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Senate
20 July 1906

2^nd Parliament · 3^rd Session

EMINENT DOMAIN BILL
PAPERS
AUSTRALIAN INDUSTRIES PRESERVATION BILL
- Second Reading

The President took the chair at 10.30 a.m., and read prayers.

page 1577

EMINENT DOMAIN BILL

In Committee (Consideration resumed from19th July, vide page1523).

Clause 1 -

This Act may be cited as theEminent Domain Act1906.

Senator Sir JOSIAH SYMON (South Australia) [10.32]. - I move -

That the words “Eminent Domain “ be left out, with a view to insert in lieuthereof the words “ Lands Acquisition.”

The term” Lands Acquisition Act “ would shortly describe this measure, lis object is to make provision for the acquisition of lands and lands only, and interest in lands, by the Commonwealth. The long title is -

An Act relating to the acquisition by the Commonwealth of land required for public purposes, and for dealing with land so acquired, and for other purposes connected therewith.

– It has been referred to in the courts. The expression, as the honorable and learned senator has said, may have had its origin in connexion with international public law, but it is known to English .municipal law. The term itself is denned in the Law Lexicons. It is denned in the ordinary English dictionaries. It is not, therefore, a term ‘ that has purely emanated from America It is not a new fangled Yankee notion which had no existence until twenty-five or thirty years ago, and I venture to say that if the only criticism that could be levelled at the title was that it was an importation from Yankee land, that would be no demerit in itself. But I find in the Encyclopædia of the Lotus of England, a recent publication, a chapter under the heading of “ Eminent Domain “ (page 486)., where the term is defined. This work says -

The right of the State or the Sovereign to its or his own property is absolute, while that of the subject or citizen to his property is only paramount. The citizen holds li is property, subject always to the right of the Sovereign to take it for a public purpose. This right is called “ eminent domain.”

It goes on to say -

The exercise of this power by the State, whether directly or by delegation, is known in American law as the exercise of the right of “eminent domain,” which may therefore be defined . 15 the power of the State to take private properly for public use.

Eminent Domain, the right which a government retains over the estates of individuals to resumethem for public use.

Senator McGregor:

– Is that an American publication ?

Senator KEATING:

– No; it is a wellknown English book published by Stevens and Sons.

Senator Millen:

– And also covering Crown land.

Senator KEATING:

– I am not denying that for a moment. In the OxfordNew English Dictionary a reference is made to “ Eminent Domain “ -

Ultimate or supreme lordship; the superiority or lordship of the sovereign power overall the property in the State, in accordance with which it is entitled to appropriate by constitutional methods any part required for the public advantage, compensation being given to the owner.

Then it goes on to say -

A term chiefly used in International Law, and the law of the . United States of America.

It does not say that the term is confined exclusively to the United States, nor is it confined exclusively to international law. This in an authoritative English dictionary, in which the term is first defined as the right of a sovereign or of a State to resume the property of an individual for public purposes, due compensation being given. In an American law dictionary which I have here the term is described at greater length. On page 658 of Bouvier’s Encyclopedia of the Law -or law dictionary - under the heading of “ Eminent Domain,” it is stated -

The phrase “ eminent domain “ appears to have originated with Grotius.

Senator Best:

– In the existing Act the English title is not adopted.

Senator DRAKE:

– We have in all the States Acts dealing with the resumption of land, and in every case in the short title there is something to show what is the subject-matter of the Act. The Minister in charge of the Bill has expressed the fear that the amendment would give rise to confusion as between the Commonwealth Statutes and the States Statutes on the subject. It must be remembered, however, that any person sufficiently interested to search the law on the subject would know that it was to be found in a Commonwealth Statute, seeing that a Federal power was to be exercised, and, therefore, I cannot see that any confusion could arise. Senator Symon* has made it abundantly clear that the short title of the Bill is not the most appropriate that could be selected. I support the amendment on the ground that our Statutes ought to be made as clear as possible to the public, especially those members of the public who are particularly affected. That end can best be attained by adopting a short title which clearly indicates the subject-matter of the Bill, and directs the attention of the public to the fact that the Act which was passed in 1901 has been repealed.

Senator Sir JOSIAH SYMON (South Australia) [11. 2]. - I do not know that, in an ordinary case of a short title, I should be disposed to say another word, but this matter is much more important than perhaps some honorable members imagine. It could not possibly be suggested that I submit this amendment with any intention to be troublesome; my sole object is the simplification of the Bill. I am in no way scared by the use of a term that bears an American mark. We have substantially, and certainly in principle, derived our Constitution from that of the United States; and I have r.o sort of a priori objection to any constitutional or municipal law phrase which may be brought from America, so long as it is applicable, and understandable of the people. The Honorary Minister has given no reason why we should not adopt the simple non-technical expression, “ Lands Acquisition Act,” as a short title. “ Eminent Domain “ is, in essence and on its face, a technical expression, and I am bound to say, without doing any injustice to their learning or knowledge, that there are scores of lawyers in Australia who, if they tumbled across the phrase in an index of Acts of Parliament, would have to refer to one of the many dictionaries consulted by the Minister, in order to ascertain what was meant.

Senator DAWSON:
QUEENSLAND · ALP

AYES: 12

NOES: 15

Majority ……… 3

AYES

NOES

Question so resolved in the negative.

Amendment negatived.

Clause agreed to.

Clauses 2, 3, and 4 agreed to.

Clause 5 (Definitions).

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– Following the usual custom, I move -

That the clause be postponed.

– Senator. Millen will see that if a person has any estate or interest in the land, legal or equitable, he is deemed to be the owner of the land. That is provided for in our definition of “ land,” and that definition includes Crown land. I can assure the honorable senator that I realize .the importance of his observations, that I recognise that persons who have an interest of this character should be in a position to prosecute their own claims, and should not have to rely on the State to do so. I have not the slightest hesitation in saving that no obstacle whatever will be offered to prevent the matter being set right, if necessary, and any proposals which he may have to bring forward discussed on their merits, even though we should pass the other clauses of the Bill before dealing with the definition clause.

Senator Clemons:

– I do not believe that these people have any equitable or legal right, and that is the trouble.

Senator KEATING:

– If the Crown is in such relation with regard to a person in connexion with land, that that person has some promise or other to acquire it from the Crown, but ‘has no title whatever, and no estate or interest in it of any kind, legal or equitable - if, for instance, he is in the position purely of a. promisee, so to speak - we do not desire that the Commonwealth should have- to deal with him. But if he has anything at all which gives him a legal or equitable estate or interest in the land, he will be considered the owner of the land under this Bill, and will be entitled to make his claim directly for compensation as one of the persons affected by the proposed acquisition. Senator Millen will have an opportunity to discuss the matter when we eventually deal with the definition clause, and should it appear that any alteration or the insertion of another clause is necessary, no opposition will be offered to the question being dealt with on its merits. In asking for the postponement of the definition clause, I am but following the usual custom. It is possible that some amendment made in the Bill will involve the insertion of new definitions, and in the circumstances it is desirable that the definition clause should be considered after the other clauses have been dealt with. Honorable senators may be aware that it is the usual practice in Great Britain for definition clauses to appear after the other clauses of a Bill. Here we have adopted a contrary practice, but it has been our custom to postpone the definition clause until after the consideration 6f the other clauses.

