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Wednesday, 9 October 1907


Senator BEST (Victoria) (VicePresident of the Executive Council) . - I move -

That this Bill be now read a second time.

The main measure - the parent Act - was passed on the 24th September, 1906, in the face of, as honorable senators now present will well remember, considerable opposition. Much reproach, and - shall I say? - scorn was heaped upon the Government because of its introduction. It was urged against it that it was too drastic and too high-handed in its terms, and that it would be a useless piece of legislation, because we had. not in our midst any combines or trusts, and certainly none of a mischievous character.. It was urged, indeed, that we were not so much as threatened with any trusts or combines of the kind. A little over twelve months have elapsed--


Senator Walker - And the Act requires amendment.


Senator BEST - My honorable friend is a little previous. I shall deal with that question. The Government have no regrets about the amendment of the Act. We now have to reckon with trade organizations - one may call them combines, trusts, vends, monopolies or rings - in regard to oil, coal, boot and shoe machinery, bricks, confectionery, tobacco, and proprietary articles.


Senator Millen - Does the honorable' senator say that the Government have the information ?


Senator BEST - I said that we have now to reckon with combines or trusts which are alleged. to exist in regard to those matters. Of course, it was obvious, and has been so for the last two or three years at the very* least, that the trend of trade was such that it was inevitable that sooner or later we should have, to deal with those institutions, and the Government therefore deemed it wise . 'that a precautionary measure of the character of the existing Act, known colloquially as the Anti-Trust Act, should be introduced. Senator Walker has already reproached us with the allegation that that Act has been a failure, or at least that it requires amendment. We admit at once that if the object of the Act is to be fully achieved, an amendment is required, not in regard to its fundamental features, or the fundamental offences which are made punishable under it, but only so far as additional machinery is necessary to facilitate the procuring of .evidence in proof of those offences. The problem of effectively dealing with trusts or combines is of considerable difficulty and complexity, hut, notwithstanding that, it is the bounden duty of the Government to grapple firmly and drastically with them if they do exist to the detriment of public interests. It will be. the duty of every Government, in the interests of the Commonwealth, where experience shows or suggests that the object of the parent Act is not being achieved, to follow relentlessly every evasion of the Act with the design of ultimately securing effective legislation, even should this involve amendment year after ' vear. No Government ner:d be ashamed, in view of the difficulties of thequestion, to introduce amending legislation* where it is necessary to do so in the light, of experience.


Senator Millen - Except where it refused suggestions when the original Billwas going through.


Senator BEST - Senator Symon accused the Government of timidity in connexion^ with this subject, and in relation to variousallegations, as to the existence of trusts and" combines.' From the Government standpoint that accusation is hardly warranted, and the honorable senator would probably be one of the first to admit it if the facts of the several cases were known. My. honorable friend seemed, if he will pardon me-' for saying so, to be under a complete misapprehension as to the terms of the AntiTrust Act, and the powers of the Government thereunder.


Senator Sir Josiah Symon - Does thehonorable senator mean when I spoke one the motion for the adjournment of the Senate recently?-


Senator BEST - Yes, when Senator Millen moved with regard to the Coal Vend. Senator Symon is reported in Hansari, on page 3691, to have said - and, of" course, those who, like myself, were in theChamber when he spoke, heard him -

An honorable senator made an interjection relating, to the discovery of documents, the obtaining of information, and all that sort of thing. Honorable senators will recollect that there is asection in this Act of the most drastic description which not merely enables every possible information to be obtained and documents to be procured, but which prevents any one, who isconcerned in a matter of this kind, from refusing to discover all documents or to answerquestions that may be put. to 'him in respect tothe matters at issue on the ground that thev arelikely to incriminate him. Everybody concerned in any proceedings that may be brought in respect of an infringement of the Act is liable in-, respect to the discovery of documents, and is compelled to reply to all questions, even if the result of his answers may be' to render him liable to a criminal prosecution. It is the most absolute. and unrestricted power of discovery that can. be given in any form of legal procedure. >


Senator Lynch - Would that form apply to witnesses for the prosecution?


Senator Sir JOSIAH SYMON - Yes. I am., referring to section ti, sub-section 2 -

No person shall -

That is, not merely one of the parties, but any- body - in any proceeding under this section be excused from answering any question put' whether viva voce or by interrogatory, or-, from making any discovery of docu-ments, on the ground th;it the answer or; discovery may criminate or tend to criminate him ; but his answer shall not be admissible in evidence against him in any criminal proceeding other than a prosecution for perjury.

Senator Symonwas obviously under a misapprehension when he made that statement, because reference to section 11 of the principal Act will show that the sub-section which he quoted refers only to civil cases, and not to prosecutions or criminal cases at all. The honorable senator was obviously under the impression that those broad and general powers of securing information existed in regard to all the offences under the Act. The main object of this Bill is to give to the Government - the Attorney-General - the powers which my honorable friend thought were contained in the existing law, and to make them apply not only to civil but also to criminal matters. The Bill seeks, amongst other objects, to confer those powers. I have mentioned on more than one occasion that the Crown Law Department, when alleged combines or trusts have been brought under notice, has discovered the greatest difficulty in securing the necessary evidence upon which to found prosecutions. The officers who were concerned in efforts to secure that evidence are men of experience and skill. One serious difficulty which arose was that, although the various combinations must have had for their foundation some agreement or contract, the Government were quite unable to secure either the original or a copy of that agreement or contract, or the necessary evidence in regard to it.


Senator Findley - That was not difficult to understand, seeing that the man who signed the contract was equally liable with the combination.


Senator BEST - Quite so. That is one of the difficulties, as my honorable friend says. In many cases where the Crown Law officer sought information, he was referred to the solicitor of the trust, or of the person to whom he applied, and that solicitor naturally would only give such information, and with great caution, as he, with his professional knowledge, saw fit to give.


Senator Millen - The Government did not expect anything else from a solicitor?


Senator BEST - Of course we could not expect anything else, and that is the difficulty which we are seeking to combat. We can rely on the fact that the evidence or information supplied was not the evidence or information that was asked for by the Department. It has been the duty of an experienced and skilled officer, Mr.

Powers, the Crown Solicitor of the Commonwealth, to undertake these investigations, and he has formulated the reasons for the difficulty in the way. He says -

In these proposed prosecutions of trusts and combinations the difficulty is to obtain evidence for the following reasons : -

1.   The persons who can give the information in most cases either (a) dare not assist for fear of the trusts, or (b) are benefited by working with the trust and will not do so.

2.   The trusts and members of the trusts or combinations naturally refuse to give any information voluntary if they have been doing wrong to assist in a prosecution against themselves, and there are no means at present available to compel them to do so.

3.   The consumers, the public, the persons who suffer most - and the Government representing the consumers, producers, and workers - can only get information from those who are to be prosecuted or those who are at their mercy either as purchasers from the trust, workers for the trust, or sellers of produce to the trust.

