Profiteering Prevention Act 1939 (WA)

1939. ] Profiteering Prevention. [No. 9.

PROFITEERING PREVENTION.

3° Gno. VI., No. IX.

No. 9 of 1939.

AN ACT for the prevention of Profiteering and for

other incidental purposes.

[Assented to 13th October, 1939.]

BE it enacted by the King's Most Excellent Majesty,by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

1. This Act may be cited as the Profiteering Pre- Short title.

vention Act, 1939.

This Act shall operate and apply as being abso- Mely separate and distinct from the Wheat Products

Q. No. 33 of

1920, 1.

This Act to

operate separ-

(Prices Fixation) Act, 1938 (No. 17 of 1938), and the

ately from the Wheat

terms and provisions of this Act shall have no relation

Products

(Prices Pin-

whatsoever to the terms and provisions of the Wheat

tion) Act,

1938,

Products (Prices Fixation) Act, 1938 (No. 17 of 1938), aforesaid.

2.

3. This Act shall be read and construed subject to constnettem.

the Commonwealth of Australia Constitution Act, and

No. 9] Profiteering P revention. [1939.

so as not to exceed the legislative power of the State to the intent that where any provision of this Act would but for this section be in excess of that power it shall never- theless be a valid enactment to the extent to which it is not in excess of that power.

Act divided

into Parts. 4. This Act is divided into Parts as follows:—

PART I.,	SS. 5 tO II—PRELIMINARY.
PART IL,	SS. 12 to 16—PRICES OF COMMODI-

TIES.

PART III.,	SS. 17 to 19—COMBINES, ETC.
PART IV.,	SS. 20 to 35—MISCELLANEOUS.

PART I.—PRELIMINARY.

Interpreta-

tion. 5. In this Act, unless the context otherwise indicates,

See ibid. S.	the following terms have the meanings respectively set " Commercial trust"—Any association or combina- tion (whether incorporated or not) of any num- ber of persons having as its object or purpose or as one of its objects or purposes
c/. N.S.W.
No. 41 of	against them, that is to say:—
1920, s. 4.

(a)

controlling or influencing the supply or

demand or price of any commodity; or

(b)

creating or maintaining a monopoly in the supply or demand of any com- modity.

" Commissioner "—The Commissioner of Prices

appointed from time to time, under this Act.

"Commodity"—Any of the following:

(a) Except as hereinafter provided any article of food or drink for man or for any domesticated animal;

(b) Firewood or other fuel;

(c)	Any article of clothing or apparel for man;
(d)	Any article which enters into or is used in the composition or preparation of any of the foregoing commodities;

(e) Agricultural implements (except tractors), bicycles, motor vehicles, spare parts and accessories for all classes of vehicles, machinery, and implements, and seeds for sowing;

(f)

Any public utility, and in particular with-

out limiting the generality of this expres-

sion, the supply of light, heat, and power ;

1939.] Profiteering Prevention. [No. 9.

(h) All goods, wares, or merchandise;

but shall not include flour or wheat products as

defined in and for the purposes of the Wheat

(g) Freights and transport charges; 1938), or any other commodity or substance to which that Act refers or applies, or any essential or other article the subject of any order made under the Defence (National Security—General) Regulations made under the Defence Act,

• 1903-1939 (Commonwealth).

"Declared price"—The maximum selling price of any commodity as fixed and declared under this Act.

"Document" includes book, letter, document, paper, or writing, and any entry or memorandum in the same.

"Member of a commercial trust" includes the per- son or persons managing and controlling that trust: Where any constituent person or agent is a corporation, firm or association the term includes every director, manager, or partner of that corporation, firm or association.

"Minister"—The Minister of the Crown for the time being or from time to time charged with the administration of this Act.

"Owner" includes not only the person owning the commodity in question but also every person having and who has entered into possession under any mortgage, encumbrance, right, lien, charge, or other interest over or in such com- modity. The term also includes the Crown.

"Place"—Any works, factory, warehouse, wharf, building, structure, ship, vessel, barge, punt, boat, airship, aeroplane, railway, tramway, sid- ing, land, station, farm, holding, road, highway, or other place or premises whatsoever.

