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Thursday, 5 July 1906

Mr ROBINSON (Wannon) . - That certainly makes the clause better; and I hope that a similar provision will be inserted in other parts of the Bill.

Mr Isaacs - The honorable member means in the anti-dumping part?


Mr Isaacs - I have no objection.

Mr ROBINSON - I am glad to hear that statement by the Attorney-General, because it removes a very serious objection to the Bill. Otherwise it would be possible for a man with antediluvian methods to allege that his industry was being disorganized, and his men thrown out of employment, by the more up-to-date methods of a rival.

Mr Isaacs - I do not quite think that would be so; but still, in order to make the matter clear, I willingly accept the suggestion of the honorable member for North Svdney.

Mr ROBINSON - I do not see why, in a case of this 'kind, we should hold a defendant guilty until he proves his innocence. I am not aware, so far as my reading goes, that, there is any such provision in the Sherman Act.

Mr Isaacs - The Sherman Act does not deal with this branch of the subject.

Mr ROBINSON - Nor am I aware of such a provision in any of the Acts of the various States of the American Union. The onus of proof should be thrown on the defendant only in very grave circumstances. There is a provision to that end in the Customs Act, because the revenue of the country is at stake, and because of the difficulty of obtaining proof, which might have to be sought at the other end of the world. In the case of the present Bill, however, the provisions deal largely, if not entirely, with internal monopolies.

Mr Isaacs - This does not deal with internal monopolies.

Mr ROBINSON - It deals with the operations of people carrying on business within the Commonwealth.

Mr Isaacs - It deals practically with external attacks on internal industries.

Mr ROBINSON - I cannot see how anybody can get away from the fact that such external attacks are dealt with in Part III., the whole object of which is to prevent dumping and unfair competition. Clause 13 defines unfair competition ; clause 14 provides when competition is to be deemed unfair, and the second part of the latter clause actually uses the words of sub-clauses b and c of the clause under consideration. If there is any meaning to be attached to this particular clause, it must relate to the operation of trusts within the Commonwealth. I .cannot see why we should depart from the old practice of holding a man innocent until he is proved guilty. It is a practice followed in every portion of the Empire, and is only departed from, as I have said, in very grave circumstances. Why should the onus of proof be thrown on the defendant in a case of this kind? The defendant would be charged with engaging in a combination to restrain trade - with being a member of a commercial trust - and he would be called upon to prove that his competition was not unfair. Surely it should be for the person, who alleges that the commercial trust is injuring his business, to prove his case. If the charge were true, the proofs would be within his knowledge, and could, with very little trouble, be placed before the AttorneyGeneral, or whoever had the administration of the Act.

Mr Isaacs - The complainant would have to submit that proof ; there is no relief from proof as to that.

Mr ROBINSON - The position is set up that, as the defendant is a commercial trust, his competition is unfair, and that, therefore, the onus should be on the defendant company, or agent, to prove that the competition is fair. It has been admitted by the Attorney-General and every speaker that a number of agreements, such as the coal vend, offer perfectly legitimate competition ; and yet the onus of proving innocence is to be thrown on those who make such agreements. We get back to the question of where a particular trust or agent is to be tried. What earthly hope would the agent of the Newcastle coal vend, for instance, have of proving his innocence along the Gippsland line, or in any part of Victoria? It is all very well to take the view that if the competition were fair and reasonable such an agent would not be penalized ; but surely the onus of proof should be on the complainant, as in ordinary criminal cases. As I have said, if the agent of such a trust were tried in some portion of Victoria, in Western Australia, or in any other place where there are coal mines, what chance would he have? Absolutely none. In the first place, his guilt in regard to unfair competition would be deemed to be a fact, and, secondly, he would be put on his defence in a place where his competitors carried on business, and where there was a strong presumption of his guilt on the part of the public, who would see that the business of the particular locality might be injured, while the business of some other place, perhaps hundreds of miles away, might be improved. In America, certain contracts in restraint of trade are illegal under the Sherman Act and other Acts, and yet it has not been found impossible, as the Attorney-General showed in his most exhaustive speech on the question, to deal as effectively with commercial trusts, as it ought to have been. Of course, it has been possible to deal with a number of them. The cases which have broken down in America have not been in the majority of instances unsuccessful for want of proof that the competition was unfair; but because the Act of Parliament did not go far enough, or was unconstitutional in some respects. We are embarking upon new legislation which is admittedly of an experimental character, and we now have before us a provision that a commercial trust, or a man who is an agent for a commercial trust, say, a man in Flinders-street who has a plate upon his front door stating that he is agent for some one's Newcastle coal - may be brought before a tribunal, and his guilt in respect of unfair competition be assumed until he proves his innocence. Surely it is most harsh and unnecessary to have such a provision in the Bill. As to the workableness of paragraphs b and c, I have doubts. Suppose that the man who complains of unfair competition goes into the witness-box, and says that if the competition is continued probably some of his men will be thrown out of employment, or wages will be lowered in his industry. Surely it is a very arbitrary proceeding to hold the defendant guilty until he proves his innocence. Every business man, be he trader, manufacturer, or merchant, looks with a certain amount of fear on any possible competitor. He knows that a competitor who takes away any portion of his trade may reduce his profits, disorganize his industry, or lead to the lessening of the remuneration of the labour which he employs. But to hold a man guilty for an act of that kind, which is one of the inevitable consequences of competition in trade, and not in itself a criminal act, is to my mind to go to lengths to which we ought not to go. I should like to hear from the Attorney-General some reason why he thinks the circumstances are such that we should insist on the onus of proof being upon the defendant. We have done it under special conditions in other cases. We have done it to protect the revenue in cases where it is very difficult to prove that the revenue has been defrauded. Here we are not throwing the onus of proof upon the defendant for the protection of the revenue, but we are making an act a crime which has not been a crime before, and we are calling upon a defendant who is charged with a new class of offence to prove his innocence, and it may be to prove it in a place where the presumption against him would be very strong from the start. We should have some weighty explanation from the Attorney-General as to why a defendant should be assumed to be guilty under the conditions referred to in paragraphs a, b, and c. I admit that there are departures from the ordinary principle in other respects ; but why should we depart from it in a criminal matter of this kind, and throw the onus of proof on a defendant?

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