In these circumstances, and after the experience of some months, the Department has advised that these difficulties can be overcome only by some power being granted to the ComptrollerGeneral of Customs, or other officer, for the purpose of securing further evidence or information in the terms of the Bill now submitted. We have had a very curious revelation in connexion with the inquiries made concerning the Confectionery Trust. When seen on the subject, the solicitor to the Trust apparently in a very friendly way, was quite prepared to admit that there was a combination amongst the confectionery manufacturers, and to let the Government have a copy of the agreement, but it transpired that this particular combination of individuals confined its operations to the State of Victoria.


Senator Millen - Is that the honorable senator's latest information? They sent delegates to Sydney, and, I believe, to the capitals of other States, to bring the confectioners in those cities into the Combine.


Senator BEST - I am aware that negotiations were undertaken for the purpose of bringing certain Sydney manufacturers of confectionery into the Combine, but I am also advised that no definite and distinct evidence of the fact, sufficient to found a prosecution, can be discovered. The point I am making now, however, is that the Confectionery Combine has been formed in Melbourne under the terms of an Act of the State Legislature of Victoria. I believe that similar Acts are in force in the other States, and I have particularly noticed the Queensland Act. The Act to which I refer is the Victorian Trade Unions Act of 1890. I quote this Act as it is the one with which I am most familiar, and the one depended upon by the Confectionery Combine. I find that according to section 3 -

The term " trade union " shall mean any combination, whether temporary or permanent, for regulating the relations between workmen and employers, or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not if the Trade Unions Act 1884 or this Act ha-d not passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.

It is provided that the Act shall not affect certain agreements therein set out.


Senator Pearce - Have they affiliated with the Trades Hall?


Senator BEST - No; the extraordinary thing is that the Combine, under the terms of this Act, have registered themselves as a trades union. Section 4 of the Act provides -

The purposes of any trade union shall not by reason merely that they are in restraint of trade be unlawful so as to render void or voidable any agreement or trust.

The purposes of any trade unions shall not by reason merely that they are in restraint of trade be deemed to be unlawful so as to render any member of such trade unions liable to criminal prosecution for conspiracy.

And section 5 provides that -

Nothing in this Act shall enable any Court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements -

And amongst others it sets out -

Any agreement between members of a trade union as such concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ or be employed..


Senator Millen - The honorable senator does not contend that that Act overrides the Federal Act?


Senator BEST - I do not, but I point out that the persons . connected with the Confectionery Trust state that so far as Victoria is concerned they are registered under this Act, which authorizes combinations of the kind in restraint of trade.


Senator Dobson - In restraint of trade ?


Senator Macfarlane - The Act does not say so.


Senator BEST - It distinctly says so. I have just read the section. In view of the American experience in connexion with combines and trusts, I make no apology for the introduction of this Bill. Honorable senators will be aware that year after year, during the last twenty years, effortshave been made in America, not only by the Federal Government, but by various States Governments, to render their antitrust legislation more effective, and that it is only by recent legislation that that has been accomplished. Notwithstanding this- fact, as we all know, the United States are the home of trusts and combines, and they still flourish there. I am free to admit that a great difference exists between America and ourselves in this connexion, because the great carrying companies and railway companies there have been enabled, by means of preferences and discriminations, to assist the creation of trusts, and to combat all efforts made to restrict them. But it is singular to note 'that, although there, is drastic legislation on the statute-books, not only of Congress, but of the States Parliaments, by the exercise of extreme ingenuity the trusts have been able from time to time to evade the full effect of them. Legislation of this kind in America was started in 1887 with the Inter-State Commerce Act, which forbids any restraint of trade on the part of carriers or shippers in regard to Inter-State commerce. It also prohibits arrangements for -discrimination in preferences. Shortly afterwards, in 1890, there followed the Sherman Act, which declared trusts and combinations in restraint of trade illegal, and persons engaged in them guilty of misdemeanour. In 1894, the Wilson Act was passed to prohibit, in regard ato importations, combines in restraint of trade. Then again, in 1903, what was called the Expedition Act was passed for the purpose of insuring a more expeditious dealing with prosecutions against trusts. In the same year, the Commerce and Labour Act was passed, and a very important Statute, known as the Elkin Act, which prohibited rebates, drawbacks, and' discriminations, and declared these to be unlawful.


Senator Sir Josiah Symon - That was the Act under which Rockefeller's people were fined j£6, 000,000.


Senator BEST - Under that Act and the Act passed in 1906, which is a most important Act, and to which it will be necessary for me to refer later. No less than twenty-seven States and Territories of the United States have passed more or less drastic anti-trust laws. Glancing at some of these, honorable senators will find sections which enable the most searching investigations to be made, and information- of a most helpful character in connexion with prosecutions to be procured.


Senator Sir Josiah Symon - Is there any American Statute which enables an investigation of people's books to be made before there is any prosecution at all.


Senator BEST - Yes; and I propose dealing very fully with that matter, because it is most important. As I have said, anti-trust laws have been passed by some twenty-seven of the States and Territories, and I propose to quote a section from an Act passed by the State Legislature of Ohio, which is typical of the sections to be found in these American Acts, to show how helpful American legislation is in regard to prosecutions. This section provides that -

In prosecutions under this Act it shall be sufficient to prove that a trust or combination a-s defined herein exists, and that the defendant belonged to it or acted for or in connexion with without proving all the members belonging to it or proving or producing any article of agreement, or any written instrument on which it may have been based, or that it was evidenced bv any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation" as such.

Then another section of a State Act provides in a similar provision -

And a preponderance of evidence is sufficient to authorize a verdict, and judgment for the State.

It has been charged against the Government that the provisions of this Bill are of a somewhat drastic character, and capable of being tyrannously exercised. This leads me to ask the special attention of honorable senators to the drastic character of the American legislation on this subject. 1 have already mentioned that the United States Commerce Act was passed 'in- 1887. It applies to all common carriers engaged in Inter-State commerce. I do not pretend to give the wording of the provisions ot these Acts, but I have made -a brief note in accordance with their tenor, and honorable senators are, of course, at liberty to consult the Acts themselves. This Act provides that all charges for transport must be reasonable, and prohibits pools or combinations in Inter-State traffic. It. provides for the appointment of an Inter- State

Commission to secure the enforcement of the Act. Under section 20, this Commission is given extensive powers of investigation of the affairs of all common carriers subject to the Act. The Commission is enabled not only to require reports from all common carriers, subject to the Act, but -to fix the time and prescribe the manner in which such reports shall be made, and further, to require from such carriers specific answers to al} questions upon which the Commission may need information.


Senator Millen - Is that a Federal enactment ?