"Prescribed date" means the 31st day of August,

one thousand nine hundred and thirty-nine, or

where in relation to any particular class or kind

No. 9] Profiteering Prevention. [1939.

of goods a trader did not on that date make a sale of goods comparable as regards place, class, kind, terms, and conditions, the last date prior thereto upon which that trader made such a comparable sale.

"Prevailing price" means in relation to any trader, the price whether wholesale or retail charged by that trader for the sale, on the prescribed date, at the same place and on the same terms and conditions of goods of that class or kind.

"Price" includes every valuable consideration what- soever, whether direct or indirect.

"Retail" means, in relation to any price, the price to a person for the purposes of consumption

Or use.

"Sale" includes barter and every other disposi-

tion of commodities for valuable consideration.

"Trader"—Any person carrying on the business of selling any commodities by any means whatso- ever and whether by wholesale or retail: the term includes the agent of any such person.

"Wholesale" means, in relation to any price, the price to a person for purposes of resale.

In the case of any service rendered to the public or any other thing declared by or pursuant to this Act to be a commodity, the term includes the person exercising control over such service or thing.

Power to

declare com-	6. (1) The Governor may from time to time by pro- (2) Every proclamation in pursuance of this section shall, in addition to being published in the Gazette, be published in such newspapers and otherwise in such man- ner as the Commissioner thinks sufficient for giving in- formation to all persons interested.
modities.	clamation declare the commodities to which this Act
Mid. a. 4.	shall apply.
Appointment

0 Commis-	7. The Governor may from time to time appoint a
sioner of

Prices.	Commissioner of Prices, and fix the remuneration for
Ibid. s. 5.
such officer.

of	No. 41 of	. N.S.W.
1920, a. 5.

1939.] Profiteering Prevention. [No. 9.

In the administration of this Act the Commis- sioner shall be subject to the direction and control of the	Administration
of Act.
aid. s. 6.
Minister.
Secretary and

8.

(1) A secretary to the Commissioner, and such other employees as may be necessary to assist in the	other officers.
ibid. s. 7.
administration of this Act, may be appointed under the provisions of the Public Service Act, 1904-1935, either separate from or in conjunction with any other public office, and either permanently or temporarily.
(2) Every such officer shall be bound to secrecy by declaration in the prescribed form.

9.

10. The signature of the Commissioner shall be nJudicial o ee

judicially noticed.

11. The Commissioner may at his own discretion, or at the request of any member of the public, upon good	Duties of the
Commissioner
as to investi-
gations.
cause shown and shall, when required so to do by the	See s. 9.
Minister, investigate and report to the Minister upon all or any of the following matters:--

(i)    the state of the prices of any commodity in this State or in any part thereof, and at any time or times;

(ii)    the quantity, situation, demand, supply, or pos- session of any commodity in this State or in any part thereof ;

(iii)    the means or sufficiency and cost of the supply or transport of any commodity;

(iv)    the probable requirements of the people of this State or of any part thereof in regard to any commodity;

(v)    any act or attempt by any person to raise or maintain the price of any commodity;

(vi)    as to what from time to time should be the maxi- mum selling prices of any commodity, under then existing market conditions and circum- stances, for this State or any part thereof, and as to what from time to time shall be "reasonable quantities" of any commodity within the meaning of paragraph (b) of sec- tion fourteen of this Act;

No. 9] Profiteering Prevention. [1939.

(vii) the necessity or advisability of the exercise of

any of the powers conferred by this Act.

PART II.—PRICES OF COMMODITIES.

Prevailing

price to be 12.

The wholesale and retail maximum price to be charged by any trader for any commodity shall, subject to any variation made in accordance with the, provisions of this Act, be the prevailing price current on the pre- scribed date.

charged until

varied.

Declaration

of maximum	13.	(1) The Governor may from time to time, on the
prices.

