2nd Parliament · 2nd Session
Mr. Speaker took the chair at 2.30 p.m., and read prayers.
Mr. KENNEDY presented a petition from employes engaged in the manufacture of harvesting machines in Australia praying that their industry might be protected bv the imposition of a fixed duty of ,£25 on each stripper-harvester imported into the Commonwealth, and a further duty of 2jd. per lb. on -parts of the same.
Petition received and read.
– I wish to ask the PostmasterGeneral whether he can see his way to allow the conditions of contract for the English mail contract to be submitted to the Chambers of Commerce of Australia before tenders are invited?
– The honorable member was good enough to inform me of his intention to ask this question, to which the following is the answer: -
While the Postmaster-General will be pleased to receive any representation* that the Chambers of Commerce, or other representative bodies interested, may consider” it desirable to make with reference to the conditions of the English mail service, he regrets that he cannot undertake to submit the proposed conditions to the Chambers of Commerce or similar bodies. To do so would involve a serious delay which it is imperative to avoid if the difficulties attending the negotiations for the existing service are not to be repeated.
– In view of the question of the honorable member for Kooyong, 1 had intended to ask- the Minister whether the conditions of contract would also be submitted to the Political Labour Leagues and Trades Councils; but owing to the reply which he has made, I do not consider it necessary to proceed any further.
– I wish to know whe ther the Minister representing the Minister of Defence has yet received any information as to the reason why the Tasmanian Rangers were not permitted to take part in the Birthday Review recently held in that State?
– The honorable member brought this matter under notice some time ago, and inquiries were made. It was found that, as stated by the Commandant, the matter was purely one of expense, the funds at his disposal not being sufficient for the purpose. The Minister of Defence informs me that he will endeavour to make more acceptable arrangements in the future.
asked the PostmasterGeneral, upon notice -
– In reply to the honorable member’s questions, I have to state that inquiry is being made, and answers will be furnished as soon as the necessary information is available.
asked the Prime Minister, upon notice -
– The answers to the honorable member’s questions are as follow -
– I move-
That this House dissents from the ruling of Mr. Deputy Speaker, that an honorable member is not entitled to repeat an argument already used by another honorable member in the same debate.
I consented to the postponement of this motion yesterday, because I had no desire to interfere with the arrangement entered into between Ministers and other honorable members with regard to certain business. I think, however, that the matter should be disposed of to-day. The ruling to which I take exception was given during the debate upon the proposed new standing orders. Whilst I was speaking, the Deputy Speaker, with whom I regret to have to disagree, called me to order for repeating an argument which had been already used by another honorable member in the same debate. He referred to standing order 276, which reads as follows: -
The Speaker or the Chairman of Committees may call the attention of the House, or the Committee, as the case may be, to continued irrelevance or tedious repetition, or the taking up of time by a speech of such unwarrantable length as to obstruct the business on the part of a member, and may direct such member to discontinue his speech.
I should like to draw attention to the fact that no question of irrelevance or tedious repetition was involved, but that a broad ruling was given in the terms I have indicated. I respectfully submit that when the Deputy Speaker gave his decision he was under a misapprehension as to the ruling which you, sir, had already given. You were very careful in giving the ruling recorded at page 5366 of Hansard, to point out that so far as repetition of argument was concerned, it was the duty of honorable members to avoid the repetition of arguments used by other honorable members in the same way during the same debate. Further on you said -
Many honorable members will probably recollect a ruling I gave some two or three years ago, when, I think, the consideration of the Tariff was drawing to a conclusion. A letter which had been written concerning the Tariff was read two or three times by different honorable members, and I ruled, under standing order 276, that the letter having already been read more than once, I could not allow honorable members to repeat it in the same relation.
In your rulings on this point, you have specially pointed out that honorable members are not entitled to repeat arguments in the same way that they have been used by other honorable members or in the same relation. I presume that if an honorable member pointed out that -two and two make four, . and that another honorable member did the same thing, and still another followed his example, you would be entitled under the Standing Orders to call upon the third member to refrain from repeating arguments used previously in the same way, and in the same relation. If, however, the decision of the Deputy Speaker that no honorable member is entitled to repeat arguments already used is to hold good, debate will be seriously hampered. For instance, the Prime Minister is frequently absent from the Chamber attending to public business outside this House, and it may be desirable, upon his return to the Chamber, to repeat an argument used in his absence. Under the ruling of the Deputy Speaker, however, it would be impossible to adopt that course. Further, we know that in connexion with important matters - such as. for example, the second reading of a Bill - the first five or s.ix speakers present most of the arguments that can be advanced for or against the measure. Under such circumstances, those who were nor lucky enough to be included amongst the first five or six honorable members to catch Mr. Speaker’s eye. would be denied an opportunity of putting their views before the public, and before their constituents.
– We had a concrete illustration of that in connexion with the request by representatives of country districts for a revision of the fodder duties. They all used the same arguments.
– Yes. and upon that occasion, it was verv necessary that the arguments employed by them should be driven home. At that particular crisis in our his tory it was most important that the representatives of rural constituencies should have a full opportunity of giving expression to their opinions. In conclusion, I should like to point out that time after time the necessity arises, for repeating arguments which have been previously advanced. We all know that many lawyers find it is only by constant repetition that they are able to establish their case before a jury. Whilst it may be necessary to put into operation the standing order to prevent irrelevancy and tedious repetition, I submit that the Tilling of Mr. Deputy Speaker, if adhered to, will prove inimical to the best interests of debate in this House. I therefore move the motion standing in my name.
– I second the motion, because I feel that it is desirable that this question should be discussed. If the ruling of Mr. Deputy Speaker is applied generally to the conduct of business in this Chamber, it must necessarily reduce our proceedings to an absolute farce. If it is disorderly for one honorable member to use an argument that has previously been employed - not by himself, but by some other honorable , member - it seems to me that not only will discussion of any measure be confined to a very limited number of speakers, but, in some instances, it will be entirely blocked.
– It would be a terrible thing if honorable members were confined to new arguments, I suppose?
– Every honorable member will feel the effect of the ruling to which I have referred. I have been looking through the pages of Hansard with a view to ascertaining if there be anynotable exception, and I find that there is scarcely a member of this Chamber, who, at some time or other, has not employed arguments which have been previously used either by himself or other honorable members. Upon some questions there may possibly be only two or three main arguments which can be advanced, either for or against them. I can easily conceive that if the ruling of Mr. Deputy Speaker be upheld, one honorable member may rise, and put forward all those main arguments, and by so doing absolutely prevent any further discussion of the question at issue. As a matter of fact, under the ruling to which I allude, even a reference to arguments which had been advanced by other honorable members ‘Av>as prohibited. It seems to me that if a question is to be discussed at all, it is impossible for it to be fairly debated without honorable members referring to arguments which have been already used, and, perhaps, for purposes of clearness and emphasis, repeating them. It is easy to imagine that a proposed law which is advocated by honorable members upon one side of the House may be opposed by the first speaker upon the other side of the Chamber, on the ground of its injustice. The injustice which it would inflict may be the central argument upon which the whole opposition, to the proposal rests. Does anyone suggest that because the first honorable member - who has been fortunate enough to catch Mr. Speaker’s eye - has used that’ argument in opposition to the proposal, other honorable members ought to be prevented from employing it? It is due, not only to the members of the House, but to their constituents, whose mouth - piece they are, that they should have the freest right to express their opinions upon a matter of that kind, even though they might feel called upon to repeat arguments which had already been adduced. If it were not so, it must be clear to anybody who considers the matter, even from a superficial stand-point, that a Presiding Officer who was disposed to be tyrannical would be vested with power to effectually “ gag “ every honorable member. That condition of things ought not to obtain in a free Parliament. Mr. Deputy Speaker relied, in support of his action, upon the Standing Orders of the House of Commons. Hi’s supposed authority is to be found on page 300 of May’s Parliamentary Practice, which says, in relation to irrelevance or repetition -
A member who resorts to persistent irrelevance may, under Standing Order No. 24, be directed by the Speaker or the Chairman to discontinue his speech, after the attention of the House has been called to the conduct of the honorable member -
It will be seen there that the attention of the House has first to be called to the conduct of the member who is guilty of persistent irrelevance. May continues - and akin to irrelevancy is the frequent repetition of the same arguments, whether of the arguments of the member speaking, or the arguments of other members; an offence which may be met by the power given to the Chairman under Standing Order No. 24.
It will be observed that there is a very important qualification imposed by the introduction of the word “ frequent.” My reading of the standing order in question is that it is not disorderly to repeat an argument which has previously been used either by the same speaker or by another honorable member ; but it is disorderly to frequently repeat it. That is an important qualification, which appears to have been entirely lost sight of in the Deputy Speaker’s ruling. It seems to me that the standing order of the House of Commons does not preclude reference to arguments which have been used by other honorable members, nor the repetition of an argument which the speaker himself has previously used. What it does preclude is the frequent repetition of the same argument. Turning to page 828 of the appendix of May, I find the following, which deals with the question of irrelevance or repetition : - (27th November, 1882, and 28th February, 1888) That Mr. Speaker or the Chairman, after having called the attention of the House or of the Committee to the conduct of a member who persists in irrelevance, or tedious repetition either of his own arguments or of the arguments used by other members in the debate, may direct him to discontinue his speech.
In this connexion, I say that we have a standing order - I refer to standing order No. 276- which gives Mr. Speaker power to deal with honorable members who are guilty of tedious repetition. And there was no necessity under the circumstances to fall back upon the British House of Commons procedure, unless it was desired by the Chair to arrogate powers which the Standing Orders did not confer or contemplate. But May’s Parliamentary Practice does not support the Deputy Speaker’s attitude. In the quotation whi(ch I have just made, it will be noted that the word “ repetition “ is again qualified by the word “tedious.” Tedious repetition, I take it, means more than one repetition. Indeed, k means more than one repetition by the same person. .From both these readings it seems that a reasonable interpretation of the standing order is that an honorable member may use an argument which has been previously employed by another honorable member irrespective of whether he does so designedly or as the result of inadvertence. But it is clearly disorderly for him to indulge in tedious repetition of that argument- -in other words, to say the same thing over and over again. If it were not so, it would be useless to debate any question, because two or three honorable members might virtually advance all the main arguments either for or against any specific proposal.
– That would be “ hard luck.”
– Such a ruling would, therefore, operate very unjustly. The honorable member for Bland himself might be excluded from speaking under such circumstances. He might spend a considerable amount of time consulting- authorities in the library in order that he might be qualified to address himself to a certain question, and yet he might be denied an opportunity to give expression to his ideas ; because during his absence some one else had forestalled him and employed the arguments he intended to employ. He might attend in this Chamber with the intention of delivering an important speech - a speech which not only concerned the House and his constituents, but the country at large, and which by virtue of its importance ought to go before the country. But under the ruling of the Deputy Speaker, he might be absolutely prevented from delivering that speech, and consequently the pearls of wisdom which might otherwise have flowed from his lips would be lost to the present generation and to posterity. I am not arguing this question from any sense of personal ill-usage. I am eliminating the personal element entirely, and viewing the matter simply from the stand-point of reason and justice. It seems to me that if the ruling %of the Deputy Speaker be enforced within such narrow limits, the proceedings of this House as, a deliberative assembly will be reduced to an absolute farce.
– Apparently, some honorable members are anxious to decide this question - which is one of farreaching importance - without any debate whatever. It is with considerable diffidence that I address myself to the motion, and I can assure honorable members that they will not facilitate its early settlement if I am interrupted’ at the outset. I think it is a pity that the members of the Government, who should be the constitutional guardians of the liberties of honorable members, have not addressed themselves to this question with a view to showing whether or not, in their opinion, the ruling of the Deputy Speaker, if upheld, would curtail those liberties.
– I happened to rise when the honorable member did.
– Then I shall make my’ speech as brief as possible, in order that my honorable and learned friend may have an opportunity to deal with the question. Some references have been made to English’ precedents in connexion, not with this ruling, but with rulings which you, Mr. Speaker, have given, and which, on the occasion in question, appear to have been followed under a misapprehension. I maintain, first of all, that in a House of this size, English precedents should not concern us.
– I have heard the honorable member say, again and again,; that we ought to accept this and that “because it is English.”
– In this regard, at all events, I am a convert to, the views of the honorable member. I think that he will agree that in a Chamber so large as is the House of Commons it would be impossible to give that liberty of speech which should be extended to members of so small an assembly as this is. If we had 600 or 700 members of this House, each exercising his opportunities to speak, obviously no business could be transacted ; but we have only seventy-five members, and the difficulty of properly representing the sparselypopulated constituencies of this great continent are such that every honorable member should be given complete freedom to express the views of his constituents. While I. should be the first to admit that to repeat over and over again arguments used by previous speakers would be to take an undue liberty in a House of this character, I cannot agree with the ruling of Mr. Deputy Speaker that to repeat an argument which has been used, it may be only once or twice, bv a previous speaker must necessarily be out of order. What would be the position if that ruling were upheld’? An1 honorable member, hostile to the question at issue, might easily forestall another who wished to put a certain question in a serious way before the House, and, having forestalled him, he might take a point of order that arguments already used by him were being repeated.
– The second speaker could not even agree with him bv saying, “hear, hear.”
– That also would be out of order. It would be absurd if one honorable member could feebly state an argument in order to shut out its proper statement by another. That is one reason why
I feel that the House should dissent from this ruling. There is another consideration, and it is a constitutional ohe, which concerns all honorable members alike. Rulings from the Chair are designed not only to maintain order but to facilitate business, and all business in this House must be conducted upon a representative basis - the basis on which we hold our seats. That being so, it is clear that any ruling which aims at the root of the representative basis upon which we hold our seats in this Chamber should not be upheld. Let us consider the position which must arise if this ruling be accepted. The honorable and learned member for Illawarra has a large number of constituents who have entrusted’ him with their representation in this House. Rightly or wrongly, they think that no other representative should be left to voice their views. The honorable member for Melbourne, for example, might be able to put the views of the electors of Illawarra with even greater forcefulness than could the honorable and learned member representing that constituency. But I hold that the electors of that constituency are the only people entitled to judge of that matter. If this ruling be upheld, it is clear that the rights of the constituencies will be interfered with. That is the principal ground upon which I support this motion. I trust that the Government will give us that assistance which we are entitled to expect from them in dealing with it. As this ruling must necessarily affect all parties, the House should endeavour to forget the rancour or feeling under which it has been labouring for some time, and deal with the question in a dispassionate way.