Senator Sir JOSIAH SYMON (South Australia) [11.30]. - There are two points I hope to deal with on the definition clause. I pointed out yesterday the great desirability, as a matter of courtesy, thai there should be a. proper recognition of the position of the States, and that the compulsory taking of the Crown lands of a State should be dealt with by a separate Bill. There is no necessity to deal wilh both subjects in the same Bill. I pointed out the desirability, out of courtesy to the status of the sovereign States of passing a separate Bill, and said that I intended to move an amendment upon the second definition in the clause. I do not wish to raise difficulties in the way of postponing the clause if that opportunity will be open sufficiently at a later stage. Here it would come conveniently, because if the definition of “Crown lands.” were eliminated it would indicate that the Senate desired that the provisions with regard to the compul- sory taking of Crown land from a State should be dealt with by a separate Bill, and that a nicer method if possible should be adopted, than that of merely putting a notification in the Gazette, and stating that such notification should take the land away from the State, and vest it in the Commonwealth. There is another point which arises out of the definitions of “ land” and “ owner,”- which terms include a State. We now have an excellent opportunity qf deal- ing with that subject, but if the Minister will indicate that it may be sufficiently done elsewhere, then, of course, I shall offer no objection to the postponement of the clause. Then with regard to tho definition of “public purpose” he intimated yesterday, as we all expected, that it is not intended that the provisions of this measure should a D p 1 v to the land for the Federal Capital Site. I propose to make that quite clear by inserting an exception in the definition of “ public purpose.” Mv honorable friend knows that I entirely accept his assurance, but an assurance is not an Act of Parliament.

Senator Sir JOSIAH SYMON (South Australia) [11.40].- I knew quite well that when the Minister of Defence applied hismind to the subject the difficultywould be solved at once. “ If you put in two or three words,” he says, “that will makeit clear, and will absolve the Government from a promise.” No Ministry likesto give an assurance which, when they happen to go out of office, as they all must do some day or other, may not be honoured. Senator Keating knows that in the case of the Federal Capital’ Site, not merely Crown land, but also private land, will have to be acquired. Whatever may be the case with Crown lands, there is no differentiation if private lands are required for that purpose. Of course, the legal estate will be vested in the Commonwealth, and the registration will be absolutely the same as if it were a private owner. The only difference will be that it will exercise sovereignty over the whole of the area, and the private lands will then become Crown lands of the Commonwealth. I do not think that that would remove the difficulty. The right solution is that which the Minister of Defence has offered to us, and which. I hope we shall all accept. As regards the definition of “ Crown land,” Senator Keating says that it may be best dealt with on the definition clause. As he thinks that ir will hi more convenient to deal with that clause later on, I shall «ot oppose its postponement, because, although it may slightly embarrass us in dealing with,. the machinery owing to the definition of owner to which he has called attention, we still can come back to the clause, and give effect to our view of separating the provisions with regard to States.

Motion agreed to; clause postponed.

Clause 6 - .

The Governor of a State, acting with the advice of the Executive Council thereof, may (by force of this Act and nowithstanding anything to the contrary in the law of any State) -sell or lease to the Commonwealth any Crown land of the State which is required for any public, purpose, and execute any instrument or assurance for the purpose of granting, conveying, or leasing the land to the Commonwealth.

Senator Sir JOSIAH SYMON (South Australia) [11.44]. - In my second-reading speech I offered some observations with regard to this clause. The provision, as it -stands in the existing Act, is-

Senator Best:

– In sections 3 and 5.

Senator Sir JOSIAH SYMON:

– No ; section 3 gives power to the GovernorGeneral to acquire.

Senator Best:

– And section 5 deals with the Governor of any State.

Senator Sir JOSIAH SYMON:

– The honorable senator will find that section 3 is subdivided and reproduced in clause 15 of the Bill, while clause 6 is a reproduction of section 5, which reads as follows: -

In the case of any Crown land of any State purchased under this Act, the Governor of the State may grant such land in the name of the King to the Commonwealth.

That is the simple power given to the Governor of a State by virtue of the Act, to sign the document. That, of course, is purely a, Ministerial act. In this Bill a very grave departure has been made. There is no comparison between the clause and the section, although the marginal note of the clause refers to section 5. Under this provision there is a distinct interference with the self-governing powers of the State. It relates, as was said yesterday in the course of the discussion, to’ the selling of land privately - that is, not to taking it by compulsion. It declares that the Governor of a State may sell or lease to the Commonwealth any Crown land - by force of this Act, and notwithstanding anything to the contrary in the law of any State.

That is to say, suppose a State Parliament had passed an Act forbidding the alienation of any particular piece of land, the Executive, owing no responsibility to the Commonwealth, owing responsibility only to its own Parliament and its own electors, would be entitled to set the State Act at defiance, and enter into an agreement to sell that land to the - Commonwealth. I say, first of all, that, if anything of that sort is to be done, it must be done by the Executive of the State under its responsibility to its own Parliament and its own people. If land subject to an Act of Parliament of that kind is required by the Commonwealth, the Commonwealth can, of course, obtain it by compulsory taking under the subsequent provisions of this Bill. But it is not necessary that the Commonwealth should insert a provision enabling the State Government to set the State laws at defiance. The point is that this provision takes away the responsibility of a. State Government to its Parliament, by enabling the State Executive voluntarily to do something in defiance of an Act of its own Parliament-‘ under the authority of a Commonwealth Statute. I venture to think that no State would willingly submit to the Commonwealth Parliament imposing upon the Executive of the State duties of this kind, and taking away its responsibility to carry out the State laws. The Commonwealth power under the right of Eminent Domain, or sovereignty, may take the lands of a State, no matter for what purpose thev have been dedicated, or reserved, or restricted bv the operation of a State Act. But the Commonwealth Parliament has no right to take away from the States Parliaments their control over their own Executives, and to relieve them from the duty of consulting their own Parliaments on the subject. Honorable senators have only to read the clause to see how far-reaching it is. I do not know why it should have been put -in this shape, and why the old section should have been changed/if the object was merely to enable the Governor of a State to do a Ministerial act by signing a grant without an agreement having been entered into. Of. course, a State Executive can <enter into an agreement voluntarily, but subject to its responsibility to its Parliament. But if this clause were passed, its action would not be subject to its responsibility to Parliament at all, because here it is said that, notwithstanding anything in the law of any State, the Government of a State may sell, lease, or grant land to the Commonwealth. If the Commonwealth is not to interfere with the self-governing powers of the States, it would be better to restore the clause to the form in which this provision stands in the existing Act, enabling the Governor of a State to execute the grant ; or else it would be advisable to strike it out altogether, because the mode of executing a grant, or by whom it is to be executed, depends upon the local law. I doubt whether we ‘have power to direct the Governor of a State, or to empower him to execute a grant. That, however, is a more or less harmless point. The real point is that we do not want to see an interference with a State power, or to lessen the responsibility of a State Executive to its own Parliament by a Commonwealth law, unless it is absolutely essential.