See ibid. s. 10 report and advice of the Commissioner under section

N.S.W. eleven of this Act, by proclamation-

No. 41 of

1920, s. 16.	(i)	Fix and declare for any commodity (a) the maximum price;
(b) different maximum prices according to differ- ences in quality or description or in the quan- tity sold, or in respect of different conditions, terms, or localities of trade, commerce or sale; or
(e) different maximum prices for different parts of

the State;

(d)	maximum prices on a sliding scale;
(e)	maximum prices on a condition or conditions;
(f)	maximum prices for cash, delivery, credit or time payment, and in either case inclusive or exclusive of the cost of packing;
(g)	maximum prices on a percentage basis on

landed or other cost;

(h) maximum prices according to or upon any

principle or condition prescribed;

(i)    what shall be "reasonable quantities" of any commodity within the meaning of paragraph (b) of section fourteen of this Act.

(ii) In fixing and declaring any price, do so relatively to such standards of measurement, weight, capacity or otherwise howsoever as he thinks proper; or so that such price shall vary in accordance with a standard or time or other circumstance, or shall vary with profits, divi- dends, or wages;

1939.] Profiteering Prevention. [No. 9.

(iii)    Vary any price previously fixed, but so as to

apply only to future transactions.

(2)

The Governor may by a subsequent proclamation revoke or vary any such proclamation.

(3) Every such proclamation shall take effect upon the publication thereof in the Gazette, or upon a later date, to be thereby fixed.

14. It shall be unlawful and an offence against this Salo at higher than declared

Act for any trader, whether as principal or agent— price untaw-fut.

(a) to sell or agree to sell or offer for sale any emu- see ibid. s.12.

modity at a price higher than the declared

price, or, where there is no declared price, at a 19i0, s. 24.

price higher than the prevailing price, or to sell

any commodity for which a declared price is

fixed and thereafter demand for the same a

price higher than the declared price;

(b) to refuse to sell in reasonable quantities at the declared price, or, where there is no declared price, at a price higher than the prevailing price any commodity under his control:

Provided that the Commissioner may from time to time authorise and permit any trader to withhold from sale any commodity or any quantity thereof;

(c) in any prosecution under this section it shall be a sufficient defence to show that on the occasion in question-

(i) the defendant supplied a reasonable quantity of the commodity, or had not a sufficient quantity of the commodity in his custody or under his control to supply the quantity demanded, in addi- tion to the quantity required to satisfy all other contracts then subsisting, under which lie was obliged to supply quantities of the commodity and the ordinary requirements of his business; or

(ii)    the defendant was a wholesale trader in the commodity and the person who de- manded to be supplied was not a retail trader therein.

No. 9] Profiteering Prevention. [1939.

For the purposes of this section in determining what is a reasonable quantity, regard shall be had to all the circumstances of the case, including the question whether the person who demanded to be supplied was or was not at the time of the demand carrying on business as a retail trader in the commodity demanded, either alone or with other goods.

Returns of

commodities 15. (1) The Commissioner may from time to time, by

Ibid. a. 18.

notification published in the Gazette and in such news-

papers as he shall deem fit

(a)	order that all traders in any specified part of the State having in their possession or control a quantity of a commodity to which a proclama- tion under section six of this Act relates shall furnish to the Commissioner returns of such commodity within suck time and at such intervals as may be prescribed;
(b)	order that any such commodity shall not be with- held from sale in excess of a quantity fixed by such order.

(2) Any trader who fails to so furnish any such re- turn or wilfully furnishes a false return, or has in pos- session any commodity which has not been duly included in such return, shall lie guilty of an offence against this Act.

Seizure of

commodities	16. (1) Where the Commissioner considers that any
withheld from

sale.

commodity which in his opinion should be distributed for

Ibid. s. 14.

public use is being withheld from sale, he may so report

to the Minister.

(2) The Governor may thereupon by notice in the Gazette, authorise the seizure and distribution of such commodity by the Commissioner, paying therefor the declared price less such sum as he thinks reasonable to cover the expenses of seizure and. distribution; and any person acting under the authority of the Commissioner may enter any place in which_ such commodity is or is suspected to be, and use such force as may be necessary.