– Mr. Speaker will deal with it.
– Unfortunately he will not. If he would, I should be perfectly satisfied. The question will be put to the House, and I therefore ask honorable members to deal with it in a judicial manner. The question with which we are concerned relates not to the past, but to the future. Let us divest ourselves of any of those bitternesses which necessarily resulted from the all-night sittings on. the occasion on which this ruling was given. If that be done, honorable members will recognise that this ruling, if upheld, must seriously curtail the liberties of the House, and will therefore support the motion of the honorable and learned member for Illawarra.
– I trust that the motion will not be assented to, more especially if its acceptance is to involve the adoption of the views that have been urged in support of it. If each honorable member, because he represents a different constituency, is to be entitled to repeat the same argument for the sake of his constituents-
– Not necessarily in the same way.
– If every honorable member is to be permitted to repeat his own arguments, and those of others, ad infinitum, debate “will be at an end, and Parliament will cease to be.
– We do not object to that.
– Evidently. The corporate existence of Parliament in those circumstances would be destroyed. We should have a gathering of irresponsible individuals, whose places in this respect might be supplied by so many gramophones or phonographs which, without the exertion of physical force, could keep on repeating what had’ already been said. The contention of those who have supported the motion would reduce the proceedings of the House to chaos. Here, as in the House of Commons, the unlimited right of an honorable member to repeat his own arguments, or those of others, would lead to absolute paralysis of business. Are we compelled to choose between a doctrine of that character and the ruling now submitted’ to us? I regret! that the motion, as proposed, appears not to truly represent the actual position.
– It was submitted to Mr. Deputy Speaker, and was fixed up by him.
– That is scarcely correct.
– I do not wish to dispute that point. But surely honorable members will agree that the consideration of this ruling requires us to have regard to the time, the place, and the moment of its deliverance. No one would say that in no Circumstances should an honorable member be permitted to repeat his own arguments, or those of another to which he desired to reply. Such a ruling, if not fatal to debate, would seriously cripple it. I venture to submit that when we look at the time and circumstances of the ruling, we shall find that arguments were being repeated with the object of convincing no one, elucidating nothing, advancing nothing. Their sole object was to occupy the time of the House. That is absolutely forbidden in express terms by the Standing Orders of the House of Commons, and is also forbidden by one of our own Standing Orders, although its terms are less explicit. In these circumstances the ruling that that was not the time or the occasion on which an honorable member was justified in repeating his own arguments, or those of others, was a proper one. Everything depends upon the time, the place, and the circumstances.
– That is a very poor answer.
– I defy the honorable member, or any one else, to state the conditions under which every standing order is to be applied in all conceivable circumstances. That would be impossible. In this matter, .as in relation to everything else, we have to trust to the good sense of the House, or to the judgment of Mr. Speaker, or the Chairman, as the case may be. Mr. Speaker, or the Chairman, takes all .the facts of each situation into account, and it is for him to say, in the particular circumstances, whether or not repetition is justifiable. A re-statement of arguments either for the purpose of giving a bona fide answer, or an explanation - a re-statement made not from a desire to occupy time, but to clear up some point that had been submitted - would not fall within this ruling.
– I submit that it would.
– I beg to differ from the honorable member, and tq assert that the ruling places no limitation upon debate that has not been already imposed by Mr. Speaker, and, indeed, by our own Standing Orders. Our Standing Orders, properly read, and the rulings of Mr. Speaker, as I have heard them, properly understood, imply that while there are times and places at which, a re-statement of an argument is absolutely necessary, and is in many other cases justifiable, there are also times and places in which it is absolutely unnecessary. If Mr. Speaker and the Chairman are not to interpose in such circumstances, and, with the weight of their independence and mature judgment are not to guide us, for what do we require a Speaker or Chairman? Do we expect the Standing Orders to operate automatically? Do we not intend that they shall be applied by Mr. Speaker and the Chairman according to the problem that happens to be submitted to them. It appears, therefore, that the fair and reasonable view is that the ruling having regard to the circumstances in which it was given was absolutely right; and that, while in other circumstances it would not apply, that fact does not detract from its soundness. I venture to assert that it would be impossible for Mr. Speaker in any ruling; to define all the circumstances in which such’ a ruling should be accepted absolutely, qualified in some particulars, or rejected. I take no exception to the submission of this motion, and certainly none to the way in which it was put before the House. It was dealt with argumentatively, and as briefly as possible. But I take a different view of the ruling from that which the honorable and learned member for illawarra has adopted. He has read it as applying absolutely at all times, to all honorable members in all debates. My reading of it is that it applies only to the time and place and debate in respect of which it was given. In such circumstances, it was right. In others it might have been wrong. On a general principle our Standing Orders condemn repetition or irrelevance, as do the Standing Orders of the House of Commons, When repetition becomes irrelevant, tedious, or useless!, when- a point has been made and sufficiently enforced, Mr. Speaker or the Chairman must be allowed to intervene to enable public business to be transacted. We must trust them to interpose at the right moment to prevent abuse of the forms of the House and loss of public time. I submit that under the circumstances of the case Mr. Deputy Speaker took the proper course, and should be upheld by the House.
– As the Prime Minister is of opinion that no exception can be taken to the submission of the motion, I shall not debate that aspect of the question; but I wish to say, as briefly as may be, that I think he has evaded the question before the Chair. The honorable and learned member for Illawarra asks the House to dissent from the ruling that an honorable member is not entitled to repeat an argument which has already been used by another honorable member. The Prime Minister said that when there has been tedious repetition of an argument for the purpose of delaying business, it is within your province, Mr. Speaker, or that of the Chairman, as the case may be, to as.k an honorable member to discontinue his speech. T do not think any one could take exception to such a ruling. But the ruling which we are challenging is quite different. It is given on page 5370 of Hansard, in the following words: -
The ruling was that our rules prevent an honorable member from repeating an argument which has been previously used.
Then, again, on page 5371, Mr. Deputy Speaker is reported to have said -
My ruling was that an honorable member would be guilty of irrelevance or repetition if he were to use arguments used by an honorable member previously in the same debate.
Therefore, it was twice stated that it is not within the province of an honorable member to repeat arguments used by another honorable member. Not a word was said about circumstances, time, place, and conditions, nor were any of the qualifications added which the Prime Minister has introduced. If Mr. Deputy Speaker had ruled that an honorable member is not entitled to repeat an argument which has been used by a dozen previous speakers, when it is obvious that the repetition is for the purpose of delaying business, 1 should have supported the ruling, and opposed the motion. That, however, is not the ruling which was given, and the motion of dissent asks the House not to allow the hard-and-fast rule to be laid down by Mr. Deputy Speaker that, once an argument has been used, it cannot be used again by another speaker.
– It is a mild form of the “gag.”
– To enforce such a ruling would be a most iron-handed proceeding. We shall! shortly be dealing with certain clauses of the Trade Marks Bill, the arguments in regard to which will revolve round the point whether what is known as boycotting will result from the passing of those clauses. The same arguments will be repeated over and over again, though presented in different ways, and it is necessary for the information of the public that they should be so repeated. But, under the ruling which I have read, no honorable member would be entitled to address himself to the subject after, say, two speeches had been delivered on each side of the Chamber. I do not object to any reasonable prohibition of repetition, and would strongly support any ruling against unreasonable repetition ; but when an officer of the House rules that a member is not entitled to repeat an argument which has been used only once before - which was the ruling of Mr. Deputy Speaker in so many words - it is the duty of those who differ to express dissent in the manner pro vided for in the rules of the House. The Prime Minister has admitted that repetition is sometimes desirable, though at other times it is not desirable. But, having admitted that it is under some circumstances desirable, it is his duty to vote for the motion, because the motion dissents from the ruling that repetition of an argument which has been used only once is not permissible. I intend to support the motion, because no reply has been made to the contention of the honorable and learned member for Illawarra, whilst the speech of the Prime Minister evaded and clouded the real issue, by introducing qualifications and limitations which were not used in the ruling of Mr. Deputy Speaker, and were not mentioned during the debate. The rulings referred to by the honorable and learned member as given by Mr. Speaker seemed to me to be supported by May and all the leading parliamentary authorities, and to such rulings, of course, we all bow.
– Will the honorable and learned member read mv original ruling?
– It is as follows:-
Mr. Speaker has already ruled, and it is in accordance with the practice of the House of Commons, that repetition may consist not only of a re-statement of a matter by the honorable member who is addressing the House, but also of a re-statement of the arguments of those who have preceded him. As the statement which the honorable member was making has already been made by other honorable members, I ask him not to repeat it.
Then follows the re-statement of the rulings which I have already read. The discussion of a motion of this kind presents difficulties to honorable members, but unless the ruling is cut down to make it accord with the practice stated in May and by Mr. Speaker, I shall feel it my duty to vote to dissent from it. I shall do so with regret, but I feel that it is more necessary to get rid of a wrong ruling than to avoid giving pain to an honorable member, however high a position he may hold in the House.
– I do not wish to discuss the question raised by the Prime Minister, whether, under the circumstances, Mr. Deputy Speaker was entitled to call upon an honorable member to discontinue his speech. That would be so much a matter of opinion, depending largely upon one’s knowledge of what occurred, that I do not think the honorable and learned member for Illawarra would feel justified in occupying time by asking the House to discuss it. Mr. Deputy Speaker, however, gave the ruling from which we are asked to dissent deliberately and after consideration, arid if we allow it to stand, or assent to it, it will most seriously limit debate on important occasions. The honorable and learned member for Illawarra was using a certain argument when Mr. Deputy Speaker said -
That argument has been mentioned by a previous speaker.
– I submit that whether the argument has been put before the House by another honorable member or not, I am not debarred from using it.
– Mr. Speaker has already ruled, and it is in accordance with the practice of the House of Commons, that repetition may consist not only of a re-statement of a matter by the honorable member who is addressing the House, but also of a re-statement of the arguments of those who have preceded him. As the statement which the honorable member was making has already been made by other honorable members, I ask him not to repeat it.
That ruling, I think, goes very little further than the House of Commons practice, though it must be remembered that the standing order of the House of Commons specifically refers to the arguments of other honorable members* while ours does not. If it had remained at that, I would let it pass, because the circumstances would explain it, but when the honorable and learned member for Werriwa moved! to dissent from the ruling, Mr. Deputy Speaker said -
I rule that the honorable and learned member’s statement of his dissent is out of order. It does not correctly represent my ruling. further on he said -
I should like to point out that the dissent expressed in writing by the honorable and learned member for Werriwa does not correctly state the effect of my ruling. The ruling was -
Then follows this re-statement of it in more explicit terms, after consideration, and the moving of a motion of dissent, in which it had been wrongly expressed -
That our rules prevent an honorable member from repeating an argument which has been previously used.
That means that, if an argument has been used bv any honorable member, it cannot be used by another. The honorable and learned member for Illawarra then said -
I have put my dissent in the following form r - “ I dissent from the ruling of the Deputy Speaker that an honorable member is not entitled to use an argument already used by another honorable member.”
Mr. Deputy Speaker would not agree that that statement of his ruling was correct.
Speaking of the honorable and learned member, he said -
The terms he has used in his protest scarcely express the effect of the ruling. I will give the honorable member an opportunity to put his protest in proper form if he so desires. My ruling was that an honorable member would be guilty of irrelevance or repetition if he were to use arguments used by an honorable member previously in the same debate.
So that the final statement of his ruling by Mr. Deputy Speaker, was that, to use arguments previously used by another honorable member in the same debate, would be to be guilty of irrelevance or repetition. There is nothing to limit or qualify or mitigate the absolute generality and severity of the ruling. If an honorable member uses an argument, no other honorable member can use it in the same debate, without being guilty of irrelevance and repetition. I do not know how it could be irrelevant, and presumably repetition is the offence. I think that even the Deputy Speaker will admit that his ruling is expressed in too general terms. It was expressed at a trying time, when a good deal of difficulty was being experienced, and I submit that there are some very important limitations to be placed upon it. So far as I am concerned, if this House were to become seized of the fact that the ruling was not of that broad, drastic, general character that its words implied, I should be satisfied. I should be very loth to vote for any mo- Hon dissenting from the ruling of the Chair under any circumstances. I believe that the Chair should be supported to the utmost of our power; but it is because the ruling in question is so broad and sweeping in its character that I feel bound to direct attention to the fact that it is, on the whole, a deliberate decision, which makes no reference to any particular circumstances. I imagine that the honorable and learned member for Illawarra would be satisfied if he were informed that there were unexpressed limitations connected with the ruling. I do not see how the House could support it in its present broad form. I trust that we shall receive some intimation that it is not meant to be construed to mean as much as it says, and that we may be able to avoid the necessity of voting either by way of assent or dissent upon a ruling given, as I freely admit, under circumstances of some difficulty.
– J look upon this as a nonparty question. The position of the Opposition to-day may be occupied by us next week, and I look upon the motion as a most serious one. Although I am reluctant to question the Deputy Speaker’s ruling, I realize that the privileges of honorable members must be maintained at all costs. I would refer honorable members back to the time when a severe drought afflicted nearly all parts of Australia, and members representing outlying districts in all the States, with the exception of Western Australia, had to use precisely the same arguments in support of a remission of the fodder duties. If the Chairman had ruled that after the second honorable member had spoken, the arguments previously used must not be repeated, the whole debate would have been stifled. Then, again, in the case of the discussion on the Orient mail contract, many honorable members on both sides of the House used the same arguments, although they may not have been couched in exactly the same words. If you, sir, had put a stop to that discussion on the ground that honorable members must not repeat the arguments already used by others,’ we should have all felt very much aggrieved. Of course the circumstances under which the . ruling in question was . given were quite exceptional. I must confess that when I heard it given, I regarded it as one of the most extraordinary that I had ever known of,. I am sure the sense of the House is entirely against the idea that an honorable member should be debarred from repeating an argument previously used by another speaker. However careful honorable members might be in their efforts to avoid a conflict with the Chair, such a ruling would have the effect of stifling debate. Many honorable members have prepared second-reading speeches, and have failed to catch the Speaker’s eye until the debate has proceeded at some length. They have then found that many of their arguments have been anticipated, and that the ground has to some extent been cut from under their feet. If, under such conditions, you, sir, were to rule that the House could not listen to me, for instance, merely because I was repeating arguments that had been previously employed, I should_ consider that you were dealing with mp very arbitrarily. For the reasons I have stated I think we should be very careful to guard our privileges. I am ready to pay due respect to the Deputy Chairman, who may think that he was perfectly justified in the ruling he gave. If, however, he made a mistake, it would be well for him to acknowledge it, and to allow the matter to rest there. If the motion is pressed, I shall have to ‘vote for it.