Senator BEST:
Victoria

.- I have had an opportunity, whilst Senator Symon has been speaking, to look up the existing law and the proposed alteration, and I must confess that I do not think that the new clause, as to its legal effect, takes us any further than the old section did. I read together sections 3 and 5 of the existing Act. Section 3 provides that -

The Governor-General may agree with the owners of any land which is required for any public purpose, and with any State where such land is Crown land of the State, for the absolute purchase by the Commonwealth for a consideration in money or its equivalent of such land, or for the exchange of such land for any land of the Commonwealth.

Senator BEST:

– Subject to the local laws. That would be very sound if we had no means of overcoming the difficulty. I contend that the. provision in the Constitution Act which says that the Commonwealth may acquire property practical]])’ means; that we may acquire the absolute

Tight to property free from every reservation. In this Bill it is recognised that that is the real and true construction, because it provides that, in the case of a compulsory resumption - the notification shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the -notification.

No one in the Chamber doubts for a moment that we have the right to cancel all forms of reservations contained in any document in reference to any land compulsorily acquired. Now it is said that we want to provide for the acquisition of land by voluntary arrangement. The true method, I submit, is to enable the GovernorGeneral to acquire the land, and then to declare, as we have done, that when once the land is so acquired, the notification of the agreement in the Gazette - shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.

– It is necessary that we should do as we have hitherto done, and that is, give the Governor-General the power to act. Section 3 of the present Act says -

The Governor-General may agree with the owners of any land which is required for any public purpose, and with any State where such land is Crown land of the State, for the absolute purchase by the Commonwealth for a consideration in money or its equivalent of such land, or for the exchange of “such land for any land of the Commonwealth.

All that we need to do is to add to that provision the following words : -

The notification of such agreement in the Gazette shall have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.

That would completely get rid of the objection which the Minister has urged. No one doubts that we can enact that provision. Why, then, should we unnecessarily create friction?

Senator McGregor:

– We are not creating friction.

Senator BEST:

– My honorable friend must see that the clause, if enacted in its present form, would create friction. To begin with, why should we alter the phraseology of the existing provision? If it is defective, there is a way of amending the defect. If we prescribe what the power of the Governor of a State shall be, the provision may appear inoffensive in this Bill ; but there may be times when, if the precedent were followed, it would bear quite a different aspect, and lead to friction. I have proposed a reasonable and effective means whereby the difficulty suggested by the Minister could be overcome.

Senator PULSFORD:
New South Wales

– The clause as it stands appears to me to be highly offensive to the States, and I have no hesitation in saying that it would be so regarded by New South Wales. I wish to draw attention to a remark made just now by Senator McGregor, because I think it will explain a little error into which he has fallen. He said that the. wording of the clause would enable some technical defects to be overcome. When it bestows upon the Governor of a State the power of making an arrangement with the Commonwealth contrary to the law of the State, it goes far beyond the mere correction of technical defects, and it is that to which I object. I hope that a very clear amendment will be made, so that what at present is very highly objectionable may be removed. I cannot understand the representative of any State seeking to pass a clause worded as this is. Although I have no doubt that it was drafted with very good intentions, still it is capable of very evil results.

Senator Sir JOSIAH SYMON (South Australia) [12.45]. - 1 thought that the Honorary Minister would, after what has fallen from Senator Best, indicate his acceptance of the amendment suggested. It seems to me to be one that would meet the case. The matter to which attention has been called certainly involves a very grave question of method, to put it upon its lowest ground. I hope that, after the lucid explanation of Senator Best, Senator McGregor will begin to have a glimmering of understanding as to what the clause means. He undertook, at the close of his animated but not very clear speech, to lecture honorable senators1 on this side of the Chamber as to their lack of understanding of the meaning of the clause.

Senator McGregor:

– I complained of waste of time.

Senator Sir JOSIAH SYMON:

– The honorable senator wastes the time of the Senate with senseless interjections more than any other member of it. I always find that those who are in the habit of suggesting that others do not understand provisions are themselves wandering in a kind of Cimmerian darkness. I wish to enlighten Senator McGregor a little, because I believe that he is a man who is occasionally susceptible of instruction. I will point out what he has entirely overlooked - that in this Bill there is in the first place a power for the acquisition- of land by mutual agreement, and, in the second place, a power for the acquisition of land by compulsion. This provision is not intended to have any relation to the acquisition of land by compulsion. It has relation to the acquisition of land by agreement. The power of a person to dispose of land by agreement depends upon his ownership and interest in it; and if he is a person occupying an official position, like the Governor of a State, it depends upon the authority given to him by the Parliament of the State, and no one else. In a self -governing country the authority of the Governor is derived from the Parliament of the State. He has certain instructions from the Sovereign, who appoints him to his official position, but his power to deal with Crown lands is now, under the self-governing Constitutions which we possess, dependent upon the approval of Parliament. In relation to negotiations for the acquisition of land which may be entered into by the Commonwealth with a State. all that the Commonwealth can do is to empower its agent - using that term as applicable to the Governor-General - to do what we think he ought to do. If at present power to enter into an agreement to acquire State land, or land held by a State Government, is not vested in the Governor-General, we can confer that power by legislation. But we cannot confer that power upon the Governor of a State. The authority of the Governor of a State to deal with the land of the State depends upon the power the State Parliament gives to him. The Statehas its rights, just as the Commonwealth has its rights, and we have no power toinstruct the Governor-General to give directions to a State Governor. He must receive those instructions from the Parliament of the State to which he owes allegiance, subject to and in accordance with the allegiance that he owes to the Sovereignwho appoints him. The vice of this provision, as Senator Best has pointed out, is that it involves an assumption bv thi* Commonwealth of an authority to confer the power of selling and disposing of State lands upon the Governor of a State. I say emphatically that we do not possess that power, and cannot exercise it. We- have no right to do it. Further, if we could do it, I do not believe that we ought to do it. We have no right to dictate to the States Parliaments and Executives. And even if we had the power we ought not to exercise it in this particularly offensive manner. My honorable friend Senator McGregor has said that he does not see that it is offensive. He says that it is particularly harmonious. The particularly harmonious way in which we are acting is for the Commonwealth Parliament, without so much as a “by your leave” to the people of a State, to say to the Governor of a State that he is to enter into an agreement with the Commonwealth to part with the lands of the State in spite of the provisions of any local Act of Parliament.

Senator McGregor:

– No; because the State Executive would take very good care not to act except under the authority of an Act of Parliament.

Senator Sir JOSIAH SYMON:

– I am talking of the legislation which we in a highhanded manner are seeking to pass for the purpose of pretending to give power to the Governor of a State to do something which only the State Legislature can authorize him to do. We can, by virtue of the law, say that, when we acquire land under the Constitution, all dedications and all reservations shall be wiped away, and that we require it in absolute unconditional fee-simple. But we cannot give a power to the Executive of a State to override the Acts of Parliament of a State in the way that we are asked to do. It is a silly thing to attempt. It is a contemptible thing for this Parliament to put upon the statutebook something which, if it is not effective, is useless.

Senator O’Keefe:

– Would not the Executive of a State be morelikely to consider the wishes of a State than the wishes of the Commonwealth if those wishes were in conflict ?