Senator BEST - Yes. The Act sets out the form in which these several corporations shall formulate their reports, and says, moreover, that these reports must contain such information in relation to rates or regulations concerning fares or freights, agreements, arrangements or contracts for common carriers as the Commission may require. I especially point that out - that these reports must contain such information regarding fares, freights, or agreements, arrangements or contracts with other common carriers, as _ the Commission may require. Further, the Commission may, within its own discretion, require all common carriers to have. an uniform system of accounts, and mav prescribe such uniform system. Now . I come to the Act of 1906!. The section of which I have just given an epitome was amended by a law of .29th June, 1906, which gives still more extensive powers of investigation to the Commission. Under that law of 1906 these reports have to be made on oath, and any failure to file the report within the prescribed time, or to make specific answer to any question authorized by the section itself, that is to say, any question on which the Commission may need information, -is punishable by a fine of $100 per day. The Commission may also require Inter-State carriers to file monthly reports of their earnings and expenses, or special reports within a specified period under a similar penalty. The Commission has access at all times to all accounts, records, and memoranda to be kept by Inter- State carriers, and it is unlawful for a carrier to keep any other accounts, records, or memoranda than those prescribed or approved by the Commission. The Commission may furthermore employ agents or examiners who have authority under the order of the Commission to inspect and examine all accounts and records kept by any common carrier. The penalty for refusing or failing to keep such accounts or to submit such accounts to the inspection of the Commission, or any of its authorized agents or examiners is $500 for each offence, and for every day of the continuance of the offence. Any failure to make true or correct entries, or any mutilation thereof, is a misdemeanour punishable by a fine of not less than $1,000 or not more than $5,000 or. imprisonment for from one to three years; or both fine and imprisonment. Compliance with these requirements mav be secured by a writ . of mandamus issued bv the circuit or district Courts. The special agents or examiners appointed by the Commission have also power to administer oaths, examine witnesses and receive evidence. The Act also contains other provisions with regard to the protection of witnesses. My honorable friends will thus see that nothing can be more drastic or comprehensive than the powers conferred upon this Inter-State Commission in regard to the 'securing of information that it may seek or require as to the management, organization or carrying on of these combines or trusts.


Senator Sir Josiah Symon - That Act has nothing to do with combines or trusts. It merely relates to the regulation of transportation.


Senator BEST - My honorable friend will see that it applies to every corporation.


Senator Sir Josiah Symon - It does not apply to anything except what comes before the Inter-State Commission.


Senator BEST - It applies to every corporation in the most wide and comprehensive terms. Every corporation which, may in any way, directly or indirectly, be connected with any other corporation is liable to have its affairs inquired into under this drastic and comprehensive law.


Senator Sir Josiah Symon - Where does it say that? .


Senator BEST - The Act itself says so.


Senator Sir Josiah Symon - It applies to carriers.


Senator BEST - The Act of 1906 goes further; at any rate, the Act of 1903 went very much further.


Senator Millen - What the VicePresident of the Executive Council has just said as to the powers conferred upon the InterState Commission apply only to Inter-State carriers.


Senator BEST - That is so.


Senator Sir Josiah Symon - May j mention - my honorable friend will see thedistinction - that the Inter-State Commission is a Court, a tribunal, before which* the proceedings referred to are to takeplace. But what the Government is proposing to do under this Bill is to givearbitrary power to the officer of a Department, not to a Court.


Senator BEST - That is so undoubtedly. I am describing these American Acts for the purpose of showing exactly what hasbeen done in the United States. It hasbeen urged against this measure that it ishighhanded and drastic, and that it proposes to make wide and alarming inroadsupon, the liberty of the subject. I reply, that as regards common carriers, all thesedrastic powers are already given in theUnited States. I also point out that, by theterms of the 1903 Act, a Bureau of Corporations has been established which hasfor its object the investigation of the affairsof corporations generally. By section 6 of the Act, a' similar obligation is imposed inregard to making full disclosures of transactions and answering questions, and submitting books and records for inspection aswas imposed upon railroad and carrying; companies in the United States by the Act of 1887.. In February, 1903, the United1 States Congress established a Department of Commerce and Labour. . Section 6 of the Act of 1903 enacted that there should" be in this Department a bureau, to be called' the Bureau of Corporations, with an officerknown as the Commissioner of Corporations at its head. This Commissioner has power to make investigations into the organization, conduct and management, and* the business of any joint stock company, or corporation, or corporate companies engaged in Inter- State commerce, except common carriers, who are dealt with under the Inter-State Act of 1887. It is provided that the information so obtained, or as much thereof as the President may direct, may be made public. In order to accomplish these purposes, the Commissioner has, with respect to all corporations or combinations engaged in Inter-State commerce, all the powers which are conferred by the Act already referred to upon the InterState Commission. That is to say, he has all the powers that are contained in' the Act of 1887, and any amendments up to- 1903. I have described these precedents to show the extent to which the1 Congress of the United States has seen fit to go with the object of exercising some -control over corporations, and over trade and commerce as affected by them. It is the duty of this Bureau of Corporations to issue reports from time to time ; and, although it has the large powers to which I have already referred, yet it. is seeking additional powers. Amongst other things, I notice, from its Report of 1905, that reference is there made to a scheme 'or plan which was proposed, whereby a corporation should be permitted to carry on its business, only under a Federal licence ; and, on page 18 of volume 26 of the Department of Commerce and Labour Reports they say -

The Federal licence plan recognises that real supervision, real regulation, can only be enforced "by a Government whose jurisdiction and powers are great enough to cope with the corporations to be supervised or regulated.


Senator Millen - Can that licence issue to a combine or joint stock company?


Senator BEST - The proposal is in order to have more real and effective control over corporations, that they shall only foe permitted to carry on under a licence.


Senator Sir Josiah Symon - The Bureau of Corporations is merely established under an Act which is virtually an expansion of the principle of the Victorian Companies Act. That is all. There is far more control over corporations in Victoria than there is in South Australia.


Senator BEST - Quite so; but this goes very much further than we do in any State of the Commonwealth. In the Report it is also stated that - the time is ripe for Congress to assume such supervision or control.

My honorable friend will be aware of the work that has already been done by this Bureau of Corporations in the "United States. I speak subject to correction when I say that the transactions which recently took place in reference to the Standard Oil Company were the outcome of the investigations made by the Commissioner of Corporations. The drastic powers that he had enabled him to enter, and investigate, and search, as deeply as he chose, into the affairs of the various railroad companies, oil companies, and other corporations, with the result that we have recorded the colossal fine of something like ^5,500,000 for breaches of the anti-trust laws of the United States. These investigations enabled the Commissioner to reveal the most alarming scandals in connexion with trusts. Amongst other things it was shown that in 1899 the value of the assets of the Standard Oil Company was £5,500,000. In 1906 the value had risen to £74,500,000 in value, and the total profits earned in the meantime were something like £98,000,000. The dividends distributed amounted to something like ^61,500,000.


Senator Millen - There is a weak point to which I should like to draw the Minister's attention. The Bureau to which he has referred would not be able to touch a number of individuals acting as a combine. It can only move apparently in the case of joint stock companies?


Senator BEST - Yes; the Bureau of Corporations no doubt controls corporations only. But those corporations in the United States, as my honorable friends will be well aware, have in some cases been enabled to defy Congress, and. to take into their own hands the control and direction of a large part of the trade and commerce of the United States. . It is our duty - it is the duty of the Government and of the Commonwealth Parliament - to see that the public of this, country are not menaced by such colossal and octopus organizations. I do not think that it is possible, by reason of the fact that the railways of the States of Australia are owned by- the Governments of the States, for trusts and combines in this country to approach the tyrannical powers or the magnitude of the American corporations. But they can be, perhaps, not less mischievous within their own more limited circle. The Government proposes - provided, of course they are enabled to do so by the passage of this measure, . to attach one «or two officers to the Attorney-General 's Department, with a view of investigating these cases of combines or monopolies which prima facie are engaged in committing offences against our anti-trust law. The special duty will be cast upon these officers

Df making investigations. Where evidence can be procured by the making of rigid investigations, they will procure it, and upon it will be founded the necessary prosecutions where the evidence is sufficient. I wish honorable senators to understand me when I say that I do not for one moment assert- that all trusts are necessarily bad. We have good trusts, and we have bad trusts. As a matter of fact, in the United States they do not attempt to discriminate between good and bad trusts. According to the' Sherman Act, where any restraint of trade exists by means of a combination an offence is committed. But under the Commonwealth law, there is a distinct discrimination, and an offence is only committed in regard to those -corporations or combines that are detrimental to .the interests of the public. In those cases only do we desire to prosecute.


