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Wednesday, 4 July 1906
Page: 985

Mr HIGGINS (Northern Melbourne) . - I congratulate Ministers upon the proposed amendments in this clause - amendments which will have the effect of making it clear that a man is not to be imprisoned or fined unless he has designedly committed a wrongful act. I understand that the Government propose to strike out the word " wilfully" in the early part of the provision', and to insert the words "with intent" before the words "to restrain trade." That amendment overcomes the criticism which I ventured upon during the debate upon the second reading of the Bill. But may I also suggest to Ministers that the words " to do any act or thing " are not necessary ? A combination may accomplish just as effectual work by refusing to do " any act or thing " as by doing "any act or thing." It may say, "We will not deal with So-and-So,"'as well as "We will deal with So-and-so." A very important question was put to the Minister by the honorable member for North Sydney - a question which goes to the very root of this legislation. I understand that he desires to know whether the effect of paragraph b of clause 4 will be to render it criminal to try to destroy a rival in trade.


Mr HIGGINS - Yes. I am putting the extreme case in order to make my illustration clearer. Is it to be a criminal act to endeavour to destroy a rival in trade as well as to attempt to destroy the whole industry ? As I read the clause I take it that there must be the intention to destroy the whole industry, and that the old gospel by which each man maykill his rival in trade is to be allowed free play and scope.

Mr Isaacs - It says " destroy or injure " the whole industry.

Mr HIGGINS - Of course there are hosts ofways of accomplishing that end. It is possible for a big monopoly to endeavour to kill its different rival firms in detail. If a jury found that it was its intention to destroy the whole Australian industry in detail its action would then come within the scope of the offences mentioned.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But the Minister's reply did not show that.

Mr HIGGINS - I admit that. If a merchant upon one side of Collins-street is supplying the Riverina, Queensland, and other places with goods, whilst another merchant upon the other side of the same street is endeavouring to supply them, one competitor may try to ruin the other, and he is to be quite free to do so, so far as the law isi concerned. He will be free to make use of glorious competition under the Bill, just as he has been up to the present time. It is only in the event of an attempt on the part of a combination to destroy the industry as a whole - not merely that of a particular firm - that a criminal offence comes in.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Does that mean the industry of the State or the industry of the Commonwealth, or the industry of a city ?

Mr HIGGINS -- As I understand, it must be in relation to trade or commerce with other countries or among the States. Therefore, it must be the case of a business whose operations extend beyond the limits of any one State.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Take the coal industry of Australia, the coal industry of Victoria, and the coal industry of New South Wales. The honorable and learned member says it must be shown that the combination is going to destroy the whole industry. Does he mean the destruction of the industry of a State, or the destruction of the whole industry of the Commonwealth ?

Mr HIGGINS - The honorable member asks whether, if the intention of the combination be to destroy only the coal industry in Victoria, that will be ar. offence under the clause.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I want to know what coal industry is meant?

Mr HIGGINS - If there be a distinct dividing line between the Victorian coal industry and the Australian coal industry, then I should say that it would be an Citfence under the clause. But speaking right off, I cannot conceive how there could be any distinction between the Victorian coal industry and the Australian coal industry. Of course there are different interests, and so on. So far as I can see here, it must be an Australian industry.

Mr Watkins - Suppose that by agreement the Newcastle coal-owners agreed to raise the price of coal, would that affect the position of Victorian coal-owners beneficially or otherwise?

Mr HIGGINS - I do not know. I understand that the honorable member isspeaking of a combination of Newcastle coal-owners to destroy the Jumbunna and: Outtrim coal industry.

Mr Watkins - The honorable and learned member could not consider it to be destroying the Jumbunna coal propertiesif the only object of the combination were to put their coal upon the market at what thev conceived to be a fair price.

Mr HIGGINS - That is on the same lines as the question put by the honorablemember for North Sidney.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Then the hon'orable member comes down to competition between the industry of one mine and the industry of another.

Mr HIGGINS - I should say that it must be shown to be an Australian industry, which of itself was a distinct industry, and it is very hard to say that the coal-mining industry in Jumbunna,. Outtrim, and elsewhere in Victoria is distinct from the industry of coal-mining iii Australia. However, that is a matter which would have to be determined according to the facts and evidence in each case.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Ought we not to determine it in the Bill?