Senator Keating:

– Hear, hear !

Senator Sir JOSIAH SYMON:

– We have been lectured from the stand-point of harmonius relations as to the necessity of coming to a mutual agreement. We are all at one as to that. There is nothing to prevent an agreement being entered into between the Commonwealth and the State. Senator Best’s proposal would absolutely provide for it. It is provided for in the existing law, in the section which Senator

Best read, which says that the GovernorGeneral may enter into an agreement with a State. But the power of the State to enter into that voluntary agreement depends upon its own law, which we cannot alter.

Senator O’Keefe:

– The Executive of a State would not be likely to do anything against the wishes of that State.

Senator Sir JOSIAH SYMON:

– Why should we assume that we have the power to compel it to do so? I am here representing one of the States, and I say very emphatically that we ought to be extremely solicitous to adopt a form which will carry out our intention without creating offence. We are all agreed as to the desirableness of mutual arrangements. But it will be impossible to carry out those mutual arrangements if we have the impertinence to interfere with a State Parliament, by saying what power the State Governor shall have in selling State lands. If we could do that, it would be a very serious thing. I contend that we cannot. This clause has been inserted inconsiderately. There can be no question about that.

Senator Keating:

– It has been inserted after a good deal of consideration.

Senator Sir JOSIAH SYMON:

– The existing section is an admirable one. If it were thought desirable, dedication and reservation could be made to disappear in the manner proposed in the suggested amendment. I scarcely think that that is necessary : but whether it is necessary or not, we do not get over it by giving the Executive of a State under a Commonwealth Act of Parliament power to override its own State legislation.

Progress reported.

Sitting suspended from 1 to 2 p.m.

page 1597

PAPERS

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

– I beg to lay upon the table the following papers: -

Copies of plans in connexion with the reports on proposed sites for the Federal Capital in the Yass-Lake George district.

I do not propose that the plans be printed for circulation, but that they be hung up in convenient places in the corridors of the Senate. I understand that the expense of printing would be rather disproportionate to the advantages gained.

Senator Dobson:

– By whom are the reports provided in the first place?

Senator KEATING:

– I think they are provided by- the State of New South. Wales.

Senator PLAYFORD laid upon the table the following paper : -

Further memorandum on collection of digested cases of the United States Federal and State Courts relating to trusts, and a tabular digest of the United States anti-trust legislation.

Ordered to be printed.

page 1598

AUSTRALIAN INDUSTRIES PRESERVATION BILL

Second Reading

Senator PLAYFORD:
Minister of Defence · South Australia · Protectionist

– I move -

That the Bill be now read a second time.

Mr. Tregear, with a view to clearness, divides that definition into three parts, dealing respectively with pools, rings, and trusts. The definition of “ pool,” according to Mr. Tregear, is -

A “pool” is a combination or agreement between certain persons or firms, in order to influence the market by controlling output, dividing territory, extending trade, and sometimes determining prices.

A “ ring,” says this gentleman, is -

A “ring” is a similar combination, but devoted more especially to controlling sellingprices.

For instance, a number of manufacturers of one or several articles may agree to form a “ ring,” one condition of which is that those articles shall not be sold below a certain price. A “ trust,” according to Mr. Tregear, is defined as follows: -

A “ trust “ is a corporation or combination of corporations into unity for the purpose of amalgamating plants and properties, economizing expenses, buying and selling to best advantage, ousting competition, and controlling markets.

The trusts that are best known, and, I suppose, the largest in the world, are those of the Standard Oil Company, the Consolidated Tobacco Company, and the Anthracite Coal Company.

Senator Pearce:

– What about the Beef Trust ?

Senator PLAYFORD:

– There is the Beef Trust, and a great many others.

Senator Croft:

– Does Mr. Tregear quote authorities, or he is expressing his own opinion ?

Senator PLAYFORD:

- Mr. Tregear, in the first place, quotes the dictionary definition, and then proceeds to divide that definition into the three parts I have mentioned - pools, rings, and trusts, all of which act in different ways, although their object is practical lv the same, namely, to get a monopoly. Trusts are not necessarily all bad, in the sense that in their operations they produce injurious results to the public. It entirely depends on how a trust is conducted whether or not a bad effect is produced. Trusts naturally desire to get as- much profit as possible - that is human nature - but all trusts are not worked’ absolutely to the injury of the public. Mr. Tregear points out -

The great enterprises which have legitimately reduced the cost of production and have won a place for American enterprises in the international industrial world should not be strangled by adverse legislation, but only controlled by national regulation. To strike down industrial or commercial combinations, with the result of closing factories and mines, and turning workers by thousands into the streets, would’ be a calamity whose extent could hardly be imagined.

Mr. Tregear then makes a quotation from some remarks by the Hon. ,E. Morrell, of the House of Representatives, Washington,, as follows: -

The trusts are not a cancer in the body politic : they are not an excrescence on the body politic; they are a part of the vital principleof the body politic. Thev need to be properly regulated and watched and controlled, just the same as any vital organ of the body needs to be ; but, in like manner, they need to be guarded’ from violent injury.

In reference to the question of patents, we have only one monopoly that is recognised by law, and that is the monopoly of patentees. They may sell their rights to manufacturers, but it has been found that trusts are sometimes formed to defeat the object of a patent. They may actually pirate the patentee’s invention, and, having done so, defend their action in the Courts against him, or offer him some ridiculous price for it, and otherwise injure him very considerably. I do not know that I need quote anything further on that particular point. These are the charges that are brought against trusts. I quote now from page 8 of this paper -

One of the methods employed by trusts to raise the va,lue of their properties and depreciate those of others has been the illegal use and misuse of patents. Combinations have used their political and pecuniary influence to prevent patents applied for being granted, and in order that they might use the invention as being unpatented. A Court case disclosed that associated railway companies made an agreement for the purpose of restraining individual owners of patents from freely negotiating sale of interests in their patents, and from collecting compensation from any member of the association who has appropriated a patent invention. The combination was to use all means against any person bringing a suit against one of these members, was to collectively “boycott” or refuse to negotiate with the patentee, and not to settle a suit or claim so long as a similar suit or claim was maintained againstany other member of the association ; this, of course, to cut off “ the sinews of war “ from the opponent. (See Pettibone, the. United States, 13 “ Supreme Law Reporter,” 542,1893.) Thus, any competition for a patent is suppressed, and the combination either uses the patent without payment or purchases it at its own price. As the law of the United States declares that there shall be a fair and open market for patents, such acts as those, spoken of are plainly in “ restraint of trade,” and are illegal.

Senator Pearce:

– That is not the only abuse of patents.

Senator PLAYFORD:

– There is a paragraph here which I may quote with regard to discrimination -

In the early part of this year it came to the knowledge of the President that great railway systems in the Middle West, upon which every section of the country is dependent for the movement of ‘breadstuff, had entered into unlawful agreements to transport the shipments of a few favored grain buyers at rates much below the tariff charges imposed on smaller dealers and the general public. This injustice prevailed to such an extent and for so long a time that most of the smaller shippers had been driven from the field, and the business formerly enjoyed by them absorbed by a limited number of persons who received secret and preferential rates. In a word, there was practically one buyer on each railway system, and the illegal advantages he secured from the carrier gave him a monopoly of the grain on the line with which his secret compact was made.