Senator Pearce - Is it not necessary to prove that they are detrimental to Australian industries?


Senator BEST - I shall deal with that point presently.


Senator Guthrie - Can the Minister instance a good trust and a bad trust?


Senator BEST - I can cite the Standard Oil Trust as an exceedingly bad trust.


Senator Guthrie - That is a foreign one.


Senator BEST - At the present time, we have not any definite legal evidence of the existence of a trust in Australia. 1 Senator Sir Josiah Symon. - How about the Steam-ship Combine?


Senator Guthrie - Who are running cargo along the coast more cheaply than is done in any other part of the world.


Senator Sir Josiah Symon - And who are charging their passengers what they like.


Senator BEST - That may be a good trust. It may be quite legitimate to control trusts and to regulate trade in such a way as to pay a fair return on capital and fair wages to the workers. That in itself may be a perfectly legitimate operation, and that would not be regarded, I think, as furnishing evidence of the existence of a vicious or injurious trust.


Senator Guthrie - Then we shall want an officer of the same status as the Master of the Supreme Court to tax the costs.


Senator BEST - I cannot stop to argue that at the present time. I am merely laying down the general principle that it is possible for good trusts and bad trusts to exist, and that the object of our anti-trust legislation is only to get at the mischievous or bad trusts. Clause 4 of the Bill refers to sections1 4, 5, 7,. 8, and 9 of the principal Act. In order to illustrate fully what I mean, I wish to draw the attention of honorable senators to the terms of the Act, and to show how we seek to get at only vicious trusts. Section 4 of the Act says -

Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination,- in relation to trade or com merce with other countries or among the States - (a) with intent to restrain trade or commerce to the detriment of the public; or (4) with intent to destroy or injure by means- of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty of an offence.

Every person who is guilty of an offence is liable, to a penalty of ,£500, and the contract is declared to be illegal and void. Section 5 of the Act reads -

Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or entered into any contract, or engages or continues in any combination - (a) with intent to restrain trade or commerce within the Commonwealth to the detriment of the public, or (b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers, is guilty .of an offence.

Every person who is guilty of an offence is liable to a penalty of ,£500, and the contract is declared to be illegal and void. Section 7 says -

Any person who monopolizes, or attempts to monopolize, or combines or conspires with any other person to monopolize, any part of the trade or commerce with other countries or among the States, .with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of am offence.

Every offender is liable to a 'penalty of £500, and the contract is declared to be illegal and void. Section 8 reads -

Any foreign corporation, or trading or financial corporation formed within the - Commonwealth, which monopolizes or attempts to monopolize, or combines or conspires with any person to monopolize, any part of the trade or commerce within the Commonwealth, with intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity, is guilty of an offence

Every offender is liable to a penalty of £$00, and the contract is declared to be illegal and void. Section 9 deals with the question of aiding and abetting, and fixes the penalty for that offence at ^500. Subsection 1 of section 11 empowers a private individual to recover treble damages, while sub-section 2 gives very considerable powers for the purpose of discovering documents and securing information. Section 14 reads -

(1)   No criminal proceeding shall be instituted under this Part except by the Attorney-General or some person authorized by him.

(2)   No civil proceeding shall be instituted under this Part without the written consent of the ' Attorney-General.

So far as its provisions are concerned, the Bill is founded upon the Customs Act, because it has been generally recognised that the machinery provided in that Act has been the reason for the success of the Customs prosecutions which have taken place from time to time. I venture to say that large and important prosecutions could not have been carried to a successful issue, and fraudulent importers and others heavily fined, and in some cases imprisoned, without the auxiliary assistance of that machinery, which has been copied in this Bill. Section 255 of the Customs Act reads -

In every Customs prosecution the averment of the prosecutor or plaintiff contained in the information, declaration, or claim shall be deemed to be proved in the absence of proof to the contrary, but so that -

(a)   When an intention to defraud the revenue is charged the averment shall not be deemed sufficient to prove the intention ; and

(b)   in all proceedings for an indictable offence or for an offence directly punishable by imprisonment the guiltof the defendant must be established by evidence.

We have sought to reproduce that section in the proposed new section 15A which is contained in clause 4 of the Bill.


Senator Pearce - Is that identical with the section in the Customs Act?


Senator BEST - Practically it is. Section 38 of the Customs Act says -

Any person making any entry shall, if required by the Collector, answer questions relating to the goods referred to in the entry.

Section 234 provides that amongst a number of things which are enumerated -

No person shall -

(g)   refuseor fail to answer questions or to produce documents.

A person who commits that offence is made liable to a penalty of £100. Those two provisions are reproduced in the proposed new section15B.


Senator St Ledger - It is putting a combine on the same level as a supposed smuggler.


Senator BEST - If a combine breaks the law it is equally guilty of a criminal offence. The Customs Act could not be operated successfully did it not enable the Government to go to the importer direct and make him disclose evidence, and produce his books. He is perhaps the only person who possesses the information, and his are the only books which will disclose nefarious conduct.


Senator Pearce - President Roosevelt says that they are the worst criminals in society.


Senator BEST - Yes. Section 214 of the Customs Act is reproduced in the proposed new section 15c. The section reads -

Whenever information in writing has been given on oath to the Collector that goods have been unlawfully imported, undervalued, or entered or illegally dealt with, or that it is intended to unlawfully import, undervalue, enter, or illegally deal with any goods, or whenever any goods have been seized or detained, the owner shall immediately upon being required so to do by the Collector produce and hand over to him all books and documents relating to the goods so imported entered, seized, or detained, undervalued, or illegally dealt with, or intended to be unlawfully imported, undervalued, entered, or illegally dealt with, and of all other goods imported by him at any timewithin the period of five years immediatelypreceding such request, seizure, or detention, and shall also produce for the inspection of the Collector or. such otherofficer as he may authorize for that purpose, and allow such Collector or officer to make copies of or extracts from all books or documents of any kind whatsoever wherein any entry or memorandum appears in any way relating to any such goods.

If a person fails in that regard he is liable to a penalty of £100. The proposed new section 15D, which is contained in clause 4 of the Bill, is a reproduction of section 215 of the Customs Act, which says -

The Collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the person otherwise entitled to such document shall in lieu thereof be entitled to a copy certified as correct by the Collector, and such certified copy shall be received in all Courts as evidence and of equal validity with the original.