– It seems to me that during the last few minutes we have drifted into a very serious position. If we negative the motion we shall, in effect, affirm in its bald outline the ruling of the Deputy Speaker. I think we should pause before we adopt that course, as it would carry us further than any honorable member would desire to go. By supporting the Deputy Speaker in his ruling, we shall affirm a principle which may have the most serious effect upon our debates. I should like to see the motion disposed of by means of some amendment, or by some statement of the Deputy Speaker to the effect that his ruling, which was given in the heat of debate, went further than on calmer consideration he thinks lit ought to have gone. It would be better to overcome the difficulty in some such manner, rather than to negative the motion, and thus affirm a most dangerous principle.
– As one of those who raised a protest at the time that the ruling was given, I must say that I do not think that the Deputy Speaker intended it to be construed in the broad sense in which it has since been interpreted. It would be clearly wrong for us to affirm the principle that no honorable member should be entitled to repeat an argument that had been previously used. In justice to the Deputy Speaker, I must say that I understood his ruling as conveying what was said bv Mm after. I had wthdrawn my opposition. In the heat of debate, I should not have been likely to withdraw my opposition if I had understood the ruling as it is now construed.
– Did not the honorable and learned member understand the ruling to apply to the particular occasion and the circumstances ?
– I am quite willing to’ accept the Deputy Speaker’s assurance to that effect. At the time, I certainly understood the ruling to mean what was implied iri the statement made by the Deputy Speaker, as recorded at page 5369 of Hansard, and I think that a, few words of explanation from the honorable gentleman will entirely remove all apprehension on the subject. It would not be possible for us to carry on our proceedings under the ?ame rules as to limitation of debate, as might with propriety be applied to an unified Parliament. A statement may gain considerable weight by repetition, owing to the fact that honorable members represent so many different States, and so many different sections of the electors of the Commonwealth. No disadvantage could attach to allowing one honorable member after another to speak in the same strain upon such a subject, for instance, as the remission of fodder duties in a time of drought. The very multiplicity of statements might afford the best possible ground for interfering with the Tariff, and dislocating trade arrangements. Therefore, the repetition of argument in certain cases may be desirable, and in keeping with a strictly relevant discussion. If the ruling were interpreted in the strictest sense, the representation of the States might be to a large extent stifled, and the citizens of those States would have to look to the Senate, instead of this House, to protect their interests. I am bound to say that I understood the ruling to have particular reference to the time and to the circumstances under which it had been given.
– It was after the honorable and learned member had withdrawn his opposition that the ruling was given in its general form.
– I certainly understood the ruling to have direct reference to the circumstances under which it was given. That being so, I could readily accept the Deputy Speaker’s assurance that that was the case. The honorable member for Illawarra has already indicated his willingness to accept such an assurance.
– It seems to me that the possibility of the motion being rejected opens up a new prospect so far as some of the electors of the Commonwealth are concerned - particularly those who happen to be pressmen or Hansard reporters. If honorable members were compelled to refrain from repeating arguments that had already been used, great relief would be afforded to pressmen and others who have to report our utterances, and the duration of the average session would be materially shortened.
– I object to the honorable member using my arguments.
– So fax, I do not think that any honorable member has used the argument I am now presenting.I think that the prospect to which I have referred, is one that we may well ponder over, and I am inclined to vote against the motion, purely from that point of view. One honorable member has suggested that probably I, as well as other honorable members might fall under the whip of the Deputy Speaker in this relation. That is quite possible. We have all sinned in some respects by repeating arguments which have been previously used in debate. That, however, is no excuse for deliberately laying ourselves out to repeat those arguments.
– How many times has the honorable member himself offended?
– The fact that I have offended is no reason why we should deliberately lay ourselves out to repeat arguments.
– There is nothing about’ deliberately laying ourselves out to repeat arguments in this ruling.
– The trend of the arguments used by honorable members upon the other side of the Chamber is that we shall be disadvantaged unless we are allowed to repeat arguments. That is not a justifiable attitude to assume so far as the House in its corporate capacity is concerned. It is not a good thing that we should encourage the repetition of arguments in this House, whether by one man repeating himself or repeating the arguments of another honorable member.
– It is not a question of “ encouraging,” but of preventing repetition.
– If I had to choose between the two alternatives, I should Choose against repetition–
– Because the honorable member speaks for the whole party which he leads when the caucus has decided upon a certain line of action.
Mr.WATSON. - The honorable member was closely associated with the Labour Party in New South Wales, when it was supporting the Government of which he was a member, long enough to know better than that. He knows that his statement is not correct.
– That is the view that the honorable member wants to put forward.
– Except upon a very few matters, I am not entitled to speak for the party of which I happen to be the leader to-day. Certainly I do not speak for that party upon this question. I would suggest to the honorable member for Illawarra that, after all, we have the ruling of Mr. Speaker upon this matter, and it seems to me that that is the only ruling to which effect is likely to be given, so far as this House is concerned. Leaving out of account the possibility of altering the standing order so as to make it more strict than it is, I take it that the ruling given by Mr. Speaker several times during the debate of last week points to an insistence upon the repetition being “tedious “ before an honorable member is ruled out of order. Irrespective of whether we carry or reject this motion, Mr. Speaker’s1 ruling will stand. I am content to leave the matter there. I would ask the honorable and learned’ member for Illawarra to make some allowance for the fact that not only honorable members, but possibly Mr. Deputy Speaker, may easily have been “ rattled “ to some extent by the experience to which the occupants of the Chair had been subjected owing to the action of the Opposition. Some allowance might fairly be claimed by each of us in respect of anything that was said during those weary hours.
– Has not that statement been made over and over again by honorable members upon this side of the House?
– All this is “tedious “ repetition.
– If that be so, I am quite willing to resume my seat. I would suggest that the honorable member should obtain an authoritative ruling upon the point which he has raised. In conclusion, I would urge the honorable and learned member for Illawarra to withdraw the motion.
– I think, sir, that perhaps I had better say a word or two in regard to this matter. In doing so, I desire to reciprocate the very hearty expressions of good-will which have fallen from the lips of the mover of this motion. I recognise at once the inherent right of every honorable member - and I should’ be the last to interfere with iti - to dissent from any ruling- which may be given. I. also feel that the decision of this House will be of a strictly impersonal and non-party character. In the first place, I should like briefly to relate the circumstances under which mv ruling was given. Those circumstances must be taken into consideration, and I do not think some of the instances given are apposite. The adjournment of the debate had been moved, “ and several honorable members had addressed themselves to the motion. The honorable and learned member for Illawarra then rose to advance reasons in support of it. He spoke for some time, and then attempted to use the condition of the officers of the House as an argument in favour of the proposal to adjourn. I drew his attention to the fact that that argument had been previously used in the debate. I hive looked up Hansard, and I find that it was employed by two honorable members, namely, the honorable and learned member for Wannon, and the honorable member for Macquarie. I had a distinct recollection of it having been used, and I drew die attention of the honorable and learned member for Illawarra to that fact, but did not give an v ruling. He then asked whether the fact that an argument had been previously used by another honorable member would debar him from repeating it. I then gave my main ruling, which was not quoted by the honorable .and learned member for Wannon, but which was read by the honorable and learned member for Corinella. It is as follows : -
Mr. Speaker has already ruled, and it is in accordance with the practice of the House of Commons, that repetition may consist not only of a re-statement of a matter by the honorable member who is addressing the House, but also of .a re-statement of the arguments of those who have preceded him. As the statement which the honorable member was making has already been made by other honorable members, I ask him not to repeat it.
That ruling was at once questioned by the honorable and learned member for Werriwa, who handed me a dissent in writing, which I ruled out of order, because to my mind 5/t did not express the ruling which I had given, either fully, or even impartially. The honorable and learned member then withdrew his dissent, but in the meantime the honorable and learned member for Illawarra had prepared another. Between the period when I gave the ruling, and ‘that at which the dissent was handed in, the matter had been referred to two or three times. There was a good deal of confusion prevailing, and directly the Hansard proofs were supplied to me, I noted that where I used -or intended t’o use - the plural, the singular had been employed by the reporter. _ Following the usual practice, had I considered it desirable. I would certainly have made my subsequent rulings agree with the original ruling, by altering the latter to the plural. That is the point to which the honorable and learned member for Corinella has alluded. When the honorable and learned member for Illawarra handed in his dissent, I felt that it did not express my ruling, and honorable members will recollect that I suggested at least one alteration in it. But 1 had .another alteration in my mind - an alteration to the use of the plural. As, however, the honorable and learned member was anxious that I should accept his dissent, I did so. At the same time, I feel that it does not express the original ruling which I gave. That ruling, I desire to say, was quite in accordance with the ruling of Mr. Speaker, and also with the practice of the House of Commons.
– It involves a very dangerous restriction of liberty
– I am not responsible for that. The occupant of the Chair is bound by precedent just as much as hon- orable members themselves are bound by the Standing Orders. I feel, however, that the honorable and learned member for Illawarra believed - though other honorable members did not - that in my ruling I had used the singular, and that I had stated that an honorable member would not be in order in repeating an argument which had been used by another honorable member.
– The honorable member approved of the terms of my dissent.
– I gave no ruling upon it. I said that it did not express my ruling. The honorable and learned member then asked in what respect it did not express it, and I told him that it did not contain the words “in the same debate.”
– I altered it accordingly.
– That is so. But the honorable and learned member can understand that during a time of commotion it is not possible to take a note of everything. I did not feel satisfied with the form of his dissent then, and I certainly do not fee’, satisfied with it now.
– Do I understand that the honorable member adheres to his first ruling?
– Yes, to my original rul-ing. I think that it should stand. I will frankly admit that I was in some doubt as to whether I had the power to refuse to accept the dissent of the honorable and learned member for Illawarra in the form in which he had drafted it. But he very kindly agreed to alter it in one regard, and I feel sure that had the atmosphere been calm I would have requested him to amend it in another direction, and that probably he would have done so. ‘
– I hesitate to add to this debate, and should not have done so but for the remarks of the honorable member for Bland. If anything would induce me to advise the honorable and learned member for Illawarra to withdraw his motion it is the attitude which has been assumed towards it by the leader of the Labour Party, who even yet seems to be almost savage in his desire to stifle debate. I see no trace of his calming down upon that matter, even after having secured possibly the severe application of the closure rules to future debate. One would have thought that the honorable member would have been a little saner and calmer after his recent triumph. However, he still appears to catch at any straw which will justify him in stifling the arguments of opponents. As the honorable member for Macquarie interjected, that is all verv well from the honorable member’s point of view. Everybody knows that there has not been very much in the nature of repetitive arguments from the Labour corner recently, and really there has been no need for it. I should imagine that repetition on the part of honorable members sitting there goes on in quite another place, so that further repetition in the House is unnecessary. Consequently we find the honorable member for Bland voicing the opinions of the caucus, and scarcely any other honorable member of it giving utterance to the sentiments of the party. That may be a very commendable thing from the stand-point of party discipline, but it does not apply to other parties in the same way.
– The honorable member himself was very dull when he sat in this corner last session.
– I am not aware of it. I am afraid that I was not in the sense in which the honorable member is referring to the matter. However, I do not wish to talk about last session. We have quite enough to do in focussing our attention upon this session. While the honorable member for Bland was perfectly justified from his point of view in advancing the arguments that he did, and in catching at a mere straw thrown to the wind by the honorable and learned member for Werriwa in order to provide himself with some justification for proceeding further to stifle debate. I think that a broader and saner view of the matter will show him that he is entirely wrong. The ruling of Mr. Deputy Speaker, if it be upheld, means neither more nor less than the application of another form of closure, even more direct and effective than any of the forms which have already been adopted by the House. I venture to submit that, the House has no intention of placing any such arbitrary power in the hands of any speaker, neither is there any constitutional justification for so doing. Certainly there is no authority for such a proceeding. When the honorable member for Laanecoorie rose to make his explanation, I expected that he would have seen fit to modify in some way the attitude which he assumed upon the occasion to which allusion has been made. Instead of that, he finds fault with the drafting of the motion., and emphasizes his view as to the correctness of his ruling on the occasion referred to. He attempts to buttress his own ruling upon that occasion by the ruling given previously by Mr. Speaker in relation to the same question. Therein I think he makes a very great mistake. I draw a clear distinction between the unqualified statement of Mr. Deputy Speaker arid the more qualified statements of Mr. Speaker in relation to this point. When Mr, Speaker gave his ruling, he pointed out that it was not in. order to repeat arguments to which utterance had already been given “ in the same way “ by other honorable members. Then, again, he used the qualifying words, “ in the same relation.” That makes a vital distinction.
– Does not Mr. Deputy Speaker say that he withdraws everything in his ruling which varies from that by Mr. Speaker, upon which it was based, and also that he has been misreported.
– I did not hear the honorable member make that statement.
– He said that the first ruling given by him was correct, but that those which followed, so far as they differ from it, were inaccurate.
– He said in his first ruling that -
Mr. Speaker has already ruled, and it is in accordance with the practice of the House of Commons, that repetition may consist not only of a re-statement of a matter by the honorable member who is addressing the House, but also of a re-statement of the arguments of those who have preceded him.
– In that case it was simply said that repetition “ may “ consist of a re-statement. There was no mention of tedious repetition.