Coming to the question of legislation in regard to industrial combinations, we find that so far back as1870 a drastic measure was passed in which it was declared that any agreements between business firms to raise prices are invalid. As an example of the working of the law may be cited a case in which an agreement regarding sales having been broken by one of the parties recourse was had to the Court. The decision of the Court was that not only was the agreement invalid, but that it was not necessary to prove that the price of goods had increased, for such prices might have increased without the agreement. The agreement could not become the subject of any valid contract, and, therefore, no penalty consented to by parties to the agreement among themselves could be inflicted. Even the institution of a selling bureau, a very common institution among Austrian pools, has been held to be invalid, and any violation of its contracts cannot be punished by legal methods. These decisions, making the adherence to such agreements entirely a question of personal honour, have tended somewhat to discourage the formation of trusts.

Honorable senators will see that in Austria they have a law under which a man may enter into whatever agreements he pleases, but so far as they are in restraint of trade they are invalid. It might be contended, that if a certain manufacturer manufactures more than the quantity of goods agreedupon by arrangement with others in a pool, or sells his goods at a lower price than that agreed upon, he is liable, under his contract, to a certain penalty, but, under the law, it is impossible to enforce that penalty, and in this way trusts have been to a very considerable extent discouraged in Austria. In Germany the law on the subject is very uncertain. As a matter of fact, the Prussian Government are themselves in a trust, and operate a trust. Public feeling in Germany is not specially hostile to trusts, but the publicity given in that country to the operation of corporations militates against their establishment. In the United States, this position arose in connexion with the formation of these corporations. There are in that country a number of separate States, and the Federal power can interfere only in connexion with inter-State or oversea commerce. It cannot interfere with the internal legislation of what are practically sovereign States. The result has been that when one State has passed a stringent corporation law compelling any business corporation to issue a yearly or half-yearly balance-sheet, and to give publicity to its operations in order that the public might, know exactly how its business was carried on, another State, anxious for the establishment o£ that corporation within its borders, has modified its’ law by giving facilities to the corporation to avoid the publicity enjoined by the law of the first State. A corporation would, therefore, naturally establish itself in the State which afforded the greatest facility for the carrying on of its business in the dark. The State of New Jersey, opposite New York, is noted for the very lax way in which itallows corporations to be formed, and a great many of the corporations and trusts of the United States have been incorporated in that State. In England, and in Europe, as a whole, such publicity in connexion with the operations of corporations and trusts has been insisted upon, that, amongst other things, the watering of stock has been largely prevented, and that is one of the great abuses of trusts in the United States. As a consequence, trusts have been discouraged in England and in Europe to a much greater extent than in the United States. I stated just now that in Germany, the people do not trouble very much about trusts and combines, and that, in fact, the Prussian Government is a party to a combine. I may quote the following on the subject from page 24 of this report: -

In the case of the potash combination, its products were formerly wholly obtained from mines belonging to the Government, but private mines were opened, and agreements made, in which the State itself (Prussia) is a party. The State had factories of its own to work up the products of the mine, and upon forming a pool with other mine and factory owners made certain rules, which, being agreed to, bind mine owners not to supply to outside factories, or these factories to buy from independent mines, but the Government retains the power of regulating the amount of output, and even of making special concessions in price for the benefit of German agriculture.

There can be little reason to consider the Stale as being a partner in an evil combination, when on many occasions the rights reserved to itself have been productive of enormous advantage through its chemists and agriculturists to the nation, lt does not scruple to punish guerilla competition by a competitive war, and has forced private enterprises to desist from busi ness, or enter the combination, but its direct influence has been that of the beneficent aristocrat.

– But we do know what is the matter. We know that throughout the civilized world, for the last halfcentury or more, trusts have been formed, and in many cases, to the injury of the people. We do not expect to escape an evil of that sort.

Senator Best:

– “ Prevention is better than cure.”

Senator PLAYFORD:

– Undoubtedly, in this case, “ prevention is better than cure.” I desire now to refer to the anti-trust legislation which has been enacted in various^ parts of the world. Some time ago, I laid upon the table a memorandum which was prepared by my secretary, and which gives honorable senators all the information which was obtainable on that subject. If they will turn to the paper, they will see that the first Act of the United States was the Inter-State Commerce Act of 1887 -

This Act forbids the restraint of trade and commerce by carriers and shippers engaged in Inter-State commerce.

Its principal objects are summarized thus : -

To secure just and reasonable charges for transportation ; to prohibit unjust discrimination in the rendition of like services under similar circumstances and conditions ; to prevent undue or unreasonable reference to persons, corporations, or localities; and to abolish combinations for pooling freights.

It declares every contract, combination, in form of a trust or otherwise, or conspiracy in restraint of trade or commerce, to be illegal ; every party thereto guilty of a misdemeanour, and punishable by fine not exceeding $5,000 or by imprisonment not exceeding one year, or by both said punishments.

The Sherman Act was followed in 1894 by the Wilson Act, the object of which was to deal with trust agreements by importers. The Commerce and Labour Act of -1903 provides an official agency to obtain information with a view to better regulation and legislation. The Expedition Act and the Elkin Act, passed in the same year, are machinery Acts to simplify the taking of proceedings under previous Acts. In .the States and Territories of the United States there are certain anti-trust laws. On this subject my secretary says, in his memorandum -

The nature of the anti-trust legislation may be indicated bv a brief reference to some of the State enactments -

In the State of Arkansas, all combinations which tend to lessen free competition in importation, production, or sale of goods, or to regulate or fix the prices, are deemed to be conspiracy, punishable b’ imprisonment or fine; in Illinois, any trust, pool, combine, agreement, or understanding for regulating prices of goods, or limiting quantities made or sold, is a misdemeanour, punishable by fine or imprisonment, or both ; in Kansas, it is a misdemeanour to create or maintain a confederation to regulate the price or quantities of goods, fees of attorneys and doctors, or rate of interest, punishable by fine or imprisonment, or both ; in New York, it is a misdemeanour to combine to create a monopoly in the production or sale of any commodity of common use, or to restrain competition in the supply or price, punishable by fine or imprisonment, or both; in Tennessee, it is a felony, punishable by fine or imprisonment, or both, to’ create or maintain any combination that tends to prevent free competition in the production or importation or sale of goods, or to regulate the price; in Michigan, making a contract is one crime, and acting under it another, both punishable by fine or imprisonment, or both.

United States, in 1899, what was known as the Chicago Trust Conference. It was attended by representatives from all parts of the United States. They made a great many inquiries, and a report was brought up, from which I shall quote a portion. It will give honorable senators an idea of the extent to which trade and commerce ‘in the United States are in the hands of monopolists -

Questions were sent to wholesale dealers, commercial travellers, rail-roads, combinations, labour organizations, contractors and manufacturers, economists, financiers, public men, &c-

According to these replies the following articles cannot be bought outside the trusts : anthracite coal, bagging, grass goods, cigarettes, copper (rolled), coffee, glass, iron, and steel (certain iron and steel products, such as chains, nails, and shovels, pipe, &c), glucose, kerosene oil, liquors (domestic distilled, except some Kentucky whisky), matches (certain makes), raisins, roofing (felt and slate), powder and ammunition, stoves, sardines, starch, snuff, solder, scythe snaths, tinplate, tinware, tobacco (certain brands as Battle-axe, Horseshoe, Duke’s Mixture, and Durham), white lead, white pine lumber, wooden-ware, and yeast cakes.

