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Thursday, 12 July 1906

Mr ISAACS (Indi) (Attorney-General) - - I fully appreciate the difficulty raised by my honorable friend. I think it is a fair one to raise, and I shall do my best to answer it. The clause with which we are now dealing might be called an interpretation. It defines what is meant by unfair competition. But, having defined it, we must see what use we intend to make of it, and for that we must turn to clause 15, because under clause 14 no powers are given. Under clause 15 we find that the Comptroller-General, in setting the Act in motion, has to come to the conclusion that the importation is with the intent to destroy or injure an Australian industry by means of unfair competition.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - He arrives at the intent by considering the circumstances set out.

Mr ISAACS - Not quite. This clause is not a definition of intent, and that is the distinction. It is a definition of unfair competition. But, although that unfair competition may exist, it does not conclude the matter by any means. There must be intent to destroy the industry, and to destroy it by that means.

Mr Glynn - That is an alternative only in clause 15. It is not the only matter in that clause.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It seems to me that clause 15 is governed by clause 14.

Mr ISAACS - The honorable and learned member for Angas is making a different point, which, perhaps, I might meet in this way : I have here a proposed amendment.

Mr Glynn - If the honorable and learned gentleman must amend the clause that knocks out the contention of the Minister of Trade and Customs.

Mr ISAACS - No. The Minister's view remains exactly as it was. I am travelling slightly off the path in order to meet the point raised by the honorable, and learned member for Angas. What he says is correct. There is an alternative, and I have here, already drafted, an amendment which will alter clause T5 so as to read - with intent to destroy or injure any Australian industry by their sale or disposal.

Mr Glynn - That shows that the Minister of Trade and Customs was mistaken.

Mr ISAACS - That meets the difficulty and gets rid of the alternative, but it leaves the other question raised by the honorable member for Parramatta in exactly the same position. Having got the intent, which is essential in every case, it must be shown that it is an intent which is to be carried out by the sale or disposal of the imported goods.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Those words are in the clause now.

Mr ISAACS - Not in that form, but in a form which does not get rid of the alternative.

Mr Glynn - The alternative practically neutralizes them.

Mr ISAACS - They are in with an alternative owing to the acceptance of the suggestion made by the honorable and learned member for Northern Melbourne, to include industry. We put that in, but we did so with an alternative. Now we wish to restore the clause, so as to include the suggestion of the honorable and learned member for Northern Melbourne, and at the same time get rid of the alternative, which I acknowledge the honorable and learned member for Angas has very properly pointed out, but which we had already seen. The intent to destroy must be proved in every case, and it has to be carried out by

Mr Kelly - If a man walks along a street with an axe and hits some one with it, is nothing to be done to him?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - If a man murders another with an axe and says that that was not his intent, is he to escape?

Mr ISAACS - If a man has an axe he may use it for a very lawful purpose, but if he comes into an assemblage of people and uses his axe there with improper intent, he should be stopped.

Mr Kelly - Under the terms of this clause, if he were to come into the assemblage at all, the improper intent would be assumed.

Mr ISAACS - No. I think I can put it in a way which will at once strike the honorable member for Wentworth as the proper way in which to put it. Suppose , we make an algebraic substitution, and read the words into clause 15 thus - wilh the intent to destroy any Australian industry by the sale or disposal of the imported goods in competition with Australian goods in a manner which, under the ordinary circumstances of trade, would probably lead to those goods being no longer produced, or being withdrawn from the market, or being sold at a loss, unless produced at a lower remuneration for labour.

Does my honorable friend see that?

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The exporter knows that the export of our goods to Great Britain must at once disturb and disorganize, to some extent, the trade in similar products of that country.

Mr ISAACS - My honorable friend will see tint we are not dealing with that at all at the present time. That is covered by another paragraph. That is only a prima facie piece of evidence, and we are now dealing with paragraph a, which is more than prima facie.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The exporter knows that that must be one of the effects from the export of our goods, if it is successful.

Mr ISAACS - I do not think the hon.orable member is doing justice to this particular clause. This is a definition of the words " unfair competition." The other paragraph to which ray honorable friend is referring is only prima facie.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If the exporter knows that he can compete successfully,

Mr ISAACS - No. The first step I wish to take is to explain that the intent is necessary in every case. Then the intent is to do it in a particular way - this way. Now, I have to deal with what this way means. It means, in the ordinary course of trade, if, no matter what you may do in the way of improving your machinery, no matter what advanced methods you adopt, how wise your system or how up-to-date it may be, you cannot maintain the Australian industry without giving an inadequate remuneration for labour. We propose, as honorable members are aware, to substitute the word "inadequate" for the word " lower." I say that you have to assume these things: First of all, an Australian industry which, by the terms of the Bill must, in all cases, be one that is of general benefit to Australian producers, workers, and consumers alike. In the specific words, put in last night, which I do not think carry the effect much further, but which put the question beyond all doubt, it must be an industry in which the workers receive adequate remuneration, and are not subject to any unfair terms or conditions of employment. Having that industry, which is of general benefit, and is one in which the workers are well treated, then we say that the competition is unfair if goods are imported with the intent, the deliberate intent, to break down that industry bv methods which we say are unfair, that is to say, in this instance, methods which no new machinery, good method, or advanced system can avert, and which can only be averted bv the lowering of the remuneration of labour to an inadequate amount. That is a summation of the position.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - We are competing in the same way in other countries.

Mr ISAACS - The honorable member will forgive me for saying that that is another question altogether, or, as Kipling would say, " That is another story."

Mr Kelly - It is another story which must be kept in mind.

Mr ISAACS - It may be kept in mind, but with that at present we are not concerned. What we are concerned with in this Bill is the preservation of Australian industries. If other countries bring the same law into force within their territory, I shall not complain.