It will be seen, therefore, that in submitting the Bill we are not attempting novel legislation, but are only seeking to apply to trusts and combines that machinery which has proved itself eminently successful in the cast of imports. We do not propose to take more drastic powers as regards searching books and acquiring information than are contained in well-known American legislation. We are, therefore, not attempting any greater infringement of the liberty of the subject than the circumstances of the case completely warrant. We do not aim at discouraging individual effort, individual competition, or individual enterprise ; but we do aim at controlling, as far as possible, or, if possible, destroying, vicious combinations which are detrimental to the interests of the Commonwealth - which means the interests of the public. We are seeking to control them thoroughly and effectively so far as we can, and thereby to establish fair dealing. But we cannot look with equanimity on the growth of combines or trusts such as I have referred to without asking Parliament to make some effort at the very earliest stages of the Commonwealth to place them under proper and effective control. In all these circumstances I submit to honorable senators the measure for the amendment of the parent Act with some amount of confidence, and in the hope that the object which we have in view - the public good - will be achieved by its passage.

Senator Sir JOSIAHSYMON (South Australia) [4.17]. - It may be well upon a Bill of this description, although a little further time for consideration might be valuable after the second reading has been moved, that any of us who have a clear understanding of what the Bill means should at the earliest moment express our views. I therefore take the opportunity now of offering some remarks for the consideration of honorable senators, following as closely as possible the speech to which the Senate has just listened from the Vice-President of the Executive Council. In two or three respects I agree wilh what he has said. In the first place, I suppose that we are all .animated by the desire to promote, so far as we can, the industrial and trading prosperity of the Commonwealth, and also to prevent the possibility of injury being done to the consuming public within the Commonwealth by a too inordinate desire on the part of those engaged in trade and commerce to accumulate wealth in a hurry. It is also common ground with all of us to deprecate in the strongest possible way any organizations, known by the denomination of combines or trusts, which might be in their working and management inimical »to the best interests of the people of the country. I agree also with the honorable ' senator that there may be good and bad combines. \ou cannot predicate of an association, whether of companies or_ of ' individuals, that it is vicious or likely to prove harmful to the community simply because it happens to be a combination or arrangement amongst a number of different individuals or different corporations. To say that would really be absurd, because every partnership is a combination of individuals.


Senator Millen - The existing law assumes certain things where a trust is proved to exist, whether it is good or bad.


Senator Sir JOSIAH SYMON - That is true. I am obliged to my honorable friend for reminding me of it. I shall have occasion shortly to allude to the point of view which he suggests. We are all agreed that where anything that is vicious and detrimental to the public - any thing 'of evil effect - is shown to exist, an effort ought to be made in some direction and by. some means to put an end to it. It does not matter what shape it takes. If that evil result is produced by a combination of companies or of individuals, undoubtedly no effort ought to be spared to bring about legislation that will grapple with it. and, when we get that legislation, to bring it into operation. I say that now", as I said it when the Bill which is .sought to be amended was under the consideration of the Senate twelve months ago. I do not think that any man, unless, perhaps, some one who is himself concerned in a mischievous trust or combination, would be prepared to s.\y that he was not anxious to bring about and cany out legislation to put an end to mischievous combinations of any kind. As we are all agreed upon that subject, the only real point for consideration is whether we already have machinery which, if properly carried out, ought to be efficacious, or whether the Government are justified, whenever they are called upon to enforce the law as it exists, in immediately hanging back - that is the timidity of which I spoke - and saying, " Oh, no, we are not going to try to bring the existing law into operation. We are going to let things slide until we can- get a further amendment of the law."


Senator Millen - To sit back in the breeching and ask for another horse to pull the team along.


Senator Sir JOSIAH SYMON - That expresses much more tersely what I was endeavouring to say.


Senator Pearce - Where the waggon is ' stuck that is -good policy.


Senator Sir JOSIAH SYMON - Yes, when you are stuck. But what some of us said when, the matter was under discussion recently was that you can pretend to be stuck in order to bring out the other horse. The Vice-President of the Executive Council says that I reproached him: - I. hope that I did not do it in an unkindly way - or reproached the Government, with not_ having brought into force the existing legislation. He then, in an emphatic utterance, said that the Government were going to firmly apply the law, and to put a stop to iniquitous or mischievous trusts or combinations. They mean, said he, to go on, to assert the law, even if that should involve-and this was a kind of anti-climax - amendments of the legislation year after year. That is what I complain of. That is the attitude of the Government to which I alluded the other day. I am glad that what was said then on both sides of the Senate has stirred them up to consider the matter. I stated then that their attitude reminded me of the class of American politicians who are apt to say, "I am for the law, but agin' its enforcement." That was the only reproach which I offered. What I said was, in effect, that the Government seemed to believe too much in the virtue of theprinted Statute, and too little in the efficacy of carrying it into effect. I thought, and still think, that, with regard to the particular matter brought under the notice of the Senate on that occasion by Senator Millen, there was quite sufficient to justify the initiation of proceedings, if the Government thought that proceedings under that particular Act were applicable. Of course, upon that point they must be guided by their own law officers. I consider that there was ample provision in the existing law to deal with that particular case. I am obliged to the Vice-President of the Executive Council for pointing out the limitation upon the power of discovery in section11 of theprincipal Act. It is quite true that that limitation does exist, but there would have been no such limitation if the Government, through their AttorneyGeneral, had sanctioned the taking of proceedings by some individual - by for instance, those who were refused coal.


Senator Guthrie - And who had themselves refused others.


Senator Sir JOSIAH SYMON - Do not let us introduce any matter of mereprejudice. Let us deal with the question in a business-like way.


Senator Guthrie - Those are the facts.


Senator Sir JOSIAH SYMON - Probably. I am not questioning that position, but if the facts were as reported in the newspapers - and the persons who made those statements would have been bound to depose to them when placed in the witness box - the existing legislation was amply sufficient to meet the case. I referred on that occasion to the provisions of section11 of the principal Act, and I frankly acknowledge that the limitation to which the Vice-President of the Executive Council refers does exist, but that could have been got over. The Government were entitled to say, "If you who make these complaints in the press are personally injured, as you must be if your complaints are well founded, we will sanction your taking proceedings, and there will be no bar."


Senator Best - We would quickly sanction the taking of proceedings.


Senator Sir JOSIAH SYMON - Then why do not the Government call upon those people ?


Senator Best - I pointed out on the day in question that we would quickly give our sanction.


Senator Sir JOSIAH SYMON - If those people say," We are injured by this action on the part of the Coal Vend," there are two courses which the Government might take. They might either institute' proceedings themselves, or say to those people, " You are making these complaints. You say you are injured. Take proceedings, or else we will have nothing to do with it. We will consider that it is all a sham."


Senator Best - They will not do it.


Senator Sir JOSIAH SYMON -If they will not do it, why should the Government immediately say that the existing legislation is insufficient ? The legislation is amply sufficient.


Senator Colonel Neild - The Government will not even employ an accountant to collect their own revenue in the harvester case.