Illegal con- PART M.—COMBINES, ETC.

cessions. 17. Every person commits an offence against this Act who either as principal or agent in respect of deal-

s. 15.

No. 41 of

1 920, Part 8 ings in any commodity gives or agrees to give to any

1939.] Profiteering Prevention. [No. 9.

other person any rebate, discount, reward or other valu- able consideration, for the reason or upon the express or implied condition that the latter person-

(a)	deals or has dealt or will deal exclusively or principally with any person or class of persons, or with a commercial trust, or the members or any member thereof, in relation to such com- modity; or
(b)	does not deal or has not dealt or will not deal with any person or class of persons in relation to any such commodity; or
(c)	restricts or has restricted or will restrict his deal- ings with any person or class of persons in relation to any such commodity; or
(d)	is or becomes or has been or has undertaken or will undertake to become a member of a com- mercial trust; or
(e)	acts or has acted or will 4ct in obedience to or in conformity with the directions of a commercial trust with respect to the sale, purchase or sup- ply of such commodity.

Provided this section shall not apply to dealings or undertakings in the usual and ordinary course of business or trade.

18. Every person commits an offence against this Act who either as principal or agent refuses either absolutely	refusals to
IDegal
deal.
See ibid. a. 18.
or except upon disadvantageous conditions to sell or sup- ply to any other person or to purchase from any other person any commodity-

(i) For the reason that the latter person-

(a)	does not deal or has not dealt or will not under- take to deal with any person or class of per- sons or with a commercial trust or the mem- bers or any member thereof in relation to any such commodity; or
(b)	is not or will not undertake to become a mem- ber of a commercial trust; or
(c)	does not act or does not intend to act in con- formity with the directions of a commercial trust with respect to the sale, purchase, or supply of such proclaimed commodity.

No. 9] Profiteering Pre c e ntion [1939.

(ii) In obedience to or in consequence of or in con- formity with the directions of a commercial trust.

110:210 19. Every person commits an offence against this

monopolies.

Ibid. e. 17. Act who-

(a)	monopolises or attempts to monopolise or com- bines or conspires with any other person to monopolise wholly or partially the demand or supply in this State or ally part thereof of any proclaimed commodity; or
(b)	combines or conspires with any other person to control wholly or partially the demand or sup- ply or price in this State or any part thereof of any proclaimed commodity;

if such monopoly or control is of such a nature as to be

contrary to the public interest.

PART IV.-MISCELLANEOUS PROVISIONS.

Powers of	20. (1) The Commissioner, when holding any inquiry or investigation for any of the purposes of this Act, shall have all the powers, rights, and privileges of a Royal Commission under the Royal Commissioners' Powers Act, 1902, and shall be deemed to have been appointed by the Governor as a Royal Commissioner under that Act, and all the provisions of that Act shall apply.
Ibid. s. 20.

Commissioner

(2)

He may by himself or by any person appointed by him in that behalf enter and inspect any place and any commodities and other things the entry or inspection of which appears to him to be requisite.

He may receive evidence on affidavit; but he may require any person who has given evidence on affidavit to attend before him for oral examination or cross- examination.

(3)

(4) He may, if lie thinks proper, take evidence in pub-

lic or private.

(5)

In the exercise of any of his functions or powers,

he may refer any technical matter to an expert and may

accept his report as evidence.

No person shall be excused from answering any question put to him or from producing any document on

(6)

1939.] Profiteering Prevention, [No. 9.

the ground that the answer to the question or the pro- duction of the document would tend to criminate him in respect of any offence against this Act.

(7) The Commissioner may issue an order to any per- iPsosuweerortt.rs

son to take evidence on his behalf in relation to any mat- icientneeke evt-

ter, and that person shall have all the powers of the Commissioner in relation to the summoning of wit- nesses, the production of documents, and the taking of evidence.

A statement or disclosure made by any witness in answer to any question put to him by the Commissioner	Statements
made by
witness not
admissible in
evidence
shall not (except in proceedings for an offence against	against him.
this Act) be admissible in evidence against him . 11 any	Ibid. s. 22.
civil or criminal proceedings in any court.