Mr HIGGINS - If the honorable member can make it clear I shall help him,, but it is a matter into which I have not gone so fully as he evidently has done. I have submitted to the Ministers a provision which may be regarded as an amendment of this clause, or a new clause, and' which I hope will meet wi|th the approval of honorable members. It is drawnon the same lines as I indicated in my speech on the second reading of the Bill. There are a number of men who want honestly to obey the laws, if they can only understand what they are. They do not wish to be left in uncertainty as to whether under this Bill they are doing what a jury may say is detrimental to the public or is unfair competition. Whether a thing is to the detriment of the public or is unfair is so much a matter of opinion that they would very much like to feel' that they were acting free from all danger. In these cases a man must berried bv a jury. Juries may go wrong, but we cannot get better tribunals for dealing with facts or things which haveoccurred. At the same time, if it came to a matter of economic opinion, so rial' opinion, opinion as to what was for the good or .damage of the public, or as to what was fair or unfair in the way of competition, then the whole regiment of prejudices would arise, and as regards the jury, everything would depend upon their interests, their surroundings, and the State aspect.

Mr Robinson - Take -the case of the coal industry.

Mr HIGGINS - That is a very pertinent matter in this respect. There we should have local interests coming into play upon the question of what was or was not to the public damage, and also as to whether the competition was unfair or not. There are many men who have no objection to the terms of their combination being seen by anybody, and who would like to feel that they were acting without their necks in a halter, without there being, any danger of their being attacked for doing things to damage the public or for acting unfairly. What I have suggested is that if these men should wish to do so, they shall be at liberty to submit to the Department their agreement, and ask, " Is this to the detriment of the public or not ; does this involve unfair competition or not?" They would not be obliged to submit the document, but at the same time, if they took that course, and the Minister, after consulting experts, and looking into the whole matter, were of the opinion that the competition was not to the detriment of the public or unfair, he might give a cer.tificate to that effect, and, so long as it lasted, the man would be free to act under the agreement.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - What a fine field "for favoritism that would open up.

Mr HIGGINS - The honorable member -will see that there would be no bigger field for favoritism under this proposal than there is in the case of other matters which come before Ministers in the course of their administrative duties. It may be said, as it has been, that there will be favoritism in the matter of prosecutions under the Customs Act. Again,, in the matter of Tariff decisions, we may continually have danger of favoritism. If the honorable member could suggest any better tribunal than the Minister for the purpose, I should be very happy to accept it. But I conceive that, if the Minister is to retain control of matters, we cannot do better than put the responsibility upon him.

Mr Poynton - Would the Minister's refusal to grant a certificate prevent the man from going on ?

Mr HIGGINS - No. If the Minister refused to give the certifiate, the man could take the risk of going on, and say, " Prosecute me, if you like; I shall prove that the combination is all right." Speaking with a little experience in the drawing of agreements, including combination agreements, I should say that ninety-nine cases out of a hundred are innocent, and would not come within the measure; and that, of the ninety-nine cases, the great majority would be perfectly willing to have their agreement known and watched.

Mr Robinson - I do not think so, because they would be giving away the secrets of their business.

Mr HIGGINS - Quite so; but it will be observed that there is no compulsion put upon any one to go to the Minister. The amendment simply means that if a man' wished to get the protection of a certificate he could make an application, and if the Minister granted it, the man would be protected so long as the certificate lasted. But there must be power to the Minister at any time to withdraw the certificate if he thought fit.

Mr Robinson - Suppose that a man submitted an agreement which he was advised was proper, and that the Minister took a different view, the fact that he submitted the agreement, and that the Minister did not approve, might tell in the Court against the man.

Mr HIGGINS - I have no objection to the insertion of a provision to the effect that the refusal of the Minister to grant a certificate shall not be to the prejudice of the man submitting the agreement, and shall not be given in evidence.

Mr Hutchison - -"But suppose that the Minister refused -to withdraw his objection, and that the man was still breaking the law. Does the. honorable and learned member mean that the Minister would allow men to break the law?

Mr HIGGINS - No. So long as the man had the Minister's consent, there would be no breaking of the law. I ask honorable members to consider my proposal, which I admit must be looked into very seriously. I believe that all sides of the Chamber are impressed with the view that, whether this legislation be futile or effective, we must take every precaution that is within our power to prevent any honest man from being put in gaol, unless it be shown that he had wilfully broken the law. Imprisonment and fine are attached to the commission of this offence. I feel intensely the importance of not overstepping the mark, and of not making a number of men unhappy, and in the conduct of their business uncertain lest, perhaps, some jury, full of prejudices on different subjects, might say, " That is acting to the danger of the public, or acting unfairly." I am willing to move my amendment as a new clause or as a proviso to this clause, just as the Government may see fit to prefer, because I am anxious to help them with the frame- work of the Bill as far as I can.

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