– That is so. Mr. Speaker went further, and said that arguments were not to be repeated in the same way and in the same relation. He meant; no doubt, that honorable members should not be permitted to continue droning out statements uttered in almost identical language by other honorable members. I do not cavil at Mr. Speaker’s ruling. It is a wise restriction to place upon debate. But I do not think that he intended to lay down the rule that there should be no repetition of argument in connexion with any matter before the Chair. Such a ruling would mean that only two or three honorable members would be permitted to speak on any question. There are certain well-defined lines of argument in connexion with almost every debatable subject that comes before the House. Take the union label clauses of the Trade Marks Bill, with which we are to deal almost immediately. If an honorable member is not to advance arguments against the union label on the ground, for instance, that it may lead to boycotting, there will be little debate on the whole subject. When we come to discuss the union ‘label clauses, one or two arguments will form the staple of the whole of the opposition to them.
– “Come” to discuss them ! Have we not already discussed them for three or four days ?
– Perhaps that is why the honorable member wishes to clutch at this straw - to shut down debate,
– I thought that the honorable member had shot his bolt.
– I trust that the honorable member will rely upon the “ gag” which he already possesses rather than try to bring another “gag” to bear through the medium of Mr. Speaker, or the Chairman of Committees. Unless reasonable latitude be allowed in the repetition of the main arguments relating to amy question, we may as well have no further debate. I take it that the qualifying words used by Mr. Speaker, in delivering ‘the ruling to which ^reference has been made, cause it to differ in a vital degree from the ruling of Mr. Deputy Speaker. It may be that we should’ have regard to the circumstances in which the ruling was given, and under which debate had taken place ; but, making every allowance for those circumstances, I do not consider that the explanation
Mr. Deputy Speaker has given has made it one whit clearer or more favorable from his point of view. Since hearing the speech made by the honorable member for Bland, I am more averse than ever to this motion being pushed to a vote, inasmuch as it is clear that, irrespective ofthe consequences that may happen when he is on this side, and struggling against great odds, as we appear to be doing, he is ready to give his support to any proposal that will have the effect of curtailing debate. I hope, therefore, now that the matter has been ventilated - and particularly as we have recognised the difference between the qualifying words used by Mr. Speaker, and those used by Mr. Deputy Speaker - we shall not proceed to a division, but allow the matter to remain in the hands of Mr. Speaker, and trust to his wisdom and guidance in future debate.
– I should like to know whether, if the ruling of Mr. Deputy Speaker be upheld, every honorable member who is not an original genius will be excluded from taking part In our debates? Would it mean, for instance, that the honorable member for Darwin, in the event of an attack being made upon him, would not be at liberty to re-state the arguments used against him, and to answer them ?
– Under this ruling, the honorable member would be absolutely shut out.
– We have millions of imitators, but very few original thinkers. If we were precluded from following the language and ideas that have been expressed by others for thousands of years, no honorable member could make a speech. I have heard little originality in this House, and it seems to me that it is essential to our well-being that there should be repetition. The present is only an evolutionary repetition of the past. As the ruling, if upheld, would cause the Opposition to give up hope, I feel that I should support Mr. Deputy Speaker, but having regard to the rights and liberties of the House, I feel that I ought to support the action of the honorable member for Illawarra. On this question, therefore, I am a “Yes-No” man, and I therefore trust that the motion will not be pressed. If it is, I shall have to think very seriously, and that is what I do not wish to do. In this country everything prospers, but no one thinks, and that is what I do not wish to be called upon to do.
Mr. FULLER (Illawarra). - I regret that so much time has been occupied in discussing the motion, but feel that the way in which it has been received affords ample justification for my action in submitting it. In view of the statement made by Mr. Deputy Speaker, that his original ruling is correct, and that those which followed are hardly in accordance with that which he intended, I think that I ought not to press the motion. I therefore beg leave to withdraw it.
Motion, by leave, withdrawn.
Sir JOHN FORREST laid upon the table the following paper: -
Banking returns of the States of the Commonwealth and New Zealand for quarters ended 30th June, 1904, and 30th June, 1905.
In Committee (Consideration resumed from 28th November, vide page 5899) :
Clause 38 agreed to.
Clause 39 -
Every notice of opposition shall state an address for service, and if the opponent is not in Australia the address for service shall be at some convenient place in Australia. The address so furnished shall be a sufficient address for the service of any noticeor any legal or other proceeding in connexion with the trade mark the subject of such opposition.
Amendment (by Mr. Isaacs) proposed -
That all the words after “ service,” line 2, be left out, with a view to insert in lieu thereof the words “ in Australia as an address for service.”
– Is it necessary that we should require an address within the Comonwealth to be furnished in respect of notice of opposition?
– Yes, we might otherwise have vexatious opposition.
– Suppose a man gave , “South America” as an address for service.
– I have in mind the position of a man living in the old country, who registers a trade mark here. Why should he be called upon to give an address within the Commonwealth ?
– If such men desire to secure an Australian right they ought to give some address in Australia to which notice of opposition may be sent.
– A trade mark might have changed hands, and the owner of it might be living, abroad.
– If A applies for registration, and B opposes him, A at once says : “ I wish to fight you, and therefore desire to know at what address in Australia a notice may be served upon you.”
Amendment agreed to.
Clause, as amended, agreed to.
Clause 40 agreed to.
Clause 41 verbally amended, and agreed to.
Clause 42 agreed to.
Clause 43 -
– An earlier clause provides that where the Registrar refuses to grant an unopposed application, an appeal may be made to the Law Officer before an appeal is made to the Court. I understood the Attorney-General to say that that arrangement has been found advantageous in many cases. But when the Registrar has given a decision in favour of one of two or more opposing parties, I doubt the wisdom of allowing an intermediate appeal to the Law Officer.
– Under clause 45, if both parties consent, they may go direct to the Court.
– The wealthier party may try to force his opponent through all possible stages.
– The appeal to the Law Officer would not cost very much, because no counsel would be required.
– Counsel is briefed at times in connexion with important applications. Under clause 35, the applicant may appeal direct from the Registrar to the Court, but under clause 45, both parties must consent before a direct appeal can be made to the Court. I think that if either party wishes to go direct to the Court, there should be no intermediate appeal to the Law Officer. I doubt whether the hearing of cases before the Law Officer prevents ultimate appeals to the Court in an appreciable number of instances. If contending parties have fought before the Registrar, they are not likely to be satisfied with the decision of the Law Officer, who, whether he be the Attorney -General or the Crown Solicitor, may not necessarily be an expert in trade marks law. I ask the AttorneyGeneral to make no provision for an appeal to the Law Officer in the case of an. opposed application.
– I do not object to amend clause 45 to make it read, “ If either party desires,” instead of “ If both parties consent.”
– I think that the appellant from the Registrar’s decision should have the right to say to whom he will appeal. The simplest thing to do is to allow an appeal direct to the Court from the Registrar in the case of opposed applications. Under the English law, the decision of the Registrar is subject to appeal to the Court, or, with the consent of the parties, to the Board of Trade, which is the exact opposite of the provision in the Bill.
– The effect of amending clause 45, as I suggest, would be to make our law similar to the English law.
– I think that it would be better to provide that any party aggrieved by the decision of the Registrar may appeal to the Court direct, or, if both parties consent, to the Law Officer.
– The decision of the Board of Trade is final.
– Yes. In England there is only one appeal from the decision of the Registrar - to the Court, or, if both parties consent, to the Board of Trade. I suggest to the Attorney-General that we should provide for only one appeal here - to the Court, or, if both parties consent, to the Law Officer. I do not think that the Law Officer would have much to do under such circumstances. In my opinion, it is undesirable to have an intermediate stage.
– I have obtained a special report on this subject, which supports me in the opinion that, if it were provided that all cases should be taken to the Court, the result would be that in trivial matters a man would have either to abide by a decision of the Registrar, at which he felt aggrieved, or to undertake very expensive litigation.
– I think that in ninety-nine cases out of 100, the decision of the Registrar will be as good as that of the Law Officer.
– It may or it may not be. I think that the case will be met if we provide, in clause 45, that if either party desires, the appeal may be direct to the Court. I do not think that both the parties should be forced to the Court.
– I did not suggest that. I suggested that if both parties consented, they might appeal to the Law Officer.
– I could understand that arrangement if the decision of the Law Officer were final ; but I think it would be almost a nullity to make it so.
– The appellant may wish to go to the Law Officer, and the other party to the Court.
– I would give either party the right to appeal to the Court direct. It must be remembered, however, that if they appeal to the Supreme Court, there is a possibility of a further appeal to the High Court. If the appeal in the first instance is to the Law Officer, the party who loses may agree to end the proceedings, as he has not lost very much ; but if the appeal is to the Court, and the decision carries heavy costs, there will be an inducement for the losing party to proceed still further. I think that we should allow applicants to avail themselves of the cheapest procedure, and that we shall go far enough if we provide that, if either desires, the appeal shall be to the Court.
– I think that the honorable and learned member for Corinella should be satisfied with the arrangement suggested by the Attorney-General. I am almost prepared to leave the clause as it stands. I would not put it in the power of one party to say that he would not use the Law Officer. It must be remembered that the Court referred to is the Supreme Court of Victoria, or the High Court, and, probably, parties in a distant State like Western Australia would not like to be dragged to Victoria.
– They would be dragged to Victoria if the appeal were to the Law Officer.
– But that appeal would be a much more simple affair than an appeal to the Court.
– Whatever may be. the result of the appeal to the Law Officer, the dissatisfied party may appeal again to the Court, so that I am prepared to give both parties the option in the first instance.
– Could not clause 43 be amended to read -
Any party aggrieved by the decision of the Registrar may in the time and in the manner prescribed appeal to the Court or to the Law Officer?
Then there would be no need for clauses 44 and 45.
– That would give the option only to the appellant.
– It is only the party who is aggrieved by the Registrar’s decision who would wish to appeal.
– The other party may say, “I prefer to go direct to the Court.”
– The decision should be final, whether the appeal is to the Law Officer or to the Court.
– We cannot make it final.
Clause agreed to.
Clause 44 agreed to.
Clause 45 amended to read as follows, and agreed to : -
If either party so desires and gives written notice thereof, the appeal shall be taken direct from the Registrar to the Court without any appeal to the Law Officer.
Clauses 46 to 48 agreedto.
Clause 49 -
Amendments (by Mr. Isaacs) agreed to -
That the words “Subject to this Act” be inserted at the commencement of the clause.
That the word “ absolutely,” line 3, be left out; and that the words “or dealing,” line 5, be left out.
– I wish to know whether sub-clause 2 is in its proper place? I do not see what the question of entry of name has to do with the assignment or equities arising in connexion with an assignment. This sub-clause appears to have crept into the wrong place. After reading the first sub-clause, I should never have suspected the presence of subclause 2, because it does not seem to have anything to do with the rights of a registered proprietor as to assignment. Subclause 3, although connected with subclause 1, is not quite properlyplaced in the clause. Sub-clause 2 should come under the part of the Bill headed “Registrable Trade Marks.”
– This clause deals with effective registration. If a man has a name as part of the trade mark, it is provided that the registration shall not affect the rights of an owner of the same name.
– What has that to do with assignment?
– It has nothing to do with assignment, but deals with the effect of registration. Registration does not give the proprietor of the trade mark exclusive right to the name which forms a part of it. I do not know of any better place to insert the sub-clause.
Mr. LONSDALE (New England).The contention of the honorable and learned memberfor Corinella with regard to sub-clause 2 should be borne in mind. In my view it should form a separate clause, because it has nothing to do with’ assignment. Very often a mistake is made by lawyers, owing to provisions being grouped under the wrong headings.
Clause, as amended, agreed to.
Clause 50 -
The registration of a person as proprietor of a trade mark shall beprima facie evidence of his right to the exclusive use of the trade mark upon the goods in respect to which it is registered.
Amendment (by Mr. Isaacs) agreed to-
That after the word “ registered,” line 4, the words “ and of the validity of the registration “ be inserted.
Clause, as amended, agreed to.
Clause 51 -
The registration of a person as proprietor of a trade mark shall, after the expiration offive years from the date of registration (in the absence of fraud) be conclusive evidence of his right to the exclusive use of the trade mark inrespect of the goods in respect of which it is registered. . .
For the purposes of this section user shall be deemed to be continuous if there has been no actual interruption thereof for a longer total period than twelve months.
Amendment (by Mr. Isaacs) agreed to -
That after the word “ evidence,” line 4, the words “ of the validity of the registration and subject to this Act “ be inserted.
– I wish to direct the attention of the AttorneyGeneral to the definition of “user” at the end of the clause. It seems to me that although we may find similar provisions in other Acts, we may, by adopting, these words, present opportunities for doubtful practices. It is provided that for the purposes of “the clause, “ user “ shall be deemed to be continuous, if there has been no interruption for a longer total period than twelve months. It appears to me that a man might use a trade mark once a year for five years.
– That would not do. There must not be a longer total interruption than twelve months. The trade mark must have been used for four years out of the five years.
Mr.Wilson. - I should like to ask the Attorney-General why it is necessary to provide for such a long period as five years?
– That has been the law in Victoria for many years, and the term fixed in the latest English Act is seven years. I” do not think that we should shut out every one until five years have elapsed.
Clause, as amended, agreed to.
Clause 52 agreed to.
Clause 53 -
Provided that any tribunal, in deciding on the question of infringement, shall admit evidence of the usages of the trade in respect to the get-up of those goods and of any trade marks or get-up legitimately used in respect of them by other persons.
Amendment (by Mr. Isaacs) agreed to -
That the words “ Provided that any tribunal in deciding on the question of infringement “ Be left out, with a view to insert in lieu thereof the words “ in an action for the infringement of a trade mark, the Court in trying the question of infringement.”
Clause, as amended, agreed to.
Clause 54 agreed to.
Clause 55 -
At the prescribed time before the expiration of fourteen years from the date of the last registration of a trade mark, the Registrar shall send notice in the prescribed manner to the registered proprietor of the date at which the existing registration will expire. . . .
Amendment (by Mr. Isaacs) proposed -
That after the word “ proprietor,” line 5, the words “or his agent” be inserted.
– Would it not be desirable to insist upon the appointment of an Australian agent?
– That is a matter for regulation.. The applicant must give his address.
– Yes; but that is only at the time that the application for registration is sent in, after the expiration of fourteen years. It seems to me that we should require the employment of an Australian agent.
