise you do noi." We apply the same principle, in clauses 7 and 8, to monopoly. In clause 6 we say that competition is to be deemed unfair, if the defendant is a commercial trust or the agent of a commercial trust, until the contrary is proved. We think that in itself it is unfair for any individual or individuals to have to compete with a trust. We say in paragraph b of clause 6 that if the competition would probably or does in fact result in a lower remuneration for labour, that is prima facie evidence that it is unfair. We take the ground that if competition can be maintained only by lowering the wage standard in Australia, it is prima facie unfair, and the onus of justifying it lies upon those who wish to see how far it can be justified.


Mr McColl - Who fixes the standard ?


Mr ISAACS - The standard will be that existing in the industry at the time when the competition commences. Then, if the competition would probably or does in fact result in greatly disorganizing Australian industry, or in throwing workers out of employment, that is to be taken as prima facie evidence that it is unfair. The same principle runs through each case. So far we have dealt with the repression of monopolies j but clause 10 is an adaptation of another power given bv the Sherman Act, which enables application to be made to the Court for an injunction to restrain the commission of or prevent the continuance of any act which is unlawful under the Bill. The other portion of it, to which I have already referred, relates to a prosecution. The portion to which I am now referring relates to the power of the Court to prevent the continuance of these acts. Clause it adopts a provision in the Sherman Act bv which any person who is injured bv means of an unlawful net is entitled to get triple damages, and such damages were obtained in the case of Montague v. Lowry to which I have referred. I welcomed a great number of the observations of the honorable mem ber for North Sydney and thought them very fair indeed. He recognised that there are occasions when it is necessary to put some restraint upon the attempts of men of large brain and small scruple to get command of the means of supply and distribution, who seek to tax the people regardless of the injury and wrong, they do. He said that we should seek the means of combating such men. He is absolutely in line with us there, and told us in generous words that there would be no opposition to that part of the Bill.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I did not express myself in that way. I said, so far as the Bill would effectively carry out that intention.


Mr ISAACS - I think that it will. I do not wish to carry the honorable member's words any further than I understood them.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I took exception to that part of the Bill.

M!r. ISAACS. - My honorable friend said that we must not confuse beneficent with destructive combines. I agree with him there, and the Bill all through makes a distinction between them. No stroke is levelled by it at any beneficent combine. No attempt is made to strike at any combination, however powerful, unless its action is wilfully directed to the detriment of the public, or to the destruction of Australian industries, which we regard it as necessary to preserve. I think it important to retain that fact in mind. While I thoroughly agree with the observation of some of my honorable friends opposite, that we must not slash round to destroy aggregations of capital, any more than that we should try to destroy aggregations of labour merely because they are aggregations, we must not hesitate to do so if we find the great power which they possess directed against the common weal.


Mr Webster - Wrongful intention would be pretty hard to prove.


Mr ISAACS - I do not think so. The intention must be found from the necessary result of the acts at the time. The American Courts have not hesitated to infer intention from necessary results, and every man is presumed to intend the necessary results of his acts. My honorable friend asked me whether we could not leave this matter to a Judge instead of to a jury ; but I do not. favour leaving a question of criminal intent, and its punishment, to a Judge alone.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - My first question was with regard to what the opinion of the jury should be taken on. The Bill says, "as to whether it is advantageous ta the Commonwealth."


Mr ISAACS - It is only in that connexion that the opinion of the jury is expressly mentioned, tout, as I have already explained, the-opinion of the jury will have to be taken in regard to many other matters besides.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Does not the inclusion exclude ?


Mr ISAACS - I think not; but, as I indicated when my honorable friend was speaking, there is no objection to the elimination of those word's. They were put in to show honorable members that our view is that the advantage of the Commonwealth is a question which should be left to the jury. It may be that these words can be struck out. Their omission would not alter the fact that the question will have to be left to the jury ; but it might be that other questions of fact would then more distinctly come within the province of the jury. That, however, is purely a Committee matter. Passing on to the anti-dumping provisions of the Bill, I have again to draw attention to clause 13 as the key-note of this particular portion. Although we provide that dumping of foreign goods is not to be allowed, under certain circumstances, it is essential to the application of this portion that the Australian industries which are to be protected shall be industries which, in the opinion of the Comptroller-General, or the Board, as the case may be, are advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers. I at once admit that there may be great difference of opinion as to whether the Board is a proper tribunal.


Mr McCay - Does not the honorable and learned member think that Parliament is the proper tribunal to decide that question?