21.

The Commissioner may, in the exercise of any of his functions, act in conjunction with any person or body

tatty act

Commissioner

with other conjunction

appointed and acting under any Act of the Parliament of

bodies.

any other State of the Commonwealth or of the Parlia-

Ibid. s. 23.

ment of the Commonwealth, having objects similar to

the objects of this Act.

22.

The Commissioner may publish such (if any) in- formation obtained in the exercise of his functions as he	publish infor-
Power to
mation.
thinks fit.	Ibid. s. 21.

23.

24.	(1) If the Commissioner has at any time reason	Power of
entry and

to suspect that	seizure in
certain cases.

(a)	any person has been guilty of any offence against this Act with respect to any commodity under investigation pursuant to section eleven of this Act; or	Ibid. s. 25.
(b)	any such commodity is kept, stored, or had in pos- session and has not been duly included in any prescribed return;

he may, by an order, authorise any State officer to seize, take possession of, carry away, and detain such com- modity, and for such purpose, with any necessary assist- ants, to enter any place and search for such commodity and to use such force as may be necessary, and, if necessary, open any chests, packages, or other things in which any such commodity is or is supposed to be.

No. 9] Pro fit gently Prevention. [1939.

(2)

Any order under this section may be transmitted

by means of a telegram, which shall be of equal validity

as if it were under the hand of the Commissioner.

If after due investigation by the Commissioner it is found that such person was not guilty of any offence as aforesaid, then any goods seized or carried away shall be returned to the person, or due compensation shall be paid to such person.

(3)

Obstructing	25. Any person who-
similar

officers and

offences.	(a)	resists, hinders, or obstructs the Commissioner or any officer or person in performance of any duties or the exercise of any powers under this Act; or
Ibid. s. 26.

(b) wilfully misleads the Commissioner or any officer or person in any particular likely to affect the discharge of his duty under this Act,

shall be guilty of an offence against this Act.

Penalty: Two hundred pounds or imprisonment with or without hard labour for six months, or both.

Punishment 26. Any person who upon oath gives any evidence

for false evi-

dence.

which in any material particular is to his knowledge

Ibid. e. 27.

false, before the Commissioner shall be guilty of perjury

and be punishable accordingly.

Bribery of	27. (1) Any person who-
witness.

Ibid. B. 28.	(a)	gives, confers, or procures or promises or offers benefit of any kind to, upon, or for any per- son upon any agreement or understanding that any person called or to be called as a wit- ness before the Commissioner shall give false testimony or withhold true testimony; or
N.S.W. No.

40 of 1920,	to give, confer, or procure, any property or
s. 36.

(b)

by any means induces a person called or to be called as a witness before the Commissioner to give false testimony, or to withhold true testimony; or

(c)

asks, receives, or obtains, or agrees to receive

or obtain, any property or benefit of any kind

for himself, or any other person, upon any

1939.] Profiteering Prevention. [No. 9.

agreement or understanding that any person shall as a witness before the Commissioner give false testimony or withhold true testi- mony; or

(d) practises any fraud or deceit, or knowingly Fraud on

makes or exhibits any false statement, repro- NiZtdn ss s a

sentation, token or writing to any person N.S.W. No.

called or to be called as a witness before the "Vgrsg,	..,
40and and 41.

Commissioner, with intent to affect

molly of that person as a witness; or

ect the

(e)	knowing that any document is or may be re- quired in evidence before the Commissioner' wilfully destroys it, or renders it illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence; or	Destroying documents.
(f)	wilfully prevents any person who has been sum- moned to attend as a witness before the Com-	Preventing
witness from
attending.

missioner from attending as a witness, or from producing any evidence pursuant to the summons to attend; or

(g) uses, causes, inflicts or procures any violence, punishment, damage, loss or disadvantage to any person for or on account of his having appeared as a witness before the Commis- sioner or for or on account of any evidence given by him before the Commissioner ; or Injury to witness.