– I have no objection to add the words “ in Australia.”
Amendment amended accordingly.
– I cannot see that the amendment is necessary, because an applicant is likely to employ an agent in Australia, and there is no necessity to compel him to do so.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 56 and 57 agreed to.
Clause 58 -
A trade mark when registered may be assigned’ and transmitted only in connexion with the good-will of the business concerned in the particular goods in respect of which it has been registered and shall be determinable with that good-will
Amendment (by Mr. Isaacs) agreed to -
That after the word “ goods,” line 4, the words “ or class of goods “ be inserted.
Clause, as amended, agreed to.
Clause 59 (Apportionment of marks on dissolution of partnership).
– It seems to me that this clause might create a great deal of difficulty. I should like to know how the apportionment would be made in the event of a partnership being dissolved, and of the partners agreeing to divide the interest in a trade mark. It may happen that two partners in, a firm possess only one trade mark in respect of a certain line of goods. Should they dissolve partnership, it seems to me that some confusion would result in the matter of the future application of that trade mark throughout Australia. I should like some information from the Attorney-General as to how such a difficulty would be settled under the terms of this clause?
– The Court would have to decide that matter.
– The appeal would lie to the Attorney-General. Should both members of a firm which has dissolved partnership continue in business, how would the trade mark which was held by them be apportioned ? It seems to me that considerable difficulty would be experienced in that connexion, and I should like some information upon the subject.
– There is one other point to which I desire to direct the attention of the Attorney-General. Let us suppose that a person is carrying on business in six States, and that he disposes of his Victorian business. I do not see any provision in this clause which would enable him to assign his interests so far as Victoria is concerned.
– Clause 58 would apply in that case.
– I do not think that that provision covers it.
– Not when the honorable and learned member reads it in conjunction with clause 49?
– But that clause says “ subject to this Act.”
– That provision confers the necessary power, unless there is something to the contrary in the Act.
-Part V. of this Bill describes how assignments may be made, and I thinkexpressio unius will exclude other methods of assignment. If I were carrying on a business in six States, and I disposed of the Victorian portion of it to Jones, I should not be able to assign to him my interest in a trade mark so far as this State is concerned. I fail to see why I should not be able to do so.
– Is not that power conferred by clause 49 ?
– That clause provides that “subject to this Act” assignments may be made. Then Part V. declares how they may be made. Clause 58 says -
A trade mark when registered may be assigned and transmitted only in connexion with the goodwill of the business concerned in the particular goods in respect of which it has been registered, and shall be determinable with that good-will.
But in the case which I have instanced, only a part of the business would be assigned.
– I think that one may assign the good-will of a business.
– Perhaps the AttorneyGeneral will take a note of my point. I think that the words “ subject to this Act “ in clause 49 limit us to the powers of assignment given by Part V. of the Bill.
– Does not clause 49 relate to anabsolute assignment of a trade mark, and not merely to the assignment of a part?
– No. the word “ absolutely “ has been struck out.
– Clause 68 appears to confirm the view which I entertain, and to which I hope the Attorney-General will give some attention.
Clause agreed to.
Clauses 60 to 64 agreed to.
Clause 65 amended to read as follows and agreed to -
Documents purporting to be copies of or extracts from the register, and to be certified by the Registrar, and sealed with the seal of the Trade Marks Office, shall be admitted in evidence in all Federal and State Courts without further proof or production of the original.
Clause 66 -
No person shall wilfully -
make any false entry in the register; or
make any writing falsely purporting to be a copy of an entry in the register ; or
produce or tender in evidence any writing falsely purporting to be a copy of an entry in the register.
Penalty : Three years’ imprisonment.
– I notice that this clause provides for the imprisonment only of persons making false entries in the register. I wish to ask the AttorneyGeneral whether he thinks that fact may not incline the Court to give the accused the benefit of any doubt which may exist more frequently than he is entitled to it?
– These cases will be tried by a jury.
– That fact makes my argument still more cogent.
– The offence with which the clause deals is equivalent to forgery. The honorable member would scarcely let a forger off with a fine.
– All the offences provided for in the clause are not equivalent, in all cases, to forgery.
– They practically amount either to forgery or uttering.
– If all the legal members of the Committee are satisfied that the offences in question are tantamount to forgery, why should the penalty prescribed in this clause be less than that which i° prescribed in ordinary cases of forgery? Why should not the maximum penalty be inflicted? I suppose that that penalty is about ten years’ imprisonment.
– It varies a good deal in the different States.
– Why not make the penalty in this case seven years’ imprisonment ?
– The honorable member rose with the idea of making the provision more lenient.
– I rose with the object of making it more lenient in order that more convictions might be secured. But inasmuch as I have been assured that the offences which are enumerated in this clause are equivalent to forgery, I fail to see why we should not impose a severe penalty.
– I think that three years’ imprisonment is a heavy penalty. If that will not deter a man from committing these offences, seven years’ imprisonment will not do so.
– Upon the same principle, if a week’s imprisonment will not deter a man from committing an offence, three years’ imprisonment will not.
– No scientific measure can be applied to a matter of this sort.
– If the offences for which the clause provides are tantamount to forgery, we ought to impose the same penalty as is provided in ordinary cases of forgery.
– Why not make the penalty harmonize with the criminal code ?
– I am quite prepared to do that.
– There is no Commonwealth criminal code.
– But we know what is the usual penalty for forgery in Australia.
– Let the honorable member move to increase the penalty to seven years’ imprisonment.
– I do not wish to do that on the spur of the moment, because I have no desire to delay business.
– The offences enumerated in this clause are really criminal acts, and their perpetrators ought to be imprisoned.
– All forgers are not equally culpable.
– Then why not impose a fine instead of imprisonment for the less venial of these offences? I maintain that the Judge ought to be in a position to inflict the maximum’ penalty if he wishes to do so. For that reason I move -
That the word “Three,” line 8, be omitted, with a view to insert in lieu thereof the word “ five.”
– I agree with some of the arguments of the honorable member for Wentworth, but I disagree with “others. For example, he asked why a fine, in lieu of imprisonment, should not be imposed for the offences mentioned in this clause. I contend that the Committee ought to steadfastly set its face against any suggestion of that sort. It may very easily happen that a person occupying a good position may commit forgery!, and in such circumstances even a fine of ^100 would not constitute adequate punishment. It would be perfectly ridiculous to fine a man £100 for committing an offence that might enable him to make thousands of pounds. I hold that the Court should be given power to impose a very severe sentence for an offence under this clause. If the amendment be accepted, the Court will be at liberty to make the punishment fit the crime.
Mr. GLYNN (Angas - I do not think that it is necessary to debate the proposal made by the honorable member for Wentworth. Gradations of forgery are recognised by the ordinary Crimes Acts, and forgery of certain documents is punished with greater severity than is the forgery of others. The offence dealt with in this clause is morally, although not technically, equivalent to forgery, and three years’ imprisonment will be the maximum penalty. It will be open to. a Judge, in dealing with an offence against this clause, which he does not regard as a serious one, to order a short term of imprisonment, and, under the Acts Interpretation Act, without hard labour,
Mr. KELLY (Wentworth).- If there be different kinds of forgery, the type with which this clause deals may possibly be one that we should punish with the utmost rigour. The average case of forgery affects the rights of only one man, but the forgery of a trade mark would affect the rights, perhaps, of a whole community. I have the utmost diffidence in putting my views in this regard against those of members of the legal profession.
– Would the honorable member sentence a man to five years’ imprisonment for forging a union label ?
– I should give a Judge full discretion to impose up to five years’ imprisonment for the forgery of any label. The position put by the honorable and learned member for Angas is not a new one. The Judge dealing with the offence is the proper authority to discuss the extent of the offender’s culpability. Some honorable members have failed to recognise that, where there is a possibility of making a great profit by wrong-doing, a severe penalty must be provided as a deterrent.
– What large profit could be made by doing any of the acts forbidden by this clause?
– It deals merely with an offence against the register.
– Any offence under this clause must necessarily be an offence against the community, since a trade mark is a guarantee of value to the consumer. If we increase the penalty from three to five years’ imprisonment, it will still be open to a Judge dealing with an offence under the clause to refrain from imposing the maximum sentence. Surely we can trust our courts with the proper administration of justice. Surely we do not desire to have one set of penalties for the rich and another for the poor. A wretched bank clerk, drawing £60 per annum, who forges a cheque for £5, may be imprisoned for ten years, and yet it is proposed that, in the case of a rich corporation, which may, by uttering a forgery, gain many thousands of pounds, the maximum penalty for the offence shall be only three years’ imprisonment.
Question - That the word proposed tobe left out stand part of the clause - put. The Committee divided.
Question so resolved in the affirmative.
Clause agreed to.
Clause 67 (Correction of Register).
– If the Attorney General turns to clauses 56 and 57, he will find that a registration that has been removed for non-payment of fees, may be restored upon payment of the necessary fees, but thatno power is given to restore a registration which has been removed for causes other than non-payment of fees, after notice has been given. Under the Victorian Companies Act, the Registrar had power to remove companies from his register; but it was found necessary to bring in an amending Act to empower him, on due cause shown, to restore any name which had been taken off.
– Has the Registrar that power ? I thought the Court had it.
– The Registrar has that power now. I do not care whether the Registrar or the Court is given the power under the Bill; but at present it seems to me that it is. not given at all.
– It is provided for in clause 70.
– I do not think that the provisions of clause 70 meet the case. I do not think that there is any power to restore, even on due cause shown. Perhaps the Attorney-General will look into the matter. There should be power to restore.
– I wish to know why the Attorney-General has omitted one of the powers of correction given to the Registrar in the English Act, namely, to strike out any goods or classes of goods from those for which a trade mark is registered. That power, which is provided for in sub-section 4 of section 32 of the English Act’, seems a ‘desirable one to confer. It might happen that the registered proprietor of a trade mark might wish to disclaim certain classes of goods, and I do not see why he should not have power to do so.
– I will look into the matter. I think there was good reason for omitting this provision ; but I do not remember at the present moment what it was.
– I ask the Attorney-General to consider whether some definition of “ registered proprietor “ should not be inserted. I take it that the registered proprietor referred to in the clause is a proprietor registered under the Bill ; but a proprietor registered under a State Act, whose rights are preserved under the Bill, might require to take some of the steps provided’ for in the clause, and, as the clause stands, could not do sp. If a registered’ proprietor were defined to mean a proprietor registered under the Bill or under any State Act, the case would be met.
– “ Registered! proprietor “ means a proprietor registered under the Bill, and in thi Commonwealth register. The rights, of a man registered under a State Act are protected; but it is not intended that he should have power to alter the Commonwealth register. His rights are preserved, so far as the State register is concerned ; but it would be going too far to provide that a pei son not registered under the Bill shall have power to alter the Commonwealth register.
Mr. G. B. EDWARDS (South Sydney). - Do not other clauses provide for transfers from the States registers to the Commonwealth register?
– As soon as a man’s, name is put on the Commonwealth register, he becomes a registered proprietor in the sense in which the term is used in this clause.
– Is that quite clear ?
– I think so. That is what is intended.
– That is what must happen if State rights are to be preserved, and if it is not provided for, the Bill is defective.
Clause agreed to.
Clause 68 (Registration of assignments, &c).
Mr. McCAY (Corinella).- I wish to draw the attention of the Attorney-General in connexion with this clause to a point which I raised in connexion with clauses 58 and 59. It appears reasonably clear that the measure contemplates the registration of assignments of trade marks, as a whole, and not of assignments of trade marks for territorial areas. Sub-clause 3 of clause 49 provides that any equities in respect of a trade mark may be inforced in the same way as equities in respect of other personal property, which seems to provide for an equitable, that is to say, an unregistered, assignment of a trade mark in regard to any State. I should like the Attorney-General to consider whether such partial assignments should’ not be put on the register. No notice of a trust can be placed on the register, but I understood from the Attorney-General that a trade mark could be assigned in reference to a given area.
– As between parties; but I am not sure that such an assignment can be registered.
– I think that it should be registered, though, of course, there are objections which may be raised to that course. The complications which might be caused are rather imaginary than real.
– A trade mark might be assigned for part of a State, or even for a town.
– Then it might be necessary to say that a trade mark could not be registered for a smaller area than a State. The honorable member for South Sydney has referred to a case 5n which a manufacturer, whose business extended over several States, assigned his interests in each of them to different persons. Similarly such a manufacturer might retain his rights for one State, and transfer them for the other States in which he was interested ; but the persons to whom they were transferred could not, under the Bill, register the trade marks assigned to them. They would have only equitable rights under an unregistered assignment. The whole policy of our registration Acts, however, involves the principle that it is more desirable to have transactions registered than to allow them to remain unregistered! I do not propose to move an amendment, because to meet the case amendments will be necessary in previous clauses. I think that a person to whom a trade mark has been assigned for a particular State should be allowed to register it, instead of having only an unregistered equitable right.
– Could not the registration be limited to rights acquired before the passing of the Bill ?
– That registration is already provided for. One objection to the course which I suggest is that when the rights are split up, trie separate proprietors may alter their trade marks. I quite admit the difficulty, but it seems to me that the great advantage of being able to register an assignment outweighs the disadvantage. We might, for example, provide that when a trade mark is so assigned in part, it should have added to it the words, “ in the State of Victoria,” or some other words, indicating the extent of the assignment. I do not think that this would create any difficulties or complexities in the Trade Marks Office, but, if it did, it would be preferable to have the complications in that quarter rather than as between members of the outside public.
– Personally, I doubt the policy of allowing trade mark rights to be split up in the way suggested by the honorable and learned member. The tendency of our legislation is to widen the area of the operation of trade marks, and to prevent several marks of a similar character from running together. Owing to the operation of the States laws, and the vested rights which have been created under them, we cannot avoid in some cases permitting two or three marks to run together. We have provided that where the same trade mark has been registered! in two different States-; it shall, when extended to other States, be of a Federal character. But there is no provision that the operation of a Commonwealth trade mark should be confined to one State as regards one proprietor, and to other States as regards other proprietors. Such a condition of affairs would be most confusing to consumers, because the same mark might be applied to goods produced by different persons. I do not think we should give the power suggested.