Mr ISAACS - Is the honorable and learned member prepared to enumerate the industries which he wishes to protect, leaving out all others?


Mr McCay - It will take me too long to enumerate all the industries which I desire to protect.


Mr ISAACS - If the honorable and learned member willi furnish such a list, we may be able to determine the matter ; but he must remember, in making out his enumeration, that from day to day and from year to year industries alter in importance, and new industries spring up. I think that no one can enumerate all the industries of the Commonwealth which ought to be exclusively protected.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Not protected - preserved.


Mr ISAACS - I do not use the word "protected" in a fiscal sense. I mean protected from destruction. Whether you determine it by Parliament, by the ComptrollerGeneral, by a Board, or by a Judge, the only industries designed to be protected in the way provided for are industries proved to be desirable of continuance, in the interests of producers, workers, and consumers alike. We say that no Australian industry which it is desirable to preserve shall be killed, either by internal or externall attack. If an industrv should be preserved, we intend to make the preservation effectual. There is not the slightest use in saying that it should be protected from trusts in Australia if we let it be drowned by importations of dumped goods from abroad. Therefore we start with Australian industries necessary to be preserved, and say, " If foreign goods are brought in under certain circumstances which are shown to mean unfair competition, that competition shall be stopped." We define " unfair competition ' ' as follows : -

In the following cases the competition shall be deemed unfair until the contrary is proved -

(a)   If the person importing goods or selling imported goods is a Commercial Trust ;

(b)   If the competition would probably or does in fact result in a lower remuneration of labour.

Assuming that an industry is one which ought to be preserved, we would protect it against such competition as that indicated. Take the iron industry, for example. We want the iron ore to be dug up from the earth, and converted into pig-iron for use in the manufacture of machinery suitable for our manufacturers, our farmers, and every one else. Honorable members will not deny that this is an industry that ought to be preserved. If we found that the introduction of certain goods would result in the Australian product having to be withdrawn from the market, or sold at a loss, unless we cut down the wages of our labourers, or prolonged their hours of labour, we should regard the competition as unfair. If no matter what machinery we might introduce - what methods we might adopt, what advanced system we might bring into operation - we could not possibly maintain an industry which ought to be preserved in the interests of Australia, unless we sweated! our workers, we should have to protect it against unfair competition from outside.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Would that apply to goods coming from a country in which high wages were paid ?


Mr ISAACS - I would not care where such goods came from. If their introduction had effects such as I have described, they would compete unfairly with our manufactures. The quarter from which they came would be quite immaterial if they were going to kill an Australian industry which we considered it necessary to preserve.


Mr Wilks - Why does not the Minister admit that he believes in prohibition ?


Mr ISAACS - That question is answered by what I have already said. We provide that, unless the contrary is proved, competition, as defined by us, shall be deemed unfair. In other words, we say that if it is shown that' the goods are being introduced by a commercial trust or agent of a commercial trust, or if their importation would probably, or does in fact, result in a lower remuneration for labour, or if it would probably, or does in fact, result in greatlv disorganizing Australian industry, or throwing workers out of employment, the competition is unfair. As to these provisions we have had no hostile criticism.

Mn. Dugald Thomson. - There would be difficulty in disproving that the competition was unfair.


Mr ISAACS - No one can provide evidence beforehand. No doubt the question is a difficult one; but matters quite as complex have been successfully dealt with.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The importer is to be regarded as guilty until he proves that he is innocent.


Mr ISAACS - I shall be glad to welcome any suggestion for facilitating proof in these matters. Then we come to another provision. It is provided that the competition shall be deemed unfair until the contrary is proved -

If the imported goods have been purchased abroad at prices greatly below their ordinary cost of production where produced, or their market price where purchased.

All that means is that if goods have been purchased abroad below the ordinary cost of production - I do not care whether they have been bought as bargains or not - and they are brought here and come into conflict with an Australian industry that ought to be preserved, those who are bringing in the goods must prove that the competition is fair.


Mr Harper - If an importer absorbed the whole of the profit on his bargain, would he be regarded as competing fairly ?


Mr ISAACS - The clause deals solely with the price paid for the goods abroad.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If a man buys abroad cheaply, and sells here at the current rate, would he be guilty of unfair competition unless the contrary were proved ?


Mr ISAACS - In the case put by my honorable friend, the importer would immediately answer the whole case by saving, " I am not entering into unfair competition, because I am selling my good's at the same price as is every one else."


Mr Wilks - It will be "good-bye" to all bargain sales.