Senator Sir JOSIAH SYMON - At any rate, the Vice-President of the Executive Council knows that it was only in that respect that any remarks of mine which he regarded as reproaches were used. Then my honorable friend says, "We have had this Act, and we all thought that it was going to meet the cases which were then under the contemplation of the Legislature." One of my main objections to the Bill which is now an Act was that it sought to interfere - and this is a matter to which my honorable friend referred in passing -with the rights of the States, because it not merely dealt with foreign corporations, but embraced trading or financial corporations formed within the Commonwealth. As at present every State has its own law with regard to the establishment of companies and the formation of corporations, it was pointed out that if a law of this kind were, applied within the States you might have under State jurisdiction a combination of individuals on one side of the street carrying on a mischievous business to the detriment of the community, and on the other side of the street a combination of corporations which the Commonwealth legislation professed to touch, while it could not touch individuals who were doing mischief, lt was shown that the law was one-sided in that it dealt or attempted to deal only with corporations. I mention that in passing, to show that the objections taken to the Bill which is now an Act were not exactly those to which the VicePresident of the Executive Council refers as a justification for this measure, but were taken very largely because of the inequality and unevenness of the legislation, and its practical inapplicability to that sphere - the States sphere - which it was intended to cover, and where, if it worked at all, it would produce those anomalous results to which I have, casually referred. Having mentioned those general matters, the Vice-President of the Executive Council commends this Bill because he says that it introduces no novelty in our legislation hi relation to matters of this sort. That statement was not very well considered or well-advised. The provisions of this Bill, are, I venture to say, in relation to this subject-matter, absolutely unique. Similar provisions do not' appear on the statute-book of any. other country, so far as I am aware. I took the liberty of interrupting my honorable and learned friend to ask him whether there was any American legislation like this. The honorable senator said, in reply, that he was going into the matter very thoroughly, and I anticipated that he would mention some) legislation corresponding to it. But the honorable senator mentioned none. He sat down without submitting to the Senate anything at all parallel to the clauses in this very short Bill in relation to the subject- matter with which it is supposed to deal. The honorable senator referred to the provisions of the Inter-State Commerce Act of America - and let me say parenthetically that if there is any country in which we could expect to find a precedent for legislation of this description, it is that land of rings, trusts and combines, the United States of America. The Vice-President of the Executive Council will probably agree with me that we need not look for help in this matter to the legislation of any' other country, and that if we "do not find such legislation in the United States we are not likely to find it anywhere else. The honor, able senator referred to the Inter-State Commerce Act, and to the powers conferred upon the Inter-State Commerce Commission by the original Act of 1887, and the Act passed last year in the United States. The first observation to be made in this connexion is that the American Inter-State Commerce Commission is a Court. It is a tribunal, and the power given to that body to call for evidence of every kind, for the production of books belonging to the parties who come before it, or might come before it, are powers incidental to those of a tribunal that can regulate and control a matter of the kind. It is an extension of just the same power as that which is contained in section 11 of the Australian Industries Preservation Act, with the limited scope which Senator Best has rightly pointed out. Once a matter comes before the Court, so that on its responsibility the Court can say whether or not a particular discovery should be made, I should be prepared in every way possible to assist the Vice-President of the Executive Council in securing the fullest powers of discovery, and in taking away all privileges in regard to statements likely to criminate.


Senator Best - The point I was making was that the investigations made by this Bureau of Corporations, which forms portion of the machinery of the InterState Commerce Act-


Senator Sir JOSIAH SYMON - No, my honorable friend is mistaken.


Senator Best - Perhaps the' honorable senator will permit me to finish what I wish to say. I thought he was referring to the Bureau of Corporations for the moment. Their investigations made it possible for the prosecution of the Standard Oil Company subsequently to take place.


Senator Sir JOSIAH SYMON - I am not referring to that, and I do not know why the Standard Oil Company should have been introduced. It is like King Charles' head, and, perhaps, a very fine thing to refer 'to on the platform.


Senator Millen - It is the awful example.


Senator Sir JOSIAH SYMON - But it has nothing to do with the point with which we are dealing. I remind the VicePresident of the Executive Council, as' I ventured to do the other day, with the assistance of Senator Needham, that the prosecution of the Rockefeller concern was not under the Inter-State Commerce Act, or the Sherman Act, but under a later Statute which had relation to the specific matter, and made it penal to procure rebates as defined by the Act.


Senator Pearce - But it is one of the anti-trust laws of America.


Senator Sir JOSIAH SYMON - Yes, but a law passed specifically for this purpose, and I think very properly. The difficulty with respect to these rebates, as Senator Best has pointed out, cannot possibly arise here, because the railways all belong to the States Governments.


Senator Pearce - Yes ; but we can have shipping rebates.


Senator Sir JOSIAH SYMON - That is so, and doubtless the reference is to the shipping ring which Senator Guthrie de, fended just now, and whose operations, I think, require investigation more than anything else within the borders of Australia. But if these combinations and others enumerated by Senator Best, who, I think, mentioned particularly a confectionery trust, do exist in Australia, it only shows either that no attempt has been made to enforce the provisions of the Australian Industries Preservation Act, or that they have not frightened people from entering into improper combinations. I was referring to the fact that the position of the American Inter-State Commerce Commission under the Inter-State Commerce Acts of 1887 and 1906 has no bearing upon this particular subject, because, in this Bill, what is proposed is that before a prosecution is commenced there may be an investigation of the whole of the books and affairs of a trading corporation or firm, because it is not limited to corporations except in so far as there may be a limitation imposed by the original Act. Under this Bill, before any proceedings are commenced, persons may be obliged to answer questions and produce documents under a penalty of £50, merely if . the Comptroller-General believes - and it does not say on . what grounds or whether they are to be reasonable grounds - or thinks that an offence has been committed. I say that there is no parallel to that kind of legislation anywhere. I have said, that I am prepared to assist in every possible way to give these powers to a Court after proceedings have been instituted, just as in America these very wide and drastic, powers have been given to the Inter-State Commerce Commission, which is a Court.


Senator Lynch - The Supreme Court in the United States often sets aside the decisions of the Inter- State Commerce Commission..


Senator Sir JOSIAH SYMON - Just so. It is, I suppose, subject to the jurisdiction of the Supreme Court of America as the Inter-State Commission provided for in our Constitution is, in matters of law, to be subject on appeal to the jurisdiction of the High Court. Section 20 of the Inter-State Commerce Act of 1906 provides that - '

The Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this Act.

That is under the control of the Court, which is called the Inter-State Commerce Commission -

And from the owners of rail-roads engaged in Inter-State commerce as defined in this Act. To prescribe the manner in which reports shall be made and require from such carriers specific answers to all questions on which the Commission may need information.

Then is provided the details which shall appear in the annual. report, just as in our Companies Acts, and particularly under the Victorian Act, every company is required to supply under statutory declaration by its directors a full statement of its position. Under this Bill what we are asked- to do is to hand over to a Government officer who is not a Court, and is not vested with the responsibility of a Court, the power, before any proceedings are instituted, to harass every trader, merchant, or manufacturer throughout the length and breadth of the Commonwealth. This may be done, although no such proceedings may ever be instituted.


Senator Millen - Or to abstain from the exercise of these powers.