That is a fine list of monopolies ! These trusts are able to charge the public, not, perhaps, exactly what they like, but considerably in excess of what is a fair price. This they do for the purpose of putting an extraordinary profit into their own pockets. Another important question dealt with by this conference was as to the effect which combinations had had upon distribution - that is, the effect upon the small storekeeper who distributes goods to the consumer. On this subject the following statement is made in the report: -

One hundred and ten say it is injurious, because it decreases their business and profits, and lends to eliminate them, and forty-nine wholesale dealers think thev have been benefited by the formation of combinations.

In answer to the question what effect combinations have on the consumer, one hundred and five think consumers are injured, while only twentyfour think they are benefited, and forty-one think there is no difference.

The items of information about prices aggregate five hundred and six. Four hundred and fifty-two were to the effect that prices rose after combinations were made, twenty-four that (hey fell, fifteen that there was no change, and fifteen that they were fluctuating, two hundred and ten do not specifically assign trusts as the cause of the change (increase in most of these cases), and forty assign other causes, usually increased demand, rise of raw materials, or the Tariff.

I quote this to show, in the first place, the effect of these monopolies, and the number of articles which they monopolize. I also quote it to show that, in the great majority of cases, those who are able to speak with any degree of knowledge on the subject consider that in the long run trusts are injurious. There are, it is admitted, good trusts and bad trusts - those that have done injury, and those whose operations have been attended with a certain amount of good. The replies to the circulars sent out showed that in certain cases the trusts had done some good. Now I wish to quote a passage from the final report of the United States Industrial Commission of 1902. The report is very valuable. The Commission was appointed toy the United States Senate. There were to be upon it five members of the Senate, to be appointed by the presiding officer, five members of the House of Representatives, appointed by the Speaker, and nine other persons, who should fairly represent the different industries and employments, to foe appointedby the President by and with the advice of the Senate. The Commission was appointed in 1898. It sat for a number of years, and, after collecting an immense amount of evidence from all parts of the United States, brought up a report embodying its conclusions. The gist of that report is to be found in the following recommendations : -

We now further recommend -

That district attorneys of the United States be authorized and directed to institute proceedings for violations of the Federal anti-trust laws.
That combinations and conspiracies, in the form of trusts or otherwise in restraint of trade or production, which by the consensus of judicial opinion are unlawful, should be so declared by legislation uniform in all jurisdictions, and as to all persons, and such Statutes should be thoroughly enforced.
That stringent laws be enacted by the Congress and the several State Legislatures, making both penal and criminal the vicious practice of discriminating between customers, and cutting rates or prices in one locality below those which prevail generally, for the purpose of. destroying local competition; and that such laws should give to any person damaged the right to sue for and recover prescribed penalties, and make it the duty of prosecuting officers to proceed against the offenders.

Senator Millen:

– That applies to internal trade.

Senator PLAYFORD:

– I am not quite sure whether it applies to foreign trade also. Honorable senator’s will notice the very drastic proposals there made. It will be observed,also, that we have followed the United States laws pretty closely in drawing up this Bill. Now I wish to refer to the measure itself. I will call attention to the principal clauses in it, although I shall not attempt to go through it exhaustively. The first matter in the Bill to which I wish to call attention is the definition of the term “ commercial trust.” It is defined to include -

A combination whether wholly or partly within or beyond Australia.

This provision has been very carefully considered by the Attorney-General, who hashad regard to the different decisions that have been given, particularly in the United’ States Courts, in the various actions that have been brought against trusts and combines. Some of them have been able to escape punishment in consequence of the law not having been as carefully worded as it might have been. The Attorney-General has endeavoured, and I believe he has succeeded, in framing a definition under which it will be very difficult for trusts and combines to defeat the law. The term “commercial trust “ will include all combinations that have been attempted up to the present time. Clause 4 relates to individuals. It provides against -

Any person who either as principal or as agent makes or enters into a contract . . . (a) with intent to restrain trade or commerce to the detriment of the public.

In the United States laws on this subject, those words, “ to the detriment of the public,” are not included. Consequently, some trusts, although their operations have not been proved to be to the detriment of the public, have been punished simply becausethey came within the law. For instance, there is the case of the United States v. Coal Dealers’ Association of California, an outlineof which is as follows : -

Practically all the coal used in San Francisco was mined in Washington, Oregon, and BritishColumbia. A very large number of the coal dealers in San Francisco formed themselves into an association, agreeing not to sell coal below certain prices. The association entered into acontract with the producers of coal in Washington, Oregon, and British Columbia, whereby the producers agreed to co-operate with the association to carry out its purposes, and the producers agreed not to sell coal to any non-member except for a much higher price than they charged members. United States took action to enjoin proceedings under this arrangement.

The Court held that the combination affected the rate of coal as soon as it arrived in San Francisco from other States, and before it had become a part of the mass of property in the State it remained in Inter-State commerce, and, therefore, came under the Anti-Trust Act. It was unnecessary to discuss whether the restraint was reasonable, for the Sherman Anti-Truft law forbids all restraints whether reasonable or not.

It will be seen that in that case an injunction was granted. Clause 4, paragraph b of sub-clause 1, sets forth that it is an offence to enter into any contract or combination - 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.

The. penalty for the offence is a fine of £500, and it is provided that every contract made or entered into in contravention of the clause shall be absolutely illegal and void. Clause 4, it will be seen, refers to persons, corporations being provided for in clause 5, which reads as follows: -

Any foreign corporation, or trading or financial corporation formed in the Commonwealth, which, either as principal or agent, makes or enters into any contract, or engages or continues in any combination ….

Then follow words precisely similar to those of paragraphs a and b of sub-clause 1 of clause 4, and, as under that clause, the penalty is . £500, while every contract so made is to be, void. The questionmay be asked whether there is power to deal with foreign corporations. If honorable senators turn to section 51 of the Constitution they will see that the Commonwealth Parliament has power to make laws with respect to -

Trade and commerce with other countries, and among the States.

That is sub-section 1 of section 51; and sub-section 20 gives the Parliament power to deal with -

Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

It will be seen, therefore, that we have very extensive powers in this connexion. We cannot deal with individuals doing purely Inter-State business, but we may say to foreign corporations that they must not do certain things, or that, if they do, they shall be punished.

Senator Mulcahy:

– How is it proposed to reach foreign corporations?

Senator PLAYFORD:

– Foreign corporations, which come within the Bill, will have agents in Australia.

Senator Mulcahy:

– But supposing a foreign corporation has no agent?