Mr HUME COOK (BOURKE, VICTORIA) - That is shutting off the consumer with a vengeance.


Mr ISAACS - Many of these questions answer themselves. It is further provided that competition shall be deemed unfair -

If the imported goods have been purchased abroad at prices greatly below their ordinary cost of production where produced or market price where purchased.

All that provision does is to call upon a person who is selling goods under circumstances which are certainly extraordinary to show that his competition is fair, although on the face of it it appears to be unfair.


Mr Wilks - Why do not the Government wind up the Tariff Commission ?


Mr ISAACS - Why does not the honorable member put a question that has some sense in it?


Mr Wilks - The Government are going behind' the backs of the Tariff Commission.


Mr McCay - Will the Attorney-General kindly point out where it is provided that these provisions shall be applied only to extraordinary cases? I cannot see any limitation in that respect, and that is my objection to this part of the Bill.


Mr ISAACS - Does my honorable and learned friend think that any person, in the ordinary course of trade, will sell his goods at prices which will not give him a clear profit on the fair foreign market value?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Traders cannot always obtain a fair profit.


Mr ISAACS - Business men do not carry on their business from philanthropic motives.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But they make losses.


Mr ISAACS - If we find that goods are being brought here in quantities and sold at prices very much below their foreign market value, as it is said they have been recently, we shall be justified in assuming that the importations are intended to run the Australian manufacturer out of the market, in order that the foreign manufacturer may afterwards hold the Australian consumers at his mercy.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They must be madmen to do such a thing, because they could sell at a, trifle under the prices of the local manufacturers, and effectively compete with them in that way.


Mr ISAACS - There is method in their madness. I think that my honorable friend will find that the course of conduct I have described comes directly within his own definition of a destructive combine.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - There is no combine at all.

Mi-. ISAACS. - No single individual could afford to do as I have suggested.

M.r. Kelly. - It is done every day in the ordinary course of business.


Mr ISAACS - I do not wish to enter into a discussion that would be more appropriate to the Committee stage, but I am endeavouring to answer the questions put to me by honorable members. So long as I explain the meaning of these clauses as they appear to me, the advisability and the justice of the provisions may be left for consideration in Committee. The Bill contains a series of clauses providing that the Comptroller may put the Minister in motion, and that the Minister may put the Board in motion, in order that they may arrive at a determination. Clause 37 answers the question put by the honorable member for North Sydney with regard to the power of examination into the affairs of the Australian manufacturers, as well as into those of the importers. The Board has power to order an investigation of the books of both local manufacturers and importers.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - My question related to the provision for restricting the amount of commission paid to agents for selling imported goods. I desired to know whether the Australian manufacturer was also to be prevented from paying too much commission to his agents.


Mr ISAACS - I shall defer dealing with that matter for the present. As I have said, clause 17 gives the fullest .power to the Board to look into everything. They are not required to show any favour or give any privilege to any person, whether he be an Australian or a foreign trader. Some honorable members have expressed the view that the Board is not the right tribunal to which to refer these questions - that a Judge should be selected. That view was also taken by the Government in the first instance. Long before any Bill of this nature was launched in the House, we decided to refer to a Judge all questions with which if is now proposed the Board shall deal. And we desire that now if we can bring it about. We only fell back on the Board, because we saw no other way of obtaining a {rood tribunal.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Why? Provision is made for a Judge in the other part of the Bill.


Mr ISAACS - The other part of the Bill deals with strictly judicial functions.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Many of the functions to be performed by the Board are similar to those which the Judge will have to discharge.


Mr ISAACS - My honorable friend will see that the other portion of the Bill deals with strictly judicial functions, because it relates to judicial decisions which will have to be given in a Court of Justice. The Board will not arrive at a judicial decision, but will merely report to the Minister. It isi still our desire to appoint a Judge, if we can see our way to do so.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The Minister could provide for a judicial decision in regard to the matters which are to be referred to the Board.

Mr- ISAACS.- If we can get the assistance of a Judge, we shall be very glad to do so. Speaking personally, I should have no hesitation in advising my colleagues to so frame the measure as to provide for a judicial decision in all cases. Honorable members must understand, however, that under such circumstances, the Minister would have absolutely no discretion, because we could not expect a Judge to undertake duties of that nature, unless his decisions were regarded as final.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Then there is the parliamentary! tribunal as well.


Mr ISAACS - Would the honorable member desire to bring before Parliament all the witnesses in every case, and the whole of the parties concerned? Would he have them give their testimony at the

Bar, and subject them to examination and cross-examination ? That cannot be done.