Senator Sir JOSIAH SYMON - And the converse is, I think, just as reprehensible. This Government officer may abstain from the exercise of these powers in circumstances which, perhaps, might be held to justify proceedings. I cannot imagine any provision which more urgently requires some stronger justification than that which has been- submitted by Senator Best. Naturally the honorable senator referred to the only country where they might expect to find some precedent for this legislation, but he has not been able to indicate anything of the kind. I draw a great distinction between the giving of this power to a Court and to an executive officer of the Government. If is proposed in this Bill that merely on his belief, and not upon evidence or after hearing the parties, a

Government officer may, without the knowledge of the man whose books are to be exploited, send three or four officials to a manufacturer's factory, or a merchant's counting-house, some fine morning, to investigate the whole of. his affairs. This I consider a terrible menace to the traders and manufacturers of the country, and this action may be taken on no ground except that the officer believes that an offence has been committed against the provisions of the Bill.


Senator Findley - If we had such a power just now, we should have three or four successful prosecutions instituted.


Senator Millen - We might have had them without this power if the Government had moved in the matter.


Senator Sir JOSIAH SYMON - Certainly we might. I put it to Senator Findley that under this Bill there might be a thousand men harassed throughout the Commonwealth, whilst only one prosecution might follow. Where proceedings are actually commenced, I say we might make the law as drastic as we please for the purpose of securing evidence. We might put the men charged in the box, and make it obligatory on them to answer questions. We might make it, not merely permissive that they should give evidence in their own behalf, but that they should be compulsory and compellable witnesses for the prosecution. That is the remedy. But I say that if we make the provision set out in this Bill, we may harass a thousand manufacturers and traders of all kinds, and then have no prosecution, or only one.


Senator Lynch - What would the honorable senator do with people who allege grievances and make statements in the press, which they will not afterwards substantiate ?


Senator Sir JOSIAH SYMON - We might have a provision to penalize persons who make such statements with the object of bringing the law into operation and do not substantiate them. I agree that it is most mischievous that statements should be made by irresponsible persons to the press, and agitations got up without foundation. What I am afraid of is that if such an agitation is got up, there is under this Bill endless possibilities of inflicting injury, inconvenience, and a harassing condition of affairs upon scores of persons against whom there is no possibility of an offence being proved. The Government sends these three or four officers, who are to act as detectives, into the counting; houses and offices of the manufacturers and merchants all over the country, simply because the Comptroller-General thinks or believes - it . may be without any grounds- whatever-


Senator W RUSSELL (SOUTH AUSTRALIA) - The Bill does not state that.


Senator Sir JOSIAH SYMON - Yes, itdoes.


Senator Best - Such things do not takeplace under the Customs Act.


Senator Sir JOSIAH SYMON - Certainly they do not; but the worst of it isthat .under this Bill a man may be sub- 'jected to all these disadvantages without having an opportunity of proving his innocence. He would be injured by the information being 'spread all over the place that a bevy of officers from the Department had been overhauling his affairs.


Senator Findley - Does not the honorable senator think that there is a tendency to exaggerate what would happen? The Comptroller-General would not take such action unless he had reason to do so.


Senator Best - Such things do not takeplace under the Customs Act.


Senator Sir JOSIAH SYMON - That affords no analogy for this kind of thing. Is it not possible, under this Bill, for people who are absolutely innocent, anc? against whom such an inquiry is not justified, to be subjected to it ?


Senator Findley - The same applies toevery law.


Senator Sir JOSIAH SYMON - No. If there are any gr'ounds whatever for supposing that an offence has been committed" by all means take proceedings. If proceedings are taken in a Court, a man has an opportunity of defending himself and" showing that there is no reason for them.


Senator McGregor - Would it not savea lot of trouble if information were obtained before the proceedings were commenced ?


Senator Sir JOSIAH SYMON - I quite agree with that. But it is not proposed, under this Bill, to impose penalties on account of what has taken placeafter investigation before a Court. If theComptrollerGeneral thinks that an offence has been committed - the Bill does not say upon reasonable grounds, or after hearingevidence, or after calling the man who is accused before the Comptroller-General: - a> penalty may be imposed.


Senator Lynch - A complaint would have to be made before the fine was imposed.


Senator Sir JOSIAH SYMON - No. Let my honorable friend look at clause 4, proposed new section 15B.


Senator Lynch - What about 15c?


Senator Sir JOSIAH SYMON - Under 15B the Comptroller-General may, entirely on his own motion-


Senator Pearce - Where is the penalty?


Senator Sir JOSIAH SYMON - It says " Penalty, £50."


Senator Pearce - That is if a person refuses to' answer questions or produce documents.


Senator Sir JOSIAH SYMON - If he does not produce documents or give information this penalty may be imposed. He may have an absolutely good reason for refusing to answer or to produce a document. But if he refuses an answer to a question put to him1 by the ComptrollerGeneral, or his officer, he is liable to a penalty of £50.


Senator McGregor - The ComptrollerGeneral, or his officer, will have to go to Court before the penalty can be imposed.


Senator Sir JOSIAH SYMON - The penalty is for refusing to produce documents or answer questions.


Senator McGregor - Quite right, too.


Senator Sir JOSIAH SYMON - But the Court cannot go into .the reasons for refusing.


Senator Best - Yes ; ' the person only has to pay .the penalty if the Court awards it against him.


Senator Sir JOSIAH SYMON - Where does the Bill say that the Court can investigate whether the person has a good reason for refusing?


Senator Best - The Court has to inquire whether an offence has been committed.


Senator Sir JOSIAH SYMON - And the offence is " refusing to produce documents or answer questions." There is nothing to entitle the Court to inquire whether the person has a good reason for refusing or not. What is the offence? The offence is failing to answer questions or produce documents. The only judge is the ComptrollerGeneral.


Senator Best - Oh, no.


Senator Sir JOSIAH SYMON - But the clause says -

No person shall refuse or fail to answer questions or produce documents when required to do, in pursuance of this section.

Penalty : Fifty pounds.


Senator Pearce - We must assume that the Comptroller-General would have reason for exercising such a power before he would consent to exercise it. He is to act as a judge in the matter.


Senator Sir JOSIAH SYMON - The Comptroller- General is not even made a judge. If a person says, " I must decline to answer that question," he is liable to a penalty of £50, and the magistrates, before whom the proceedings are taken with a view of enforcing the penalty, will have to impose it without inquiring into the validity of the man's reason one way or the other. My desire is, as I have said, once the proceedings are begun, to assist in every way in giving the most ample powers to the Court to require evidence to be produced. I agree with Senator Lynch in that respect. But if this means, not that evidence is to be obtained in a proper manner, but that the Comptroller-General is to make use of the press, by indicating paragraphs which have been published, that is the sort of evidence that I would not give five minutes' attention to.


Senator Findley - It is because the Government have listened to such complaints that we have before us this amending Bill, which will do an immense amount of good.


Senator Sir JOSIAH SYMON - I think it is a very mischievous Bill - a Bill which, if it becomes law, will simply cause a very serious interference with the trade of' this country. The Minister's answer to that is that we can trust the ComptrollerGeneral not to proceed except when he has good grounds. My view is that we ought not to give these extended powers. It would be very much better to restrict the powers within reasonable limits, so that no one can abuse them, particularly when we are dealing with that which is so sensitive as the trade and commerce of the country. Proposed new section 15c in clause 4 deals with the action of the Comptroller-General when a complaint has .been made to him in writing. There, again, it does seem rather unfair that the Comptroller-General should act upon a complaint, if he believes it to be well founded, without any hearing of the other party. We should surely give him an opportunity of having the party before him, and hearing what he has to say, before these very strong powers are put into force. There may be no foundation for the complaint. But the complaint having been made, the Comptroller-General is to send his officers to explore the books and the accounts of the accused.