Senator PLAYFORD:

– I cannot answer questions of that kind on the second reading; and I suggest that the honorable senator should raise these points in

Committee, where I shall have the assistance of my legal colleague. Clause 6 deals with unfair competition, and clause 7 provides against any monopoly of Inter-State or external trade. Clause 8 refers to the monopoly of trade by corporations, and includes any foreign corporation or trading or financial corporation formed within the Commonwealth. I desire to call special attention to clause 10, which provides for injunctions. It is laid down by this clause that no injunction shall be granted until there shall have been a hearing and determination on the merits of the case ; in other words, it will not be possible to obtain what the lawyers call an interlocutory order, which is made on a sort of ex parte statement to the Judge, often relied’ on in ordinary processes of law. The clause renders it imperative that the facts shall be laid before the Court, which must make inquiry before an injunction can be granted. Clause 11, which deals with actions for damages, is taken from the Sherman Act, and I propose to quote a case in order to show how that Act works in operation. The case is as follows : -

Montague v. Lowry. - This case is one in which an action was brought by a private person against a combination engaged in the manufacture of tiles, grates, and mantels, to recover treble damages under section 7 of the Sherman Anti-Trust Act. Plaintiffs in that case claimed that they had been boycotted by the Trust, and were unable to purchase goods except from members of the combine at “ list prices,” which was 50 per cent. higher than was charged to members of the combine. Plaintiffs obtained treble . damages.

– It depends on what the Minister calls dumping. All imports may be said to be dumped.

Senator PLAYFORD:

– By clause 17 it is provided that -

Unfair competition has in all cases reference to competition with those Australian industries, the preservation of which, in the opinion of the Comptroller-General or a Justice, as the case may be, is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.

I think that no honorable senator can object to that. Clause 18 provides when competition shall be deemed to be unfair. It will be unfair if - (a)Under ordinary circumstances of trade it would probably lead to the Australian goods being no longer produced or being withdrawn from the market, or being sold at a loss, unless produced at an inadequate remuneration for labour ; or

the means adopted by the person importing or selling the imported goods are, in the opinion of the ComptrollerGeneral or a Justice, as the case may be, unfair in the circumstances.

In the second part of this clause it is provided that, in certain cases which are set out, and which I need not read, because we shall consider them in detail in Committee, the competition shallbe deemed unfair unless the contrary is proved. Then I come to the proceedings which are to be taken under these clauses. There will be a Comptroller-General, who in all probability will be Dr. Wollaston, the present chief of the Customs Department. It is provided that whenever he has received a complaint in writing, and has reason to believe that any person, singly or in combination with any other person within or beyond the Commonwealth, is importing into Australia goods with intent to destroy or injure any Australian industry by unfair competition with Australian goods, he maycertify to the Minister accordingly. The certificate of the Comptroller-General shall specify the imported goods, the Australian goods and industries likely to be injured, the name of the importer, the grounds for assuming unfairness in the competition, the name, address, and occupation of the person upon whose information action is taken, and any further statement which the Comptroller-General may see fit to make. He will then give the importer an opportunity to come before him and show cause - to answer the complaint which has been received in writing from the person who claims to be aggrieved. The certificate of the Comptroller-General will then be submitted to the Minister, and on receipt of it the Minister may, by order in writing, refer to a Justice the investigation and determination of the question. He will notify in the Gazette that the question has been so referred, and forward to the Justice a copy of the Comptroller-General’s certificate. Provision is then made as to what the Justice shall do. He is to be given power, as set out in a clause containing nine sub-clauses, to fully investigate every matter, and when he has prepared his decision he is to forward it to the Minister. Clause 22 provides the action to be taken upon the determination of the Justice, and then there is provision in relation to a bond. These are the provisions of the Bill, and I contend that they are manifestly fair. The other branch of this Parliament took immense pains in dealing with the subject, and a great many alterations were made upon the Bill as at first introduced. We have received the measure after the wisdom of the House of Representatives has been applied to its consideration and amendment.

Senator Dobson:

– Do the prosecutions which have taken place in America show that the Sherman Act is fairly effective?

Senator PLAYFORD:

– I think there must be some kind of telepathy between the honorable and learned senator and myself, because that is just what I am coming to. I have a note “ to refer to other reported statements that trust laws are a dead letter in the United States.” I know that that is an old cry. It is true that there have been many cases in which the laws have failed to be effective, but there are many others in whichthey have been successful. I propose to refer to some of the cases in which the law has been successful in dealing with trusts. The Attorney-General has very carefully looked into those cases in which the law has failed. He has noted the reasons for the failure, and in this Bill we have protected ourselves as far as possible against a similar unfortunate result.

Senator McGregor:

– We have different Courts in this country.

Senator PLAYFORD:

– Dealing with cases in which the law has been successful I have the following note: -

United States v. Jellico Mountain Coal and Coke Co., 43 Federal Reporter 898, 1891. - Owners of the Kentucky Coal Mine and the dealers in Nashville, Tennessee, formed a combination whereby all the Nashville dealers could sell coal at the same price, the price to be fixed by the combination ; and the mines agreed to sell no coal in Nashville to any person not a member of the combination. The United States brings action under the Sherman Anti-Trust Statute to enjoin proceedings under this agreement.

Finding of the Court. - In making the agreement the transportation of the coal from Kentucky to Nashville, Tennessee, was a necessary incident to and element in the arrangement, and its execution would have been impossible without it.

That made it commerce between the States, and brought it within the purview of the Federal law -

It was, to all intents and purposes, commerce between the Stales, and as it is clear that it was a combination in restraint of trade, it falls within the Act.

Defendants are enjoined.

In January, 1903, Mr. Gaines, a member of the Federal House of Representatives, for Tennessee, said -

This Coal Trust was destroyed. Yet the honest coal business survives, and is thriving in Kentucky and Tennessee, and coal is selling there to-day at $3.50 to $3.75 - and why? The laws are enforced. Our Anti-Trust Statutes are enforced. The people are on top.

– It was one of the big trusts of America, but it certainly does not exist as a trust now. There may be some understanding amongst those engaged in the business, but I dare say the President of the United States is looking after them pretty sharply at the present time, and if there is any understanding between them it is likely that they will fare badly. I call the attention of honorable senators now to the note I have in connexion! with the case United Slates v. Swift, 122 Federal Reporter, 529 April, 1903. Swift was a member of theBeef Trust, and the case was tried in the United States Circuit Court, in the northern district of Illinois.

This case involved what is known as the Beef Trust, one of the most formidable of the industrial combinations of the United States. It was urged that of the total volume of trade and commerce among the Stales and Territories in fresh meats the Trust controlled about 60 per cent. The Trust is alleged to be guilty of the following acts : -

Directing their purchasing agents to refrain from bidding against each other at auction sales of live stock;

That is against the producer -

In bidding up the price of such stock for a few days at a time to induce large shipments, and then ceasing to bid to obtain the stock thus shipped at less than ruling market prices.

The object was in the first place to establish big prices. When those prices became known throughout the country stock was sent in from all parts of the United States. Then the prices at once came down, and the owners of the stock could not take them back, perhaps thousands of miles, and were compelled to sell them for whatever they would fetch. In this way, the Beef Trust fleeced the producer in a most disgraceful manner. The note continues -

In agreeing upon prices to be adopted by all, and restricting the output or quantity of meal shipped ;

By that means they kept up prices in the foreign, market. There are all sorts of devices in trade, and while one ‘ plan adopted is to dump goods into a foreign market, another is to prevent shipments to foreign markets when they would have the effect of lowering prices in those markets.