Mr McCay - Why not bring the report of the Board before Parliament?


Mr ISAACS - That would certainly be making it a political matter, and would, I think, be the worst solution of the difficulty. It would be undesirable to bring the parties before Parliament after their cases had been threshed out before an impartial Board.


Mr McCay - All I suggested was that Parliament should be substituted for the Governor-General.


Mr ISAACS - I repeat that if we can possibly arrange that a judicial official shall deal with these matters, that will afford the best solution of the difficulty. The House and the country would have confidence in the Judge. If the Minister could refer to a Judge, as is now done in some cases, and the fudge took the whole matter into his consideration, and upon questions of fact, gave a decision which would not be reviewable, that would be the best way of dealing with the matter. If, however, we cannot obtain the services of a Judge, we must fall back upon the Board, subject, of course, to parliamentary control over the Minister. The Minister is responsible for his actions to Parliament, which always has: it in its power to review his decisions.


Mr McCay - Surely that arrangement would make the matter as much a political question as would the one I suggested ?


Mr ISAACS - With great respect to my honorable and learned friend, I do not think so. Parliament would have the same power in this case as in regard to any other act of administration bv a. Minister. We know that, if we provide that this House " may " deal with the matter, it will not do so ; but if we say that it " shall " be the duty of Parliament that will force the function upon it, and that would be disastrous.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is this to be a permanent Board? Mr. ISAACS.- No.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is it to be peripatetic ?


Mr ISAACS - There is to be a Board in each case.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Then we may have opposite decisions in each case?


Mr ISAACS - We cannot have opposite decisions on questions of fact in different cases.


Mr Kelly - Juries arrive at different verdicts on questions of facts.


Mr ISAACS - As long as we have a human tribunal we shall have difficulties, but the best human tribunal we could h.ive would be one presided over by a Judge if we could get it. It was the desire of the Government that a Judge should deal with these matters, and, if it be possible, I should like to see that desire carried into effect.


Mr Poynton - Would that mean the appointment of a Judge or a Board in each of the States?


Mr ISAACS - No ; the suggestion is that we should have a Federal Judge to deal with a Federal matter. The honorable member would not have a State Judge to deal with a matter that concerned the whole of Australia.


Mr Poynton - The appointment of a Judge to deal with these matters would mean that a man's goods would be impounded pending the settlement of the dispute.


Mr ISAACS - Whether we had a Federal Judge, a State Judge, a Board, or the Minister to deal with these questions, the same result would follow. We cannot make Australia smaller than it is.


Mr Kelly - If we had only a Judge to deal with these matters the work would be done more expeditiously than it would be by an interested Board.


Mr ISAACS - Undoubtedly; and the decision of one man, of course, is generally unanimous.


Mr Ewing - It might be a "yes-no" decision.


Mr ISAACS - I used the word " generally." Honorable members will see from the information we have circulated that in America it was considered so important that these questions should be determined that the Expedition Act was passed to compel appeals from the primary Federal Court to go straight to the Supreme Court without intermediate appeals. On what is practically the direction - the certificate - of the Attorney-General of the United States, the Supreme Court deals at once with these appeals. I recognise, as the honorable member for Grey has pointed out, thai these matters should be dealt with promptly, and that a Board of three would take longer to deal with them than would ji Board of one. But I have indicated the difficulties in our way, and if they are to be overcome I think most honorable members will agree [Ml that it would be a happy thing to solve them.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The United States has no legislation similar to the part of the Bill now under discussion.


Mr ISAACS - The Sherman Act is very like it.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - No.


Mr ISAACS - Under section 6 of the Sherman Act, and section 76 of the Wilson Act, passed subsequently, goods imported in contravention of those measures are confiscated.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That provision relates to trusts.


Mr ISAACS - That is so in a sense, but the point is that whilst there the goods are confiscated, we do not attempt to secure such a power. All we say is that they are not to be permitted to enter Australia to destroy our manufactures and industriesin the way I have described.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Why not adopt the Canadian Act?


Mr ISAACS - I repeat that we do not go to extremes. What we do is to modify the Sherman Act by hitting only at detrimental operations. We modify that Act by declaring that goods are not to be confiscated, but that they are to be prevented from doing damage to Australian industry. They must be taken elsewhere.


Mr Kelly - Does that Act deal with anti-dumping ?