Senator W RUSSELL (SOUTH AUSTRALIA) - To work up the case and get all the evidence that can be obtained.


Senator Sir JOSIAH SYMON - The object of a person who has given information may be served by harassing his rival. His object may be served by putting the officers on the track or by smudging the reputation of a perfectly honest manufacturer or dealer; because it would smudge his reputation if it became known.


Senator McGregor - The honorable senator must take the Comptroller-General of Customs to be a very simple man.


Senator Sir JOSIAH SYMON - I take him to be a Government officer. That is all I take him to be,, and I say that these powers are such as ' ought not to be en-" trusted to any Government officer whatever. My honorable friend Senator Best sought to show that such powers as this Bill proposes to confer are now exercised in the United States. I have shown that the special powers conferred upon a tribunal like the Inter-State Commission of the United States have no relation to such powers being conferred upon a Government officer. My honorable friend also suggested that there was some precedent for these powers, and referred to the Commerce and Labour Act passed by Congress in 1903.


Senator Millen - Is that the Act creating the Bureau?


Senator Sir JOSIAH SYMON - Yes. But under this Bill what is proposed to be done is to confer these extensive powers upon the Comptroller-General. For what purpose? For the purpose of litigation - for the purpose of initiating and carrying on proceedings with a view to the imposition of penalties. But my honorable friend Senator Best did not mention that the American Act establishing the Bureau of Corporations was not passed for the purpose of obtaining information with a view to litigation at all.


Senator Pearce - The Bureau was established under the 1903 Act.


Senator Sir JOSIAH SYMON - Yes ; but it was not established for the purpose of securing evidence with a view to litigation.


Senator Best - I showed how, in Amenca, they make good use of the information obtained for the purpose of prosecutions.


Senator Millen - What does the Department get the information for?


Senator Best - The Department gets it ; that is the point.


Senator Sir JOSIAH SYMON - I am not prepared to say on the spur of the moment whether any abuse has taken place in regard to the information obtained by the Bureau of Corporations. All that I say is that if the Bureau of Corporations obtains the information for the purposes indicated and expressed in the American Act, it would be improper to use -it for any other purpose. What the Act was passed for was a totally different purpose. It was passed with a view to get information by means of -

Diligent investigation into the organization,' conduct,, and management of the business of any corporation, joint stock company, or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers, subject to " An Act to regulate commerce" approved 4th February. 1887. and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.


Senator Millen - It was what we call a Royal Commission.


Senator Sir JOSIAH SYMON - That is what it was. It was a kind of Royal Commission to obtain evidence with a view to legislation. And that, of course,- is a perfectly proper thing. It is quite right to inquire with a view of obtaining information to be submitted to Parliament in considering legislation. But it is not a proper thing to make such an inquiry the foundation for an investigation . into the books of trading concerns, manufacturers, or merchants, with a view to prosecutions. Of course, if the information becomes public, we cannot prevent people making use of it in any way thev please. But that is not the object. The Bureau was established, like our own Tariff Commission, for the purpose of netting information to enable Parliament to legislate. The information becomes public just in the same way as the information obtained by our Tariff Commission becomes public -

It shall also be the province and duty of the said bureau, under the direction of the Secretary of Commerce and Labour, to gather, compilepublish, and supply useful information concerning such corporations doing business within the limits of the United States as shall engage in Inter-State commerce b-tween the United States and any foreign country.

The Inter- State Commission has nothing to do with combinations, or trusts, or anything of the kind. All that it has to do with is matters regarding transportation.


Senator Best - It has something to do with trusts. The Act of 1887 specifically refers to them.


Senator Sir JOSIAH SYMON - Only so far as they are common carriers.


Senator Best - Quite so; but it specifically prohibits pools, combinations, and collusive arrangements.


Senator Sir JOSIAH SYMON - Exactly ; but with respect to the business of common carriers.


Senator Best - Of course.


Senator Pearce - That is much more than the freights.


Senator Sir JOSIAH SYMON - They regulate rates both differential and preferential, and rebates', subject, of course, to the powers given in the later Act.


Senator Lynch - What about the differential prices charged for goods intended for a neighbouring State?


Senator Sir JOSIAH SYMON - That has nothing to do with trie Inter-State Commerce Act, which, in America, is . restricted to common carriers. So that, practically, the provisions of that Act are simply an extension of the powers which might be contained in any Act relating to corporations or companies, and the purpose of the Act was really to - gather such information and data as will enable the President pf the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require.

That is literally a proceeding by a body in a situation analogous to that of a Royal Commission, under our system, for the purpose of acquiring information. If we are to be guided or assisted bv preceding legislation, or precedent in other countries', the Minister has mentioned none for our guidance. There is none in that country which, of all others, is a land of rings and combinations, and where we should expect to find an example of such legislation as is now contemplated if there is one to be had.


Senator Guthrie - And none in. Great Britain, which is nearly as bad.


Senator Sir JOSIAH SYMON - Of course there is none in Great Britain, where we should not expect to find it.


Senator Guthrie - Where there are rings and combinations.


Senator Sir JOSIAH SYMON - We should not expect to find it in Great Britain to the same extent as in ' America, which is said to be far excellence a country of rings and combinations. There is none in England, as my honorable friend reminds me, and there is none in America, where certainly we should expect to find it. I do not know whether honorable senators think it is a good thing to embody in a Bill of this kind the principle contained in the proposed new section, 15A, which means practically that every man is to be presumed to be guilty until he proves himself to be innocent. Of course, what it does mean is that the moment a company embarks in business it can be brought into Court as one which is prima facie guilty until it proves its innocence. That is a very necessary thing in many respects, and in many branches of the administration of the Customs Act. But, surely, it is not necessary in matters of this kind, where some effort ought to be made, not by a person who is. communicating irresponsible paragraphs to a newspaper, but by some responsible person, who will get into a witness-box, and, under the sanction of an bath, state facts upon which proceedings may be founded, and unless in a case such as that we ought not to presume any trader to be guilty until he discharges himself of that imputation.


Senator Best - There are qualifications as the honorable senator knows.


Senator Sir JOSIAH SYMON - What is the good of my. honorable friend making that remark ? The qualification is the one which is contained in the Customs Act, and that is that the intent must be proved. The moment a man goes into Court he is presumed to be guilty, and if they fail to prove the intent he may still be thought by the public, or those with whom he has to do, to be guilty of the charge of being engaged in a combination.' I think that we ought to read the Bill a second time, even if only to affirm the intention of the Senate in regard to trusts and combinations which are supposed to be mischievous. But I venture to say that this is a measure without precedent, and one which if passed will prove inimical and hurtful to the best interests of the traders and manufacturers in this country. We ought to be slow to agree to these clauses at all, and certainly slow to agree to them without considerable amendment with a view to their improve, ment.

Debate (on motion by Senator Millen) adjourned.







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