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Wednesday, 4 July 1906
Page: 1009

Mr HIGGINS (Northern Melbourne) . - I feel very strongly upon this matter. I referred to it during my speech upon the second reading of the Bill, and I do think it is owing to a misunderstanding that any honorable member can seriously propose to. commit a man to gaol where the issue is so vague and so diffi- cult to determine as is the meaning of the phrase "to the detriment of the public.'-'

Mr Hutchison - Let us impose a fine for the first offence, and prescribe gaol for the second.

Mr HIGGINS - I understand the honorable member's view, but I do not wish to see any man convicted - even fined - unless he is guilty of a malicious intent.

Mr Hutchison - The honorable and learned member means unless it can be proved that he has malicious intent. That is the difficulty.

Mr HIGGINS - The honorable member should recollect, however, that it is also difficult to prove that any action is not to the detriment of the public. It is far more difficult for a person to understand beforehand what will and1 what will not appear to a jury to be to the detriment of the public than it is for one to prove that he has been acting with a view to damaging the public.

Mr Hutchison - He would understand after his first conviction.

Mr HIGGINS - But I feel that we ought not to put the brand of conviction upon any man unless he has done something of which he should1 be ashamed. I would remind the honorable member - looking at the Crimes Act of Victoria, which is almost a copy of the Crimes Act of England - that half the offences therein specified have intent as an element. For instance, in the falsification of accounts by a clerk or servant-

Mr Hutchison - I never knew a clerk or servant to escape conviction upon the ground that he had no intent to falsify his accounts.

Mr HIGGINS - Let us suppose that a clerk or servant did falsify or mutilate his master's accounts or books, so long as it was not done with intent to defraud he would not be guilty of any offence. .

Mr Hutchison - How often does that happen ?

Mr HIGGINS - We all recognise that clerks do alter books.

Mr Hutchison - They must correct errors.

Mr HIGGINS - Exactly. But if a clerk altered his employer's books for the purpose of correcting an error the honorable member would not put him in gaol ? Why, then, should we commit a man to gaol who simply makes an agreement in pursuance of his business, and without knowing that it will injure the public until he is told by a jury that it has injured or is injuring them ? Where we are dealing with juries we have very grave dangers to face. I will give an instance in point. Let us assume that there are a number of manufacturers of a certain article - say blankets or paints - who see that another individual is making an article of a very bad quality and underselling them. Let us suppose that they find that their market is being injured, and that the public is being. injured by the inferior production, and that, as a result, they enter into a combination by which they deprive the individual in question of his supplies. They naturally think that a combination of that sort is not to the detriment of the public, but that it is for the good of the public. But, of course, the individual chiefly concerned would have his friends, who, doubtless, would raise the cry, " Oh, he is a poor man. Why should he be tyrannized over by these wealthy men ?" I confess that it would be most difficult for a jury to decide whether such a combination was to the detriment of the public or not. Some people say it is good for the public that we should have shoddy-

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Would such things go to a jury for decision?

Mn. HIGGINS.- There are a host of ways of showing intent, and one is by attempting to conceal what has been done.

Mr Mcwilliams - An article might be a very cheap one, and still not be detrimental to the public.

Mr HIGGINS - That is quite true. I find, by reference to the Crimes Act of Victoria, that it is no offence for a person to effect an armed entrance into a house at night unless it is with intent to rob or to do wrong. Similarly section 124 of that statute enacts that if he enters a dwelling house at night with intent to commit a felony, he shall be liable to certain penalties. I am quite sure that the honorable member for Hindmarsh has a severe edge upon transactions of a certain character

Mr Hutchison - I have the support in this matter of the honorable and learned member for Bendigo, who knows the law.

Mr HIGGINS - I was not present when the honorable and learned member for Bendigo addressed the Committee, but I am greatly surprised to find that he can advocate making the act of any person a crime, irrespective of intent, if it turn out to be to the injury of the public.

Mr Mcwilliams - He has the advantage of being familiar with the evidence which was given before the Tariff Commission.

Mr HIGGINS - I do not know what the Tariff Commission has to do with the matter. Some people appear to have Tariff upon the brain.

Mr Mcwilliams - The honorable and learned member for Bendigo knows what the combines are doing, and we do not.

Mr HIGGINS - I venture to say that he does not know what the combines are doing more than does any member of this Committee who has access to the books in the Parliamentary Library, and who has held any conversation with those who have had to do with combines. One could not obtain stronger evidence of the evils accruing from combines than that which is given by .Mr. Lloyd, where he summarizes the investigations Of the commissions which have inquired into the matter in the United States. Of course, I have consistently taken up the position that these provisions will be nugatory, and I am endeavouring to prevent honest men 'from being injured under them, rather than dishonest men from being attacked. I feel that the clauses will be insufficient, and that just as similar provisions have been evaded in the United States, so these will be evaded here. Mav I add that all this criticism is confined to paragraph a, as I understand there is no objection to the retention of the words "with intent " in paragraph b.

Mr Hutchison - Objection has been taken to the whole clause.

Mr Isaacs - We are dealing with each amendment separately.

Mr HIGGINS -. - Exactly. At the same time, we ought to be consistent in paragraphs a and b. I shall not vote in favour of making a man a criminal who has no intention to hurt his fellows.

Mr. KELLY(Wentworth) [6.15}.- -it . seems to me that we have reached a stage in the consideration of this Bill - which is ostensibly intended to repress destructive monopolies - when our whole anxiety is to prevent honest men who may be brought within its scope from being victimized. Is it that our object is not to prevent trusts from victimizing the public as a whole, but- to prevent honest men from being penalized, now that they have been brought within the comprehension of the measure? The honorable and learned member for Northern Melbourne asks - " If innocent men hurt the public without meaning it, would you put them in gaol?" while the Attorney- General asks - " If the word intent ' were struck out, what chance would an honest man have under the Bill ?" Why have we brought honest men within its comprehension?

Mr Hutchison - But we have not.

Mr KELLY - The complaint of the Attorney-General is that so many honest men are brought within the scope of the measure that we have now to be specially careful to see that they shall not be victimized.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The trouble is that we are going through the farce of making a law which its own supporters say is useless.

Mr KELLY - Exactly. After hearing argument, I am prepared to allow the words to be inserted for the protection of honest men, wrongly brought within the operation of the Bill, but I submit that this is a regular farce on which we are engaged.

Mr Hutchison - The honorable member wishes to assist in what he calls a farce.

Mr KELLY - If the Bill be passed as is now proposed - and apparently it is hopeless to expect that it will be passed in any other form - it is a farce, and it ought to be treated as a farce when it is again dealt with as a whole. I agree with the Attorney-General that we have got to a position now when we have to consider what might happen to innocent men who have been brought under the measure through its scope being too wide.But I hope that the Committee will see that we are engaged in the farce of passing a Bill which will not be operative in the direction which we hope for - the repression of destructive monopolies.

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