Mr Kelly - Why say that this is unfair, when we are doing it ourselves elsewhere ?

Mr ISAACS - But I do not say we are. I think that is a fair answer, though it is immaterial to the Bill what we are doing. We are not going abroad and planting our produce in the Home market with the intent to break down and destroy industries by unfair competition.

Mr Cameron - But what if the result is the same?

Mr ISAACS - This Bill does not prevent the importation of goods which would have an injurious effect on our industries if our industries suffer that injury by fair competition - that competition we have to meet, and the Bill offers no obstacle. If foreign countries send their goods here under our protective Tariff - which is intended to meet ordinary: cases, and to provide only for fair competition - and thus lessen our production, we have to bear that, because the Tariff is framed on the basis that we employ advanced methods. I, for one, would do nothing to prevent the necessity for advanced methods, because we ought to be up-to-date; but the Bill declares - rightly or wrongly ; it is a matter of principle- that if,in spiteof our Tariff, our advanced methods, and all we cando to keep up-to-date, the only way we can maintain production is by cutting down wages or lengthening the hours of work unduly, the competition is unfair. That is the whole provision in the sub-clause ; and under the circumstances I think it is a fair provision.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If what the Attorney-General describes is unfair competition, what is fair competition?

Mr ISAACS - Fair competition I take to be competition that does not necessitate, in spite of all else we can do, lowering the standard of the wage-earner.


Mr ISAACS - I am not talking of exports, but of what comes into the country. We are. concerned with Australian industries.

Mr Cameron - What about Australian producers ?

Mr ISAACS - I respectfullysay that that is outside the scope of the Bill.

Mr.JOSEPH COOK (Parramatta) [9.42]. - I do not think that the AttorneyGeneral has met the difficulty. The honorable and learned gentleman, when he argues intent, is assuming an ordinary actual case; but the Bill goes much further. We have to take into account, not merely the action when committed,, but also the probability of its effect. How are we to argue intent from the mere probabilities of the. case?

Mr Isaacs - I submit that we do not do that ; the sub-clause does not deal with intent.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The sub-clause deals with probabilities.

Mr Isaacs - The sub-cause does not deal with intent, because intent is provided for independently.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The honorable and learned member is now answering his own statement made a little while ago - that intent was provided for later on - but that appears not to be the case.

Mr Isaacs - It is provided for.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - According to the sub-clause the Judge has to argue as to the probabilities of the effect of the importation of goods. The Judge has not to take into account the intention in the actual importation, but he has to consider what will be the probable effect of the importation before it takes place. That is to say, the Judge has to look ahead, and consider the emergencies of the situation ; he has to say to himself that, if a certain course is pursued, it may lead to certain results. There is no question of intention ; it is simply a sizing up of the whole circumstances surrounding the importation of goods. It seems to me impossible to in that way argue any intention.

Mr Kelly - It is impossible to assess intent by itself.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Intent cannot be deduced from the mere probabilities of the situation. We can. only judge what a man's intention is when that intention has expressed itself in some concrete act; and the expression of intention in this case would be the actual importation of the goods - there could be nothing else from which to argue. No proceeding can take place under the Bill unless a man complains that actual importations are damaging him, or unless he gets to know that importations are in process which will probably damage him by leading to the dislocation and disorganization of his industry. How it is possible to argue any intent from an act which is incomplete, I am. at a loss to understand. The Minister would do well to accept the amendment, which would lead to simplicity in the administration of the Bill, and would not, so far as I can see, make the measure any less substantially effective, while it would lead to the removal of possible causes of harassment to importers and traders. I take it that so long as substantial justice is done, from the Attorney-General's point of view, there is no desire for harassing restrictions. The sub-clause would lead to almost an infinity of legal argument before a Judge. We may take it that the first . act of the parties interested would be to employ counsel ; and if we let the lawyers loose on sub-clause a, to argue the question of probabilities in connexion with contingent actions, they would, it seems to me, argue until doomsday. The parties would be in a state of financial collapse before any action could be decided under the subclause. If I could believe that there was any substantial need for the sub-clause, I should not press the matter, neither, I think, would the honorable member for North Sydney. I suggest very strongly that sub-clause a should be deleted, and theJudge, or the Comptroller-General, left to decide what, in the circumstances, is unfair competition. Surely such a proposal covers every reasonable ground? After we have set up a tribunal in the shape of a competent Judge, why should we fetter and limit his discretion? Why is there any desire to give a Judge directions? Why not trust the Judge?

Mr Kelly - Trust the Court !

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - . Trust the Court; though I fear very much that it will be a law Court, and not a Court of substantial and rough justice. Let us leave the whole discretion to the Judge, and not tie him with positive directions from those, who, after all, will be laymen, and, perhaps, less able to instruct him-than he will be able to instruct himself from the evidence. I do not see what good this clause can be for the purpose, which the Minister has in view, considering the provision later on to which he has referred. For instance, if this sub-clause be deleted, theJudge will still be left to decide what is unfair in the circumstances - competition will still be deemed to be unfair until the contrary is proved, or if it probably will, or does in fact, result in lowering the remuneration for labour, in creating substantial disorganization in Australian industries, or in throwing workers out of employment. With all these intimations to the Judge, and with the burden of proof placed on the defendant, there is no need to direct the Judge to regard as improper and unfair, the acts mentioned in sub-clause a. Before leaving this question, I should like to say that I think the Minister had better have said nothing about Great Britain. When legislative effect is given to this clause, we shall be setting up a law imposing restrictions against Great Britain which, if she reciprocated, would absolutely ruin our export trade. This clause will stand absolutely as the reversion, entire and complete, as between Great Britain and ourselves of the motto, " Whatsoever ye would that men should do to you, do ye even so to them."

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