Mr. ISAACS (Indi- Attorney-General). - Whilst we ought to afford every facility for disposing of property in small parcels, we must not lose sight of the fact that we are endeavouring by legislation to arrive at uniformity in regard to trade marks throughout Australia. I can see that it would be very awkward if, in England, a trade mark could be split up so that it could be held by different proprietors in every county, and similarly I can foresee the confusion that would arise if a Commonwealth trade mark were split up into parcels, as it were, for use in different States.
– But we have to deal with past history.
– We have already met the requirements of past history, as far as it is possible to do so. I think that a Commonwealth trade mark ought to be what its name implies. One serious difficulty would arise 4f we adopted the principle of splitting up, suggested by the honorable and learned member for Corinella. Suppose, for instance, that a certain person obtained a Commonwealth trade mark, and was afterwards permitted to sell his rights for Queensland. If a retailer from that State purchased goods from the Victorian holder of the trade mark, and’ took them to Queensland, he would be prevented from landing them.
– That is a serious objection.
– Yes, I think it is, and inasmuch as we have under our Constitution an indefeasible right to freedom of intercourse and traffic between State and State, a provision such as has been suggested would produce serious difficulties. Taking everything into consideration, I think we should preserve the unity of the Commonwealth trade mark as far as we can.
Mr. G. B. EDWARDS (South Sydney). - The argument of the Attorney-General, so far as it relates to future trade marks, is incontrovertible, but I do not think that we have made sufficient provision for the division of interest in rights to trade marks which have grown up under the States laws,. We should certainly pay regard to the necessity for splitting the rights acquired in the past. In regard to those who now have registered rights in one or more States, the question arises whether we should’ not permit them to continue the business arrangements into which they have entered in regard to other States. I would urge the necessity of introducing some simple provision for the transfer of registered trade marks. When the Patents Act was under consideration, provision was made at my instance for a simple transfer of much the same character as that adopted in connexion with the Torrens system of land transfer. Section 21 of the Patents Act provides -
A patent may be transferred by indorsement on the back thereof, signed by the proprietor and the transferee, and on the production of such patent so indorsed the Commissioner shall cause a transfer to be registered.
I desire that some provision of a similar kind shall be embodied in the Bill. I can assure the Committee that at present if I were to purchase a business in connexion with which a registered trade mark was used I should require to execute more documents, and to incur more expense in connexion! with the transfer of the trade mark than in completing the main transaction. I shall move at a later stage that the following new clause be inserted before clause 68:-
The registered proprietor of a trade mark may transfer the same in the form and in the manner prescribed, by indorsement on the back of the certificate of registration signed by the proprietor and the transferee before a justice of the peace, and on the production of such transfer and the payment of any prescribed fee, the Registrar shall register the transfer and issue a new certificate to the transferee.
Such a provision would do away with the necessity for the employment of lawyers, and for the preparation of elaborate documents.
– Would the honorable member confer power to transfer a trade mark apart from a business?
– A trade mark would be utterly valueless, apart from the business. I can assure the.AttorneyGeneral that lawyers have advised me on more than one occasion that, in addition to the deed1 of transfer relating to a business, it is necessary to have still more complicated documents relating to the transfer of a trade mark. My object is to make a trade mark transferable by mere indorsement.
– Would! the honorable member provide that the transfer mus.t be registered ?
– Nothing but a registered! right could be transferred. Upon, the trade mark being indorsed by the transferor, the Registrar would complete the transfer upon payment of a prescribed fee.
– We have in Victoria a similar provision with regard to insurance policies.
– Exactly. That is on all fours with what I intend to propose. At present the transfer of a trade mark may involve the expenditure of ,£30 or ^40, and I am sure that honorable members will be glad to do anything thev can to reduce the legal expenses which business men are now called upon to incur.
– The difficulty is that we have provided that a trade mark cannot be transferred without- a business.
– But I am dealing with the transfer of a business, in connexion with which a trade mark is in use. The possession by an individual of a trade mark, without a business, would be worthless. The purchaser of any trade mark must have a business.
– Under this Bill trade marks can be assigned only with the goodwill.
– But a man’s material assets may have disappeared, and he may be left with only his good-will and his trade mark. We ought to give such a holder of a trade mark - -who will probably be a poor man - facilities for passing it on to the purchaser of his business, so that he may obtain the best value for it. We should not place difficulties in the way of transferring these legal rights. At the present stage I shall content myself with giving notice of my intention to move the insertion of a new clause, which will provide for an easy form of transfer. I think that we ought to give the proprietors of existing trade marks power to “ split “ them up between the various States. We ought to give the registered proprietor of an oldtime trade mark the power to transfer his rights in New South Wales to one man., and his rights in Western Australia or Victoria to another individual. But in regard to rights which may be subsequently acquired) I agree that we ought not to allow any such “ splitting “ to take place.
– I desire to know whether some method cannot be devised by which individuals who have registered similar trade marks under the States Acts will be enabled to register new trade marks without cost, to take the place of the old ones, if they so desire, and if the owners can arrange between themselves to do so. Such a provision would assist to get rid of the confusion that will otherwise arise by the use throughout the various States of the Commonwealth of a number of similar trade marks.
Mr. ISAACS (Indi - Attorney-General). - In reply to the remarks of the honorable member for South Sydney regarding the desirableness of enabling a simpler form of transfer to be effected, I wish to say that at first I thought he was referring - as in the case of the Patents Act, or as was suggested by the honorable and learned member for Northern Melbourne, in the case of life assurance policies - to a short form of transfer to enable property to pass from one person to another. That plan would be difficult to apply in the case of a trade mark, because in connexion with a patent or a life assurance policy the thing which is transferred is transferred by itself. It is the only thing that needs to be transferred. But, in the case of a trade mark, we cannot pass the equitable right in it without passing the right to the good-will of the business in connexion with which that trade mark exists, t understood at first that that was the difficulty which the honorable member for South Sydney desired to overcome. Now, however, I understand that he is thoroughly seized of the fact that, when a person gets a conveyance of property, he has to get it in the old form. But the honorable member wishes to provide that, when a person goes to the Trade Marks Office, he may present a short document to the Registrar, and that that officer shall transfer the name on the registrar. That is all right in itself, and the regulations will provide for it. Clause 79 says -
The Governor-General may make regulations, not inconsistent with this Act, prescribing the fees to be paid under this Act, and all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect Ho this Act, or for the conduct of any business relating to the trade marks office.
That is part of the business relating to the Trade Marks Office.
– That is not sufficient.
– We have prescribed the simplest form possible-
– That may be carried out, and yet a single transfer may never be effected.
– The honorable member’s, idea is that we should provide a rule of the office which would really be a form of transfer.
– Just as was done in the Patents Act.
– What was inserted in the Patents Act is not an office form. It is a sort of statutory provision that when an -individual agrees to sell a patent to another person, between themselves they can execute a document in a simple form, which shall be an effectual legal transfer. There is no objection to that being done- under regulations, and I will see that, as far as possible, it is carried out.
– The AttorneyGeneral might consider the matter before we reach the end of the Bill.
– If what the honorable member desires is not embodied in the Bill,
I will take a note of his point, and see that effect is given to his object under the regulations
– I want the provision inserted in a clause.
– I will take a note of the honorable member’s objection, and, perhaps, he will consider what I have said.
Mr. LONSDALE (New England).What I understand the Attorney-General to say is that a trade mark must be transferred along with the good-will of a business, and that the documents transferring it must be those which contain a transfer of the good-will of that business. Let us suppose that I have a business in connexion with which there is a trade mark, and that
I sell that business upon the understanding that the purchaser is to get the trade mark. It appears to me that there is no need for any elaborate document transferring that trade mark. An agreement can be made to sell both the business and the trade mark. The suggestion of “the honorable member for South Sydney seems to me to be a very simple one, and one which we should adopt. I cannot understand the AttorneyGeneral objecting to it
– I am not objecting to it.
– A trade mark, apart from good-will, is inconceivable.
– This clause seems to me to have within itself the possibility of great protection to all who are interested in trade marks. The desire of honorable members, I understand, is to secure greater facilities and less complication. As the Attorney-General knows, the ordinary transfer of land is effected by one of the most simple documents in the world. By the use of that form, lands to the value of hundreds of thousands, of pounds are annually transferred and registered. Surely some simple form of that character could be adopted by the trade marks authorities. I see nothing in this clause to prevent that being done.
– I take it for granted that the desire of the Trade Marks Department will be to make the procedure as simple as possible. If we have the assurance of the Attorney-General that the intention is that the regulations shall provide for a simple form of registration, enabling a man to secure his title as easily as he may secure a certificate of title under the State Land Act, we should be satisfied. There is nothing in this clause that is likely to cause complications. On the contrary, it will enable .the Department to make ‘the process of transfer as simple as could be desired.
Mr. HIGGINS (Northern Melbourne).We all appreciate the desire of the honorable member for South Sydney that transactions, in relation to trade marks shall be made as simple as> possible. I should like to assist him in giving effect to his desire ; but the difficulty is that it is impossible to transfer a trade mark simply. Although a policy of assurance or a title to land may be transferred, apart altogether from something else, a trade mark cannot.
– We should require to have a statutory form of transfer of good-will.
– That is so. I understand that the Attorney-General has looked into the matter, with a view to ascertain whether he can devise a simple form of transfer, which, on being brought to the office of Trade Marks, could be registered.
– Yes. We should have to pre-suppose a full contract of the business, stock, good-will, and trade mark.
– Quite so. If it were in my power I should not leave the matter to regulations. Looking at the clause to which reference has been made, I am not at all sure that the regulations would cover an assignment. Assignment is not prescribed for by the Bill ; it will not be necessary for the purposes of this measure, and, above all. the regulations may not prescribe that which we wish to have prescribed. What I suggest is that we should insert words providing that a trade mark may be assigned in the form in the schedule, and then in the form, set forth in simple language, we might have the words “ together with the good-will of the business in- .” A man would then see upon the face of the form in the schedule an intimation that he was also to include his business. We could provide in the Bill itself that an assignment might be, not must be, in a certain form, leaving to those who wish to use a very elaborate form of transfer the power to give effect to their desire, but enabling the public generally to ascertain by turning to the schedule that there is a simple form of transfer of a trade mark, together with the business attaching to it. I submit this suggestion to the Attorney-General, but do not think that he should act upon it on -the spur of pressure in the House. He should look into the matter, and see how he could best achieve the purpose which the honorable member for South Sydney has in view.
Mr. G. B. EDWARDS (South Sydney). - There mav be a legal difference between “good-will” and “trade mark”; but I feel quite safe in stating, after some experience, that when I purchase the trade mark of ai business, I secure that business, no matter who purchases the good-will. By way of illustration, let us assume that I purchase the trade mark in respect of Lea and Perrins’ sauce, and that - if it be possible to separate the good-will from the trade mark - another man purchases the good-will. In that event, I feel confident that I should be able to give the purchaser of the goodwill a long start and beat him badly.
– The honorable member would go for the new custom?
– That is so. The trade mark, as the greater, must always include the good-will. I have no objection to the proposal that it shall be stated in the form of transfer that “ trade mark” shall include “good-will,” because a man who parts with his trade mark has nothing left in the shape of good- will to sell. I strongly agree with the honorable and learned member for Northern Melbourne that we should deal with this question in the Bill itself. The Attorney-General has stated that it is the intention of the Government, of which he is a distinguished member, that regulations shall be drafted to carry out the object that I have in view. But that is not sufficient. The Attorney-General may unhappily pass away, politically, and his successor may not be disposed to deal with the matter by regulation.
– It is quite possible to provide for it in the Bill, if that be desired.
– It is not only possible, but eminently desirable. We should then know that our intention was being carried out. Unless we embody our intention in the Bill itself, we shall have only the assurance which the Attorney-General has endeavoured to give us, and the knowledge that Governments, in the discharge of their Executive functions, as a rule do not do more than they are compelled to do. Australia was in the van of progress in the matter of the simplification of the process of transferring land, and scrip, sometimes worth’ far more than is a trade mark, may also be transferred in a very simple way. At my instigation, we have made a similar provision in regardto patents, and I think that we should follow the same course in connexion with the transfer of trade marks.
– I quite agree with the honorable member. It is only a matter of how to give effect to our desire.
– If the legal distinction between “ good-will “ and “ business “ is the real difficulty, let us make the two inseparable.
– We have done that.
– Then the difficulty vanishes. The good-will is something less than the shadow of a trade mark. The trade mark is really the good-will.
– It is part of the goodwill.
– It should be the aim of the Legislature to secure people in the possession of that which is their own, and in the right to trade in it at the least possible expense.
-I will try to do that.
– In some cases it costs from five guineas to forty guineas to transfer a trade mark; whereas if my proposal were adopted a transfer could be made at a cost of from1s. to 2s. 6d. It is no part of the province of this Parliament to create work for professional gentlemen. We should provide a ready means of transferring commercial rights from one person to another. A partially-ruined trader might have nothing left but his trade mark, and instead of penalizing him by requiring him to employ professional men to effect the transfer of that mark at considerable cost, we should enable him to transfer it as easily as one may transfer one’s interest in land, scrip, or life assurance policies. A man may transfer his interest in these things for the expenditure of a shilling or two, and why should we make him pay pounds for the transference of his right in a trade mark.
Clause agreed to.
Clause 69 agreed to.
Clause 70 -
Subject to this Act, the Court . . . may order the rectification of theregister by -
Notice of every application (other than an application by the Registrar) shall be given to the Registrar, who may be heard thereon.
Amendments (by Mr. Isaacs) agreed to -
That after the word “or,” line 4, the following new paragraph be inserted : - ” (b1) The insertion in the registerof any exception or limitation affecting the registration of a trade mark which, in the opinion of the Court, ought to be inserted ; or.”
That after the word “ application,” line 5, the words “ to the Court pursuant to this section “ be inserted.
Clause, as amended, agreed to.
Clause 71 agreed to.
Clause 72 verbally amended and agreed to.
Clause 73 to 78, negatived.
Clause 79 agreed to.
Clause 80 (Incidental powers of Court).
– Is paragraph a necessary? It seems to me that power to make an order would be inherent in the Court in connexion with an application. A refusal to do so might be like a verdict of non-proven.