Senator Millen:

– Whether they send goods or not, they are to be punished.

Senator PLAYFORD:

– Yes ; they are a bad lot; there is no doubt about that. The note ofthis case continues -

In directing uniform prices for cartage and delivery throughout the United States as a device to increase the price to dealers and consumers ; and
in negotiating with carriers for secret rebates on their enormous shipments, thus bringing about unjust discrimination against other shippers and competitors for the purpose of stifling and destroying competition.

The Court held that these facts constituted an unlawful combination and conspiracy within the meaning of the Sherman Act, because it was restraint of trade and commerce, and, applying the rules laid down in the Addystone Pipe case, granted an injunction perpetual, forbidding the continuance of the acts of defendants complained against. (The injunction was granted in April, 1903. Further litigation followed, but the decision was upheld by the Supreme Court of the United States, in January, 1905.)

Then the injunction is set out, but I need not read it. It appears, however, that the trust comprised seven corporations, one co-partnership, and twenty-three other persons.

Senator Pearce:

– Nowthey have what is called a gentleman’s agreement, which is expressed in no writing and no bond, except a bond of honour.

Senator PLAYFORD:

– I know that that has been stated, but I do not know that it has been proved. Whether there are men of honour among these people I am unable to say. I have four typical cases which show that in the United States the anti-trust law has been enforced. It may be said, in fact it has been said, that in the Commonwealth there is no necessity for this Bill. Some time ago I stated that I did not intend to allude to individuals or to corporations. But I expressed the belief that there were trusts and combines in existence in Australia. I will not say for a moment whether those trusts and combines are injurious - whether, like chips in porridge, they do neither good nor harm - or whether they are beneficial, as in some cases they may possibly be. I do not lay stress upon that aspect of the matter as one of the reasons for bringing in the Bill, but I submit that, in the absence of a restraining law, it is inevitable that sooner or later we should have trusts and combines working here which would be injurious to the public. It is a great deal wiser, therefore, to pass such legislation as this before any injury has been done than to wait until some of our citizens complain. We cannot pass retrospective legislation. We can only deal with cases which may arise after the passing of the law. It is wise, therefore, to legislate in advance. In this connexion I wish to quote some words which Senator Hoar addressed to the Senate of the United States on the 6th January, 1903, when it was considering certain proposed anti-trust legislation, and when he was arguing in favour of such legislation being proceeded with immediately. His statement is a wise one - and is worthy of being quoted. Speaking on the subject of the regulation of trusts or corporations, he said -

So it is for the future more than for the present that the wisdom of our legislators is called upon to take thought. And, Mr. President, the condition of that country is unhappy whose legislator does not take thought for the future even more, than for the present. Happy is the people whose statesmen foresee and prevent grievances, instead of waiting to experience them to cure them. In dealing with this trust problem, and the danger of vast accumulations of wealth in single private hands, we are seeking to lay down beforehand the law of & healthy life, and not to grope after a cure for a deadly sickness.

That is the position I take up in regard to this Bill. Honorable senators may say that there is nothing in the nature of trusts and combines in the ‘Commonwealth which demands the enactment of such legislation ; I do not care whether there is, or is not. Looking at what has been done in other countries in this respect, and remembering the injurious effects which trusts and combines have produced, more or less, in different parts of the world, I submit that it is a great deal better for us to place this measure upon the statutebook now than to wait until the evil actually exists. I contend that if it be enacted, we shall be able to deal with any case which may arise before much mischief can be done. I believe that it will have a deterrent effect, in that it will prevent trusts and combines being formed whichwould be injurious to the public interest.

Debate (on motion by Senator Millen) adjourned.

Motion (by Senator Playford) proposed -

That the adjourned debate be an Order of the Day for Wednesday next.

Senator DRAKE:
Queensland

– I desire to ask the Minister of Defence whether he will be able to give every member of the Senate a copy of the paper by Mr. Tregear, from which he quoted in his speech?

Senator PLAYFORD:
Minister of Defence · South Australia · Protectionist

– I cannot lay the whole of the paper upon the table of the Senate, because it contains the greater portion of the information which appears in the memorandum on Anti-Trust Legislation. But I shall get such parts of the paper as I think will be useful printed, and circulated among honorable senators as soon as possible.

Question resolved in the affirmative.

Senate adjourned at 3.40 p.m.

Cite as: Australia, Senate, Debates, 20 July 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060720_senate_2_32/>.

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Senate20 July 1906

EMINENT DOMAIN BILL

Senator KEATING:Honorary Minister · Tasmania · Protectionist

Senator Millen:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Millen:

Senator KEATING:

Senator Millen:

Senator KEATING:

Senator CLEMONS:TASMANIA · FT; ANTI-SOC from 1910; LP from 1913

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Best:

Senator KEATING:

Senator McGregor:

Senator KEATING:

Senator Millen:

Senator KEATING:

Senator Sir Josiah Symon:

Senator KEATING:

Senator Best:

Senator KEATING:

Senator DRAKE:Queensland

Senator Guthrie:

Senator DRAKE:

Senator McGregor:

Senator DRAKE:

Senator Best:

Senator DRAKE:

Senator Best:

Senator DRAKE:

Senator DAWSON:QUEENSLAND · ALP

Senator Sir JOSIAH SYMON:

Senator DAWSON:QUEENSLAND · ALP

Senator Sir JOSIAH SYMON:

Senator Best:

Senator Sir JOSIAH SYMON:

Senator Best:

Senator Sir JOSIAH SYMON:

Senator Best:

Senator Sir JOSIAH SYMON:

Senator CLEMONS:Tasmania

Senator PULSFORD:New South Wales

Senator KEATING:Honorary Minister · Tasmania · Protectionist

Senator MILLEN:New South Wales

Senator Keating:

Senator MILLEN:

Senator Keating:

Senator MILLEN:

Senator Keating:

Senator MILLEN:

Senator KEATING:Honorary Minister · Tasmania · Protectionist

Senator Millen:

Senator KEATING:

Senator Best:

Senator Millen:

Senator Best:

Senator Millen:

Senator KEATING:

Senator Clemons:

Senator KEATING:

Senator Keating:

Senator Sir JOSIAH SYMON:

Senator KEATING:Honorary Minister · Tasmania · Protectionist

Senator Drake:

Senate
20 July 1906

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

Senator CLEMONS:
TASMANIA · FT; ANTI-SOC from 1910; LP from 1913

Senator DRAKE:
Queensland

Senator DAWSON:
QUEENSLAND · ALP

Senator DAWSON:
QUEENSLAND · ALP

Senator CLEMONS:
Tasmania

Senator PULSFORD:
New South Wales

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

Senator MILLEN:
New South Wales

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

Senator KEATING:
Honorary Minister · Tasmania · Protectionist

Senator BEST:
Victoria

Senator CLEMONS:
Tasmania

Senator FRASER:
Victoria

Senator DRAKE:
Queensland

Senator KEATING:
Honorary Minister · Tasmania · Protectionist