Home Page / Legislation / Industry Preservation Act

Legislation

Australian Industries Preservation Act 1906

 

Summary

The first federal Restrictive Trade Practices legislation in Australia. This Act was influenced by the Sherman Act. It prohibited combinations and monopolies relating to trade or commerce (sections 4 and 7) and combinations in restraint of trade (sections 5 and 8).

Sections 5 and 8 were subsequently (in 1909) declared unconstitutional by the High Court (Huddart Parker & Co v Moorehead (1909) 8 CLR 330).

The Act was amended a number of times and repealed in 1965. It was considered largely ineffective for the 60 years of its operation.

 

Long title

An Act for the Preservation of Australian Industries, and for the Repression of Destructive Monopolies

 

Text of legislation

The full text of the legislation (as first enacted) is available on AustLII in PDF form and from ComLaw. It was divided into three parts:

  • Part I Preliminary (sections 1-3)
  • Part II Repression of Monopolies (sections 4-15)
  • Part III Prevention of Dumping (sections 16-26)

Part II Repression of Monopolies

Section 4 Restraint of inter-State or external trade and destruction of industries

(1) 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 commerce with other countries or among the States

(a) with intent to restrain trade or commerce 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.

Penalty: Five hundred pounds.

(2) Every contract made or entered into in contravention of this section shall be absolutely illegal and void.

Section 5 Restraint of trade and destruction of industries by corporations

(1) Any foreign corporation, or trading or financial corporation formed within the Commonwealth, which, either as principal or agent, makes or enters 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

Penalty: Five hundred pounds.

(2) Every contract made or entered into in contravention of this section shall be absolutely illegal and void.

Section 6 Unfair competition

(1) For the purposes of the last two preceding sections, unfair competition means competition which is unfair in the circumstances; and in the following cases the competition shall be deemed to be unfair unless the contrary is proved:-

(a) If the defendant is a Commercial Trust:

(b) If the competition would probably or does in fact result in an inadequate remuneration for labour in the Australian industry:

(c) If the competition would probably or does in fact result in creating substantial disorganization in Australian industry or throwing workers out of employment:

(d) If the defendant, with respect to any goods or services which are the subject of the competition, gives, offers, or promises to any person any rebate, refund, disconnect, or reward upon condition that that person deals, or in consideration of that person having dealt, with the defendant to the, exclusion of other persons dealing in similar goods or services.

(2) In determining whether the competition is unfair, regard shall be had to the management, the processes, the plant, and the machinery employed or adopted in the Australian industry affected by the competition being reasonably efficient, effective, and up-to-date.

Section 7 Monopoly of Inter-State or external trade

(1) 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 an offence.

Penalty: Five hundred pounds.

(2) Every contract made or entered into in contravention of this section shall be absolutely illegal and void.

Section 8 Monopoly of trade by corporations

(1) 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.

Penalty: Five hundred pounds.

(2) Every contract made or entered into in contravention of this section shall be absolutely illegal or void.

Section 9 Aiding and abetting

Whoever aids, abets, counsels, or procures, or by act or omission is in any way, directly or indirectly, knowingly concerned in or privy to -

(a) the commission of any offence against this Part of this Act; or

(b) the doing of any act outside Australia which would, if done within Australia, be an offence against this Part of this Act,

shall be deemed to have committed the offence.

Penalty: Five hundred pounds.

Section 10 Injunction

(1) The Attorney-General, or any person thereto authorized by him, may institute proceedings in the High Court to restrain by injunction after hearing and determining the merits and not by way of interlocutory order the carrying out of any contract made or entered into after the commencement of this Act or any combination which -

(a) is in restraint of trade or commerce to the detriment of the public; or

(b) is destructive or injurious, by means of unfair competition, to any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interests of producers, workers, and consumers.

Provided that except in the case of foreign corporations, or trading or financial corporations formed within the Commonwealth, this section shall only apply to contracts or combinations in relation to commerce with other countries or among the States.

(2) On the conviction of any person for an offence under this Part of this Act the Justice before whom the trial takes place shall, upon application by or on behalf of the Attorney-General or any person thereto authorized by him, grant an injunction restraining the convicted person and his servants and agents from the repetition or continuance of the offence of which he has been convicted.

Section 11 Action for treble damages

(1) Any person who is injured in his person or property by any other person, by reason of any act or thing done by that other person in contravention of this Part of this Act, or by reason of any act or thing done in contravention of any injunction granted under this Part of this Act, may, in the High Court, before a Justice without a jury, sue for and recover treble damages for the injury.

(2) No person shall, in any proceeding under this section, be excused from answering any question put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that 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.

Section 12 Special jury

The jury panel for the trial of any offence against this Part of this Act, or for the trial of any action or issue under this Part of this Act, shall be taken from the list of special jurors (if any) in the State or part of the Commonwealth in which the trial takes place. Trial of offences.

Section 13 Trial of offences

(1.) Any offence against this Part of this Act (not being .Second offence. No proceeding "without authority of Attorney General. Public notification of terms of contract or combination. . an indictable offence), shall be tried before a Justice of the High Court without a jury. (2.) Any offence against this Part of this Act committed by a person who has previously been convicted of any offence against this Part of this Act shall be an indictable offence, punishable on conviction by a penalty not exceeding Five hundred pounds, or imprisonment for any term not exceeding one year, or both; in the case of a corporation, by a penalty not exceeding One thousand pounds.

Section 14 No proceedings without authority of Attorney-General

(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.

Section 15 Public notification of terms of contract or combination

(1) Any person party to a contract or member of a combination or in any way concerned in carrying out the contract or the objects of the combination may -

(a) lodge with the Attorney-General a statutory declaration by himself, or in the case of a corporation by some one approved of in that behalf by the Attorney-General setting forth truly fully and completely the terms and particulars of the contract, or the purposes objects and terms of agreement or constitution of the combination, as the case may be, and an address in Australia to which notices may be sent by the Attorney-General; and

(b) publish the statutory declaration in the Gazette.

(2) The Attorney-General may at any time send notice to the person above-mentioned (hereinafter called the declarant), to the address mentioned in the statutory declaration, that he considers the contract or combination likely to restrain trade or commerce to the detriment of the public, or to destroy or injure an Australian industry by unfair competition.

(3) In any proceeding against the declarant in respect of any offence against section four or section five of this Act, alleged to have been committed by him in relation to the contract or combination alter the time the statutory declaration has been lodged and published, and before any notice as aforesaid has been sent to him by the Attorney-General, it shall be deemed (but as regards the declarant only and not as regards any other person) that the declarant had no intent to contravene the provisions of the section, if he proves that the statutory declaration contains a true full and complete statement of the terms and particulars of the contract, or the purposes, objects, and terms of agreement or constitution of the combination, as the case may be, at the date of the statutory declaration and at the date of the alleged offence.

 

Amendments

 

Relevant cases