– There are some discretionary matters.
Clause agreed to.
Clauses 81 to 84 agreed to.
Clause 85 -
– Is it not desirable to state in this clause that in the first action the right to the exclusive use of a trade mark came into question, and the determination was in the plaintiff’s favour ? I think that that would be better than to provide that the Judge shall formally certify that the plaintiff is not to have his costs as between solicitor and client. Then too, should not the plaintiff before bringing a. subsequent action be obliged to notify the subsequent defendant of the prior trial, so that the latter, before running the risk of being saddled with costs as between solicitor and client, may have an opportunity to leave the action practically undefended? I think that the clause as it stands is rather wide. The defendant in a subsequent action, if he knew that the right to the exclusive use of a trade mark had come into question in a former action, and was determined in the plaintiff’s favour, might feel it useless to challenge that right, and I think that he should be saddled with costs as between solicitor and client only, if he persisted in raising an issue determined in the plaintiff’s favour in the previous case.
– Section 46 of the English Act makes provision for what the honorable and learned member suggests; but there is another amendment which I should like to make. I move -
That the words “ In any action for infringement,” line1, be left out, with a view to insert in lieu thereof the words “ In any legal proceeding in which validity of the registration.”
Amendment agreed to.
Amendment (by Mr. Isaacs) agreed to.
That after the word “mark,” line 2, the words “ comes into question “ be inserted ; that after the word “question,” line 4, the words “ and was decided in favour of the registered proprietor of the trade mark” be inserted; that the words “ or Judge “ wherever occurring be left out.
Clause, as amended, agreed to.
Clauses 86to 98 agreed to -
Clause 99 -
Provided that such application shall be made within six months from such person applying for protection in the United Kingdom or the Isle of Man or the foreign State with which the arrangement is in force :
– I do not quite like this clause. It seems to me that it involves an abnegation of our constitutional rights. Under section 5 1 of the Constitution, we are fully empowered to deal with trade marks, and it seems to me that we are now being, asked to surrender some of our rights in the Constitution by giving back to the Imperial authorities the right to apply to the Commonwealth any law of the United Kingdom for carrying into effect any arrangement made with the Government of any foreign State for the protection of trade marks. I do not think we should do that. In clause 100, it is proposed to deal with British Possessions which have made certain provisions for the protection of trade marks on reciprocal lines, and my idea is that if we enter into any arrangement with foreign Powers we should do so upon a similar basis. If it appears to the Governor-General in Council that foreign countries have made provision for the protection of trade marks registered in the Commonwealth we ought to give reciprocal protection to the trade marks registered in such countries. I do not care, however, to submit to the control of the Imperial authorities in this regard. I notice that it is provided that applications under the clause should be made within six months. I should like to make the registration for English or foreign trade marks subject to the condition that they were not identical with one already on the register, ‘with respect to the like goods, or so nearly resembling a Commonwealth trade mark as to be likely to deceive. Under the clause as it stands, any registration made by a citizen of the Commonwealth, under the protection of our own law,could be set aside if some similar trade mark were registered in a foreign country. It would be quite sufficient if we extended to foreign countries the powers proposed to be taken in clause 100 with regard to British Possessions.
– I am glad that the honorable member for South Sydney has mentioned this matter. I think that we should strike out the word “King” and substitute the words “ Governor-General.”
– That would be impossible.
– That would mean the Minister of Trade and Customs.
– Just in the same way as the word ‘ ‘ King ‘ ‘ would mean the President of the Board of Trade.
– Would the honorable and learned member permit a Minister of the Commonwealth, by Executive act. to bring into operation here the Statutes of a foreign country ?
– It would be better to do that than to allow the King in Council - which would mean the President of the Board of Trade - to do so. I think that we should exercise some control over the power proposed to be exercised under the clause. I would point out. further, that there is no provision made in this clause for reciprocal action, such as is contemplated” in the case of British Possessions. Some of the States have entered into reciprocal arrangements among themselves, and I see no reason why we should not follow a similar practice in regard to British Possessions and foreign countries. But we must keep the control in our own hands in the same way tha,t Queensland did in regard to the treaty with Japan relating to Asiatic immigration. That gave the Government of Queensland the right to bring into force the treaty which the Imperial Government had concluded with Japan. If we take up the position that the Governor-General, acting on the advice of his responsible Ministers, shall be the only person who can bring this provision into operation, a similar article will always be inserted in new treaties. If the honorable member for South Sydney has no amendment to submit, I am prepared to move that the’ word “King” be struck out, with a view to insert’ in lieu thereof the words “the Governor-General.”
Mr. G. B. EDWARDS (South Sydney). - I ask the honorable and learned member for Corio to consider whether the insertion of the words “ foreign state or “ before the words “British Possession” in clause 100 would not achieve the object which we both have in view. If we applied that provi sion to foreign countries, as well as to British possessions, we should insure that we should receive reciprocal .rights from those countries, and we should give our own representative of the Crown the power to call this latent legislation into existence. Personally, I have a decided objection to introducing into our legislation the King’s orders in council.
– There seems to be some misunderstanding about this provision. If honorable members will look at the Patents Act they will see that a similar provision is embodied in section 121, and for a very good reason. We wish to secure protection for our trade marks and patents in those .countries which are parties to the International Convention, as well as in our own. The International Convention of 1884 was not originally signed by Hi’s Majesty’s Government, but it was afterwards subscribed to by the Imperial authorities. Only the King can apply it to the British Dominions, if it is applied at all. The Commonwealth is not a party to that agreement, and I suppose if we requested the British Government not to apply it to us it would npt be applied. If we choose to say that Australians shall be excluded from the benefit of having their trade marks protected in other parts of the world, His Majesty will doubtless give effect to our wishes. Upon page 532 of Sebastian it is clearly laid down that the benefits to be gained are reciprocal. We have already inserted .a similar provision in the Patents Act. Honorable members will recognise that it would- be awkward if we could not secure for a patent protection all over the world. I cannot carry in my mind every provision which is contained in the Convention, but my view is that this clause is necessary if we wish to enter into the concert- if we wish to say that any person applying to register a trade mark in the United Kingdom or the Isle of Man, or in the other countries which are parties to that Convention, shall be granted priority here in accordance with the date of its registration.
– Would the AttorneyGeneral object to the insertion of the words “ at the request of the Governor-General “ ?
– If honorable members think it worth while to insert them, I have no objection.
– There is no question that the intention of this clause is to bring into force the provisions of the International Convention. Personally, I think that if the clause were not inserted, those provisions would still apply.
– There is one clause in the terms of the Convention which makes it very necessary to insert this provision.
– That may be so. I understand that under the International Convention which applies to patents where reciprocal treatment is given in any of these States, our trade marks will be protected in the country which reciprocates. The only doubt that I entertain is as to whether the countries which are parties to that Convention are reciprocating. It has been pointed out to me by the representatives of large publishing firms that some countries have not extended to us that reciprocal protection that they are required to extend under the International Convention. I think that this clause should be retained in the Bill. I ask the Attorney-General to look into the question of whether other countries have carried out their international obligations. I have been informed that, in regard to copyright, they have not.
– I do not think that this particular Convention deals with copyright.
– But the principle is the same in both cases. I doubt whether all the countries have carried out the conditions of the treaty under which it is necessary for them to pass a special Act to give reciprocal protection. We are passing this provision with that object, but in doing so we are merely re-stating for Commonwealth purposes what is already the law. I have some doubt as to whether, under this Bill, we are giving the reciprocal protection that we ought, and whether we can come under the provisions of the International Convention. I do not wish to amplify the matter, but that is one of the reasons why I asked last weekwhether the Bill had followed the lines of Imperial legislation sufficiently to give us the benefits that are conferred under the English Act. My attention has been drawn to this fact by a pretty experienced patent attorney, and expert in trade marks. He points out that, owing to the fact that this Bill, as introduced, was not up to date, it. was questionable whether we should get that reciprocal treatment in other countries to which we were entitled under the terms of the Convention. He says -
For (a) the sake of uniformity ; and (J) the Imperial Parliament’s “satisfaction” as to “reciprocal “ protection, under which alone Australia can (in relation to both patents and trade marks), become a party to the international convention, for which the Bill provides machinery ; and (c) the precedents of British experience, it may be desirable to follow the lines of the English Act rather than to adopt their proposed amendments of the Acts of 1883 and 1888, which they abandoned by dropping the 1904 Bill.
For that reason, amongst others, the writer urged the postponement of the consideration of this measure.
Mr. ISAACS (Indi - Attorney-General). - Article 2 of the International Convention provides -
The subjects or citizens of each of the contracting States shall, in all the other States of the union, as regards patents, industrial designs, or models, trade marks, and trade names, enjoy the advantages that their respective laws now grant, or shall hereafter grant, to their own subjects or citizens.
Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided they observe the formalities and conditions imposed on subjects or citizens by the internal legislation of each State.
There is a note by Mr. Sebastian in this provision, which says : -
No effect can be given to this or any other article of the convention by the Courts of the United Kingdom, except as far as it is embodied in § 103 of the Patents Acts1883.
It requires legislation to apply that provision. It is necessary for us to pass some clause of this kind if we wish to apply it.
Mr. G. B. EDWARDS (South Sydney). - I have every desire that the Commonwealth should act in unison with the rest of the Empire in retaining these advantages. It is the peculiar phraseology of the clause which I regard as objectionable. What is the instrument that governs our action ? I know of nothing outside the Constitution; but by the use of this peculiar phraseology we seem to be admitting that there is some other authority for it. Whether rightly instructed or not, I am of opinion that such an admission is weak, if not wrong. The difficulty might be met by striking out the first line, and providing that “ Where any Jaw of the United Kingdom is applied,” and so on. That would show our readiness to fall into line with a policy that was being carried out by the rest of the Empire, and at the same time it would rid us of a somewhat objectionable form of phraseology.
Mr. ISAACS (Indi- Attorney-General). - I think that the honorable member’s desire is - and none of us can fail to snare it - that whatever benefit we receive from beyond the Commonwealth should be obtained at our own request. I have no objection to so altering the clause that it will read “ If upon the request of the Governor-General,” and so forth. The King himself must apply the convention. If we put in the words I have suggested everything will be conserved.
– That which we wish to recognise is the law of the United Kingdom.
Amendment (by Mr. Crouch) agreed to -
That after the word “If,” line r, the words “ upon the request of the Governor-General,” be inserted.
Mr. G. B. EDWARDS (South Sydney). - I move -
That after the word “force,” line 20, the following words be inserted : - “ Provided also that such trade mark is not identical with one already on the register in respect of the like goods, or so nearly resembling such as to be likely to deceive.”
The object of this amendment is to protect the rights of those who have registered in the Commonwealth under our own law, any one of whom, by an accidental coincidence, might be confronted with the fact that a similar trade mark had been registered in a foreign country. I think that we should protect the rights of .those who have registered here. As_ the clause stands, a person who had registered, say, a star as a trade mark under the Commonwealth law, might find, upon treaty rights being brought into effect at the request of the Governor-General, that some one in Germany or elsewhere had registered a star in respect to similar goods. In that event the latter would take priority, notwithstanding that the local man had been the first to register his mark. The amendment is certainly necessary to protect the rights of many holders of trade marks iti the Commonwealth.
Mr. ISAACS (Indi- Attorney-General). - I trust that the honorable member will not press his amendment. I do not think that it would have the effect he suggested. This clause does not override vested rights. It merely provides that a person who has applied for registration abroad is to have priority as against another applicant. I am not sure that if we inserted the amendment it might not by implication give rights as to everything else, unless we expresslyincluded any other directions. 1 do not think this clause interferes with the rest of the Bill. When another person is registered as the proprietor of a registered trade mark, this clause will not give superior rights to any one in Australia, except in priority, not to the owner of a registered trade mark, but to another applicant.
Mr. G. B. EDWARDS (South Sydney). - In the first part of this clause we find the words that the possessor of the trade mark - shall be entitled to registration of his trade mark under this Act in priority to other applicants.
– It will simply give him priority to other applicants, that is all.
– It would give him priority to a bond fide local applicant. A man in Germany or France should not have power, simply because we enter into treaty rights, to oust the legitimate applicant for a trade mark here, because the latter, by a coincidence, has adopted the same design. It seems to me that the clause even goes beyond that. The amendment I suggest would not interfere with treaty rights. A foreign applicant would merely be limited to the extent that he would not be recognised here if application had already been made for the registration of a similar design.
– Or if a similar design had been used.
– It might be desirable to add the word “ used,” but I am not asking for that.
– Sub-clause 2 provides that -
The ,use of the trade mark in the Commonwealth during the period aforesaid shall not invalidate its registration.
If it had been, used before that it would be invalidated.
– That applies to the use of a foreign trade mark. I see no reason for objection being offered to my amendment. Whilst giving reciprocal rights to foreign bodies we should take care to protect those who have been induced to register under our law. If any distinction is to be made it should certainly be in favour of those who have registered in the Commonwealth, and complied with the conditions as to fees and so forth imposed by our own law.
– I think that we are on the horns of a dilemma in regard to the question that has been raised. On the one hand, we wish to make it clear that the clause is not designed to allow a foreign trade mark to OUS.t an Australian trade mark, whilst”, on the ether, we do not want to impose such limitations as would prevent it from operating. One would have to study the wording much more closely than I have been able to do, before coming to a conclusion on that point. I think the intention to be reasonably gathered1 from the clause is, that a foreign trade mark cannot be registered over the head of a trade mark registered prior to it. But such is the wording that counsel would find a great deal to say upon the other side. In view of the fact that at every step one takes in our series of Courts, the previous decision is usually reversed, we need to exercise care. In sub-clause 3 it is provided that -
The application for the registration of a trade mark under this section must be made in the same manner as an ordinary application under this Act.
I am inclined to think that those words, if they affect the question either way, rather uphold the view of the honorable member for South Sydney.
– What about the preceding sub-clause ?
– It does not affect the question of substance, nor do either of the provisos. It is merely to cover the interval between the application for protection in the United Kingdom and the application for registration here. I was going to suggest that the Attorney-General should add certain words.