Mr ISAACS - No; but the Wilson Act deals with restraints by foreign companies upon American trade, and provides that the moment the offence is shown the goods in question shall be confiscated. As I have pointed out, there might be an innocent contravention without any intent whatever. There might be what was a restraint of trade, in fact, and yet not an injurious one, but so strong is the determination of the American Legislature to protect their industries, that even in that case the goods would be confiscated.


Mr McCay - Is not the Wilson Act aimed at the very opposite of dumping - at high prices as against low prices?


Mr ISAACS - I have already said that, so far, the decisions have dealt only with cases relating to high prices, but we can take the restraint of trade in another direction. I think one could say "I am going to drive competition out of the market as much bv cutting prices as bv high prices." One might cut down competition by saying to a man " I will not sell to you except at a very high price," or, "If you will not buy from me I will sell at prices that will run you off the road." All this amounts to a restraint of trade. It has yet to be considered by the United States Court whether such proceedings would or would not come within the Sherman Act. There has been no case of the kind so far, but one may arise at. any time. I have pointed out clearly to the House that there are no such words expressly embodied in the Sherman Act, but we have put them clearly and strongly in the Bill now before us. I believe that I have explained this measure as far as I possibly can. I have pointed out the difference between American legislation and our own, and I think that in these circumstances we have shown a very good case for the passing of this Bill. I am gratified to hear that we shall have the assistance of some of my honorable friends opposite in establishing at least the main principles of the Bill, and I would point' out that that having been dope the difficulties can be easily adjusted.


Mr HUME COOK (BOURKE, VICTORIA) - I should like to hear what is the necessity for this Bill.


Mr ISAACS - The honorable member himself let fall some encouraging words when he said that there was a distinction between constructive and destructive competition. It is only the destructive competition at which we are aiming.


Mr HUME COOK (BOURKE, VICTORIA) - The successful competition.


Mr ISAACS - No; "constructive and destructive competition " was the expression used by the honorable member.


Mr HUME COOK (BOURKE, VICTORIA) - That is right; but this Bill aims at successful competition, whether fair or otherwise.


Mr ISAACS - There are successful burglars, and we should hit at them, too. The honorable member also told us that there was a kind of dumping to which he objected. I was delighted to hear him admit that he was very much opposed to destructive dumping driving industries down to industrial earth. That is what we are seeking to prevent. It is refreshing to hear that dumping is not always beneficial. It has often been pointed out bv my honorable friend, and some of those associated with him, that dumping can never do any harm - that it is beneficial to all consumers ; but I am glad that my honorable friend concedes the point that there is a kind of dumping that drives the native industries down to industrial earth.


Mr HUME COOK (BOURKE, VICTORIA) - The honorable and learned gentleman evidently did not hear what I said.


Mr ISAACS - I shall be surprised if we do not find in print the words which I attribute to the honorable member, and which were noted by one or two honorable members on this side of the House. I quite agree with the honorable member for Parramatta that that is the kind of dumping; we should seek to suppress. We have before us a Bill which we regard as of great importance and of enormous interest to. Australia - a Bill which has a value far 'beyond any fiscal worth. We have been told that we should have waited for the final reports of the Tariff Commission. This measure, however, has nothing to do with the Tariff Commission. A Tariff is intended to give the necessary protection and' stimulus to native industries in the ordinary operations of commerce. This Bill, on the other hand, is directed, not against the ordinary operations of commerce, but against the extraordinary operations of those who wish to crush our industries at all hazards, and in spite of any Tariff we can pass.


Mr HUME COOK (BOURKE, VICTORIA) - There is not a tittle of evidence of such a desire.


Mr ISAACS - I must be forgiven for differing from the honorable member. I have expressly refrained from giving particular cases, because in some instances they are the subject of judicial consideration, and I might do an injustice by mentioning names.


Mr Kelly - Is that why the Minister of Trade and Customs dealt rather fully with certain cases?


Mr ISAACS - I am not going to do so. I have studiously refrained from saying anything about them. I think there is a sufficient basis for the belief that, independently of Tariffs - over and above Tariffs of all kinds, there is a necessity to protect industry. Free-traders and protectionists alike ought to agree that a measure like this should be assisted. Let us take a free-trade industry - one that has no protection at all. Why should those engaged in such an industry be driven out ot it by the overpowering influence of a foreign capitalist? Why should not free-traders sink the fiscal issue in respect to this question at all events, and help to maintain the integrity of Australian industry? The importance of this Bill cannot be overestimated, and instead of its being set aside as a fiscal document, we should all unite and see that Australia, in point of industry, is placed in front of all other considerations in relation to every other part of the world.







Suggest corrections