Some Reciprocal Effects of Our Anti-Trust Laws, with Special Reference to Australia

Published date01 January 1930
Date01 January 1930
AuthorD.B. Copland,J.G. Norris
DOI10.1177/000271623014700116
Subject MatterArticles
117
Some
Reciprocal
Effects
of
Our
Anti-Trust
Laws,
with
Special
Reference
to
Australia
By
D.
B.
COPLAND
Professor
of
Commerce,
University
of
Melbourne
and
J.
G.
NORRIS
Tutor
in
Law,
Department
of
Commerce,
University
of
Melbourne,
Melbourne,
Australia
‘ J[ ,E
shall
confine
the
treatment
of
d V this
subject
to
a
discussion
of
the
influence
of
American
anti-trust
legis-
lation
upon
legislation
in
Australia
since
the
establishment
of
the
Com-
monwealth
(1901)
and
upon
the
recent
methods
adopted
in
some
other
coun-
tries
for
controlling
monopoly.
It
will
be
necessary
to
distinguish
between
the
attitude
of
public
opinion
in
the
early
period
of
anti-trust
legislation,
ending
about
1913,
and
in
the
later
period.
In
the
early
history
of
the
Australian
Commonwealth
the
exist-
ence
of
combinations
in
certain
indus-
tries,
notably
sugar,
shipping
and
coal,
attracted
public
attention
and
the
democratic
nature
of
the
Parliament
of
the
Commonwealth
led
to
an
early
attempt
at
prohibitive
legislation.
This
was
embodied
in
the
Australian
Industries
Preservation
Act,
1906-1910.
Under
the
Commonwealth
Constitu-
tion,
Parliament
can
pass
legislation
with
respect
to
foreign
and
interstate
trade,
but
not
with
respect
to
trade
within
a
state.
In
the
original
Act,
sections
five
and
eight
prohibited
&dquo;any
foreign
corporation
or
trade
or
financial
corporation&dquo;
from
entering
into
any
contract
in
restraint
of
trade
or
controlling
to
the
detriment
of
the
public
the
supply
or
price
of
any
service,
merchandise
or
commodity
&dquo;within
the
Commonwealth.&dquo;
These
sections
were
held
by
the
High
Court
to
be
invalid
in
Huddart
Parker
&
Co.
Pty.
Ltd.
v.
Moorhead,~
because
they
did
not
fall
within
the
provisions
of
the
Constitution,
which
confine
the
legis-
lative
powers
of
the
Commonwealth
in
this
connection
to
foreign
and
inter-
state
trade.
They
were
repealed
in
1909.
A
review
of
the
development
of
trusts
in
Australia
in
1914
showed
that
the
majority
of
trade
combinations
did
not
extend
beyond
the
limits
of
a
state;
consequently,
the
anti-trust
legislation
was
limited
in
its
applica-
tion.2
THE
COMMERCIAL
TRUST
The
Act
itself
prohibited
any
per-
son
from
making
a
contract
or
engaging
in
a
combination
in
relation
to
trade
or
commerce
with
other
countries
or
among
the
states,
if
such
action
were
in
restraint
of
trade.
An
important
fea-
ture
was
the
provision
that
if
a
de-
fendant
was
a
&dquo;commercial
trust,&dquo;
this
in
itself
was
evidence
of
combina-
tion.
A
commercial
trust
is
defined
in
the
Act
as
including
a
combination
whether
wholly
or
partly
within
or
beyond
Australia,
of
separate
and
independent
per-
sons
(corporate
or
unincorporate),
whose
voting
power
or
determinations
are
con-
trolled
or
controllable
by:
(a)
The
creation
of
a
trust
as
understood
in
equity,
or
a
corporation,
wherein
the
trustees
or
corporation
hold
the
interests,
18
C. L. R. 330
(1908).
2
Wilkinson,
The
Trust
Movement
in
Australia
(Melbourne:
Critchley Parker,1914).
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