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Tuesday, 3 July 1906
Page: 963

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) . - I am afraid that we are wandering away a little from the question under consideration.I agree entirely with the honorable and' learned member for Northern Melbourne as to the very great importance of saying what particular combinations we include under the term "commercial trust." But my criticism of his former speech was made because he had expressed some fear lest football and cricket clubs should be brought under this definition. I said that, as we were only dealing now with the definition of the term " commercial trust," which had reference to future clauses, where we should have room for a better discussion on the merits, he need have no fear of the definition touching the sort of clubsto which he referred. I quite recognise, with him, the great importance of knowing clearly what we are including in the phrase "commercial trust," and I hope that, when we come to clauses 6 and 14, the Committee will take into serious consideration whether it is going to extend the principle - it was copied from the English Act by the honorable member for Adelaide in framing the Customs Act - of throwing the burden of proving his innocence upon a defendant. Because there is an attempt here - and I canquite understand why it is done - to legislate to the effect that, when once any combination is brought within the definition of a commercial trust, it shall be presumed to be competing unfairly unless it proves that it is competing fairly. Probably it was seen that, where competition was involved in the importation of goods- from a country like the United States, it would be very difficult for the Customs authorities to prove that the competition was unfair by reason of the goods being imported at less than cost price in the country of production, and therefore the Government said, "We will presume that the competition is unfair unless the defendant proves to the contrary." I can understand the utility of it, but the Committee will have to consider by-and-by whether they are going, to embark upon the common use of this principle, which is a complete reversal of the fundamental principle of English justice, that where a man is charged with an offence he shall be proved guilty before he is judged so. In this Bill we are entering upon a more extended use of the principle of charging a man with an offence, and saying, " You are presumed to be guilty until you prove your innocence."

Mr Isaacs - There are a good many exceptions under the English law.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I am not dealing with that now, because I think it will come up more properly under clauses 6 and 14. What we are dealing with now is the definition of " commercial trust." The honorable and learned member for Northern Melbourne and the honorable member for Bland very properly say it ought to be full and explicit. I think it ought to be. unmistakable ; but, as it stands here, it is most vague and difficult to understand, because it does not attempt to describe a commercial trust, but simply says that it shall include certain things, although not all that it may comprehend. I agree with the honorable member for Kooyong that it is made possible to bring under this definition a great deal that is not even mentioned, and probably is not thought of, at the present time. There is another side to this question. We have to consider that the prosperity of this country depends upon the activity of its commerce, and that the activity of the commerce of a country depends upon the certainty with which it can be conducted. I remember that a Judge of the High Court of England once said that it was more important that the law should be certain than that it should be right; andthere is a great deal of philosophy in that statement. If we want the commerce of this country to progress we must give the people who make that commerce confidence; and if we, as was suggested by the honorable member for Bland, encompass them with a network which would involve them in a labyrinth of doubts as to whether they might or might not move without the fear of criminal proceedings, we shall paralyze the commerce of this country. Therefore, the definition ought to be clear, and the Government, although there are very few of its members with what I call practical business experience, ought to recognise that we are endeavouring to curtail, for what may be deemed beneficial purposes, the abuses of the commercial world. But we have to be very careful that in checking the abuses we do not go to the root of the thing itself and make a network of provisions which would render mercantile life unbearable. If a Bill like this was encompassed round with such a multiplicity of rules and regulations and vague definitions, that no person engaged iri commerce could move without feeling that he was running the risk of a year's imprisonment, it would cause every man who was in a position to do so to hold his hand, and probably injure the commerce of the country. The honorable member for Bland, when referred to by the honorable member for Parramatta with regard to the coal agreement, deprecated it, and mentioned the shipping agreement as another instance of an organization which ought to be touched by the Bill. I would remind the honorable member that I have had considerable experience of shipping. For some years, as the Committee probably may know, I was president of the Employers' Union, and managing director of one of the largest shipping companies of this country. I remember that when the excuse made for lowering wages was the " cut-throat" rates that were being charged by the shipping companies, the one contention of the trade unionists of this State was, " Why do you not combine among yourselves and insist upon the public paying you freights which would enable you to pay fair wages ?"

Mr Watson - That is a reasonable exercise of power, but extortion goes beyond it.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Yes, but the honorable member has not shown that there has been any extortion.

Mr Watson - I shall show that on another occasion.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The honorable member has not advocated that only extortionate cases should be brought under the Bill. He has advocated that agreements - for instance, the agreement between the shipping companies - should be brought thereunder.

Mr Watson - When they are operating to the detriment of the public, as mentioned in clauses 4 and 5 ?

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Through their representatives, thc-trade unionists of Victoria, at that time numbering some 46,000, invited the shipping companies to take the earliest opportunity of entering into a combination to keep up rates ; because, as I knew to my cost, the companies were cutting one another's throats in their desire to get business. With regard to the coal trade, the honorable member knows very well that only twelve months ago, when the coal companies gave the low price of coal as their reason for not increasing the rates of pay or for decreasing them, the one advice from all the trade unionists of Newcastle was, " Why do you not enter into a combination amongst yourselves to keep up the price of coal?"

Mr Watson - I have already said that so far the colliery proprietors have not abused their power.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The honorable member spoke in rather a general way in condemnation of these combinations on the part of the coal-owners and the shipping firms.

Mr Watson - No; I do not put the two on the same plane.

Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The honorable member will understand that I am not for a moment vindicating either. I know very well that both are capable of abuse; but, for years, the complaint of trade unionists has been that the shipping companies would not combine in order to keep up freights, and that the coal-owners would not combine in order to keep up the price of coal. We, as a legislative body, have to hold the scales in the framing of laws. I am quite sure that no honorable member is anxious to put any particular branch of commerce in such a position that it could abuse its power by combination and so mulct the public. I ami quite sure that there are many honorable members on both sides of the chamber who, while anxious to benefit the workers, are not desirous of paralyzing or stifling the commerce of the country. I indorse the remark of the honorable member for Kooyong, that we ought to remember that we are here as trustees, and not to represent particular classes. We are not here to give vent to class feeling and to do our utmost to win for one side or the other. We have to remember that the commerce of this country is its life blood, and to take care that while we are doing our utmost to prevent the abuses, which I am quite prepared to admit do occasionally creep in either from outside or from inside, we do not kill the goose in our anxiety to get more eggs.

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