(h) being an employer, dismisses any employee from his employment, or prejudices any	Dismissal by
employers of
witness.

employee in his employment for or on account of such employee's having appeared as a wit- ness before the Commissioner or for or on account of such employee's having given evidence before the Commissioner,

shall be guilty of an offence against this Act.

Penalty: Two hundred pounds or imprisonment with or without hard labour for six months, or both; or, if the offender is a corporation, five hundred pounds.

(2) In any proceedings for any offence against para- graph (h) of subsection (1) of this section, it shall lie upon the employer to prove that any employee shown to have been dismissed or prejudiced in his employment was so dismissed or prejudiced for some reason other than a reason mentioned in such paragraph.

No. 9] Profiteering Prevention. [1939.

Recovery of

penalties. 28. (1) All offences against this Act may be prose-

Ibid. s. 29.

cuted and punished by complaint under the Justices Act,

1902-1936.

Forfeiture.

N.S.W. 1920, s. 49.

(2) In case of any conviction the adjudicating court may order the forfeiture of all or any part of any com- modity with respect to which the offence was committed, or the value thereof, which value shall be determined by such court.

General

penalty. 29. (1) Any person who commits an offence against

See ibid. s. 29.	this Act for which no other penalty or punishment is
cf. N.S.W.
No. 40 of	expressly provided shall be liable

(a)	for a first offence, to a penalty nut exceeding one hundred pounds, or to imprisonment with or without hard labour, -for any term not exceed- ing three months, or, if the offender is an in- corporated company or association, to a penalty not exceeding two hundred pounds; and
(b)	for a second or subsequent offence to a penalty not exceeding two hundred pounds, or to im- prisonment with or without hard labour for any term not exceeding six months, or to both, or, if the offender is an incorporated company or association, to a penalty not exceeding five hun- dred pounds.

Offences by

corporations. (2) Where a person convicted of any offence against

ss. (5). this Act is an incorporated company or association,

N.S.W. No.

41 of 1920. s.	every director, and every officer concerned hi the man-
44.	agement of the corporation, shall be guilty of the like offence, unless he proves that the act which constituted the offence took place without his knowledge or without his consent.
Joint
offenders.	(3) If two or more persons are responsible for the same offence, each of those persons shall be guilty of the offence, and the liability of each of them shall be inde- pendent of the liability of the others.
Aiding and
abetting	(4) Every person who in this State aids, abets, counsels or procures, or is in any way knowingly con- cerned in the commission of an offence against this Act, shall be deemed to have committed that offence, and be punishable accordingly.
offences.

1939.] Profiteering Prevention. [No. 9.

Any notice under this Act may be served person- ally or by post addressed to the last known place of resi-	Service of
notices.
Ibid. s. 32.
dence or business of the person to be served.

30.

31.    No action, claim, or demand whatsoever shall lie, ii■riS,=11

or be made or allowed by or in favour of any person its officers.	Ibid. s. 33.
whomsoever against His Majesty or the Minister or the Commissioner, or any officer or person acting in the execution of this Act, for or in respect of any damage or loss or injury sustained or alleged to be sustained by reason of the passing of this Act, or of its operation, or of anything clone or purporting to be done thereunder.

The Governor may make all such regulations, not inconsistent with this Act, which may be necessary or	Regulations.
Ibid. s. 85.
convenient to be made for carrying this Act into effect or for facilitating the effectual operation of this Act, in- cluding the prescribing of forms which may be used under this Act and may by any such regulation impose a penalty not exceeding twenty pounds for a breach of any regulation.

32.

33.

All moneys that may be required for carrying this Act into full execution shall be paid out of the Con-

An/iron/1a'

Hon.

Ibid. s. 86

solidated Revenue Fund, which is hereby appropriated

for the purpose.

34.    The Commissioner shall prepare an annual report Annual

with respect to the administration of this Act for each report.

year ending on the thirtieth day of June and a final

report up to the expiry of the Act, and such reports shall

be laid before both Houses of Parliament.

35. This Act shall continue in force during the con- Dura f 111

tinuance of the war in which His Majesty is at the com- °

mencement of this Act engaged and for a period of six

months thereafter and no longer.