– I was thinking that, as a temporary bridge, we might insert the words - and except as expressly provided by this section shall be subject to this Act.
– I do not think that would meet the difficulty. I think the AttorneyGeneral will find that the agreement expressly states that these reciprocal rights s,hall exist, even although in the domestic law, of the foreign States marks are registrable which are not registrable under our own domestic law. That is to say, a trade mark which is good in country “ A,” although not registrable in Australia, is to secure protection here, because it is good in that country.
– I am not sure that that is intended.
– I looked at the document hurriedly, and that was the impression which I gathered from it.
– I think that what is meant is that each country shall give to foreigners the same rights that it gives to its own subjects.
– I think that it would do no harm to .make that matter clear.
– I hope that the Attorney-General will pass the clause as it stands, and, if necessary, recommit it later on for amendment. An amendment drafted at the table is not certain to achieve the end desired when a complicated clause like this is before the Committee.
– I will recommit the clause in any case, to have the matter discussed.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 100 agreed to.
Amendment (by Mr. Isaacs) proposed -
That the following new clause be inserted : - “22.4. - (1) Where any Commonwealth or State authority, or any association or person, undertakes the examination of any goods in respect of origin, material, mode or conditions of manufacture, quality, accuracy, or other characteristic, and certifies the result of such examination by a mark used upon or in connexion with such goods, the Minister may, if he judges it to be to the public advantage, permit the authority, association, 01 person to register the mark as a trade mark in respect of such .goods, whether the authority association or person is or is not a trader, or is or is not possessed of a good-will in connexion with such examination and certifying.
When registered, the trade mark shall be deemed in all respects to be a registered trade mark, and the authority, association, or person to be the registered proprietor thereof, save that the trade mark shall not be transmissible or assignable except with the permission of the Minister.
Question - That the proposed new clause be read a second time - proposed.
Mr. McCAY (Corinella).- This clause is borrowed from the new English Act, but, whereas the English section provides that “ any association or person ‘ ‘ may undertake the examination of goods, the clause provides that “ any Commonwealth or State authority, or any association or person “ may do so. Then the English provision speaks of an examination of goods in respect to “ origin, material, mode of manufacture, quality, accuracy, or other characteristic,” all these words referring to some value in the goods themselves; but in the clause the words “or conditions ‘ ‘ have been inserted after “ mode,” and they refer, not to any quality in the goods, but to their history.
– Does not the word “origin” also refer to the history of the goods?
– I do not think that the Attorney-General would argue before a Judge at nisi prius in Westminster Hall, that the word “origin,” as used in the
English Act, refers to the history of the goods. What it means is the place of origin; as, in the case of guano, the islands from which it has come. If the word “origin,” as used in the clause, refers to the circumstances under which goods are made, why are the words “conditions of manufacture” also used? The English section provides that goods may be marked to show that some authority certifies them to be of certain quality or grade; but, under the clause, the conditions of manufacture may also be certified to. This is a tremendous step towards legalizing the trade union label; but I would suggest to the AttorneyGeneral that the words should be omitted from the clause,- and the matter left to be dealt with in Part VII. The clause differs from the English provision :.1SO in the fact that the Minister of Trade and Customs is substituted for the Board of Trade. I cannot at the present moment think of any other authority who might take the place of the Board of Trade.
– The Minister of Trade and Customs is a very good substitute.
– He is a verv bad substitute, because it is conceivable that we might have a Minister whose views would unconsciously be coloured by his political opinions. I admit that we could not imagine such a thing happening in. connexion with the present Minister ; but future Ministers may not all be like him. If the words “ or conditions “ are left in the clause, it can be used, not only for the legalization of workers’ trade marks in the way proposed ‘to be sanctioned by the Attorney-General, but even in the way in which they are used in the United States, where the consent of the registered proprietor of a mark is required before it can be used. Therefore, the clause is really worse than the Attorney-General’s workers’ trade marks provisions. Any association, if the Minister judges it to be to the public advantage, mav be authorized to register a brand relating to the conditions of the manufacture of goods, and have the goods issued with that brand on them, whether it is, or is not a trader, and is, or is not possessed of a goodwill in connexion with such examination and certifying. The association may have no ownership in the goods, and, as a fact, may have nothing to do with their manufacture, but may farm out its label to favoured maufacturers. . That is the objection to the union trade mark provisions as they came from the Senate, which the Government recognised as a valid one.
– The Minister may interpose.
– The Minister is to be satisfied that what is done is in the public interest. If such an association, as I have indicated asked the Minister of Trade and Customs whether he thought it would be in the public interest to allow a label to be registered, what would1 happen?
– He would not register it.
– The honorable member for Maranoa makes that astounding interjection from the place where the Minister usually sits, and that makes it all the worse. Whether the Minister said “ yes “ or “ no,” a purely trade matter could be made a political question of the most acute character. I have looked at this clause very carefully, and I find that it would enable everything to be done that could Have been done by clauses 73 to 78 that we have just struck out of the measure.
– The honorable and learned member has overlooked several important words. The Commonwealth or State authority, or any association or person, must “ undertake the examination of the goods,.”
– I quite understand that. An association could undertake the examination of the goods to-morrow. No provision is made that the association be formed solely for the purpose of undertaking the examination of the goods. If the Attorney-General would amend the clause by inserting after the word1 “ association “ the words “formed solely for such purpose,” I should be satisfied.
– We could not say that a Commonwealth or State authority should be “ formed solely for such purpose.”
– No. I desire that condition to be applied only to the association.
– That would block the manufacturing jewellers.
– Or it might block an ordinary trading company.
– Then why not leave out the word’s “or conditions”? My objection, applies most strongly to them. The clause with those words in it would enable everything to be done that could have been done under the provision that was passed by the Senate. The Minister could find a hundred reasons for coming to the conclu-sion that the registration would be for. the public advantage. Will the AttorneyGeneral deny that a trade union could, under this clause, with the consent of the Minister, get a union label registered and applied to goods produced under union conditions? Further, will he deny that that union could refuse to grant the use of the label to an employer?
– No one has ever said that the American unionists have granted the label to favoured manufacturers, and denied it to others.
– I am speaking of legal rights, and not of facts - those will be dealt with later on. I do not want any one to have the right to do as I have described. I would trust my rights to no man’s generosity or sense of justice.
– Yet the honorable and learned member is prepared to give full liberty to the proprietors of trade marks to use them as they like, regardless of the public interest.
– That question does not arise in this case.
– Yes it does. The honorable and learned member knows that trade marks are sometimes used in such a way as to boycott a certain proportion of the population.
– I cannot follow the honorable member. If he had pointed out cases in which that could occur, I would have been ready to assist him to prevent the use of trade marks for the purposes of boycott.
– I am not in favour of placing any embargo upon any one.
– Then the honorable member is in favour of boycotting all round?
– I say that every one should have the same liberty.
– It is interesting to know that the honorablememberproposes to give everybody the right to boycott. I want to give nobody the right to boycott.
– A good deal depends upon the terminology - upon the meaning which the honorable and learned member applies to the word “boycott.” Does he mean coercion or not?
– Not ostensible coercion, but actual coercion. The Attorney-General knows what “boycott” means.
– It has been defined both in the Courts and elsewhere in different senses.
– It produces very similar results, in every case. The refinements referred to have been confined to the Law Courts. The effects are very much the same in every case.
– What about the employers’ boycotts, such as black lists?
– I think that the black list which the honorable member for Maranoa brought under our notice some time ago was a very improper thing.
– Ask the honorable member for Kooyong ; he knows something about it.
– That is not correct.
– Did not the Broken Hill Mining Company have a black list?
– If they did, I knew nothing about it.
– There is not an Employers’ Federation that does not use the black list, more or less.
– None of them have any right to do so. I shall be perfectly willing to join with honorable members in devising methods of preventing its use.
– We are now dealing with the second reading of the proposed new clause, and I would suggest to the honorable and learned member that its details could be more conveniently disussed at a later stage. I presume that the clause itself is not objected to as a whole.
– If the clause is to go through as it is, I would sooner have none of it. I desire to direct the attention of honorable members to the wording of the clause. It provides that where any association undertakes the examination of any goods in respect of conditions of manufacture, and certifies the result of such examination by a mark used upon such goods, the Minister may, if he judges that it would be to the public advantage, permit the association to register the mark. It does not need a lawyer to understand what that means. That means that any association may have its mark, and that it may examine goods in respect to conditions of manufacture - as to whether they are unionmade goods or not, not as to whether they are made under fair or unfair conditions
– That is included.
– No, that is a mistake. There are plenty of non-union made goods which are turned out under fair conditions.
– Then let them have a label.
– I say the same thing, and if the honorable member will look at some amendments I have suggested, he will find that I am in favour of adopting that course. The clause would enable a trade union to undertake the examination of goods, and to certify whether they had been made under union conditions- irrespective of whether other goods have been made under fair conditions. And if the Minister considered it in the public interest - and I think some Ministers would have generous ideas upon that point - the association would be enabled to register its mark as a trade mark. The mark would then belong to the union, which could agree or refuse, as it chose, to place it on goods. It could decline to attach the mark to goods made under conditions that would justify its being applied to them. All the union would have to do,would be to undertake the examination of the goods with respect to the conditions of their manufacture, and no doubt they would perform; that part of the work with great cheerfulness. They would also succeed in giving the Minister reasons why their label should be registered. I think that some Ministers, in the generosity .and kindness of their hearts, might be very easily persuaded on that point, and yet the only bulwark between the position I have put and the discriminating use of the union label is the non-approval of the Minister. Much as I esteem that gentleman, and highly as I value his powers of resistance - I have seen him resist the opposition coming from this corner with great vigour-
– Has the honorable and learned member ever seen him resist the Labour corner?
– I have not. I fear that he would not be able to resist it. I say that these words have been inserted for a specific purpose. To my mind, it is desirable that the bond fide dispute between honorable members, as to the wisdom of incorporating these provisions in the Bill, should take place upon definite proposals, and not upon a proposal to insert a few words which are apparently harmless, but the introduction of which, as a matter of fact, is fraught with the greatest danger. Unless the Attorney-General agrees to omit “or conditions of manufacture,” I trust that the second reading of this clause will not be carried.
– I desire to express my personal obligation to the honorable and learned member for Corinella for having directed our attention to a feature of this clause which had previously escaped my notice. It seems to me that the words which have been introduced by the Attorney-General add another objectionable restriction to those which have already been imposed under the Commerce Bill. Hitherto public attention has been wholly directed to Part VII. of this measure. Nobody ever dreamed that any other part of it was pregnant with the, possibilities to which reference has been made by the honorable and learned member for Corinella. I say that the Attorney-General should have frankly assisted the Committee to understand the extent of the application of this clause. The more I read it, the more I am convinced that he has approached as closely as he can to the definition of a worker’s trade mark. I trust that the discussion upon this proposal will be limited to the merits or demerits of such a trade mark. Nobody ever suspected that any other portion of the Bill contained an insidious provision of this character.
– I referred to the matter yesterday.
– If this is a deliberate attempt to make operative the intentions of Part VII. of the Bill, where are. the bona fides of the Attorney-General ?- Surely we are entitled to receive from him some indication of what is for the public good.
– The words to which I directed attention have been added.
– Exactly. They are not in Mr. Moulton’s Bill, or in the English Act. They have been deliberately introduced. I repeat that we are entitled to ask the Attorney-General to be frank with us, and to point out the changes which have been made in the whole scope and purpose of the Bill.
Mr. GLYNN (Angas).- After looking through this clause, to which I referred yesterday, I am further convinced that I was not altogether wrong in surmising that these variations from the English Act have been made deliberately, in order to allow the union label to be registered, apart altogether from the specific clauses with which we have yet to deal. My first impression has been confirmed by the shape which the new clauses have now assumed. Itf honorable members will read the last series of proposals tabled by the AttorneyGeneral, they will see that they do not clearly declare what a union label means.
– The new clause states that they may be registered.
– My impression is that the alteration which has been made fits in with the scope that the Bill has acquired, by reason of the excision of some words which appear in English legislation, and of the addition of others. I agree with the remarks of the honorable and learned member in this connexion. The words “mode of manufacture” may appear to be comparatively innocent; but I may tell honorable members that in the case of Regina v. Bramall, which was brought under the Merchandise Marks Act of 1887, they were held to refer to the question of whether an article had been machine-made or hand-made. That has nothing whatever to do with the union label. What particularly struck me when I saw these words introduced, was that in some of the leaflets issued by associations in America for the purpose of expounding the objects of the union label, it is actually stated that they are intended to secure certain forms of label. Is not that significant? Leaflets have been distributed in the United States, setting forth the objects of the union label, and in these it is stated that it is designed to secure fair conditions of labour. Mr. J. B. Reynolds, who is the head of the wellknown college settlement in New York City, on behalf of a committee who were organizing to push the union label, issued a leaflet explaining what the label was designed to do, and in one part of this leaflet it is stated that -
It means or aims to insure that work is done under wholesome conditions. ls it not significant that the words “ conditions of manufacture “ are used in this clause? It seems to me that the words “conditions of “labour” and “conditions of manufacture “ have practically the same meaning. Mr. Reynolds went on to point out to the public that -
To promote the use of the union label means then to unite with workers in the struggle to make the conditions of labour under which work is done more sanitary, the conditions of the worker safer, and the products of better quality.
He then went on to point out that -
The Committee regards the label as the only sign which indicates that the work has been done under suitable conditions.
These are the words of the head of a representative body which met chiefly to discuss the extension of the union label, objection having been raised that its use was against the consumer, as the products to which it was applied were not always of the best quality. One of the professed objects of the union label is to insure better “ conditions of1 labour.” In this clause, we have the words “ conditions of manufacture,” but “conditions of labour,” in relation to the union label, have been held to refer to proper sanitation, shorter hours, and the class of house in which the goods bearing the union label are manufactured. I think it ought to be fairly clear to the Committee that by retaining these words we really extend the scope of the Bill, and that even if the subsequent clauses be not accepted by the Committee it will be possible for the Minister to recognise the union label. The clause would enable a certificate to be placed upon goods indicating that they had been manufactured under conditions which the unions enought suitable. In addition to that, this clause falls in with those dealing with the Commonwealth label which appear in Part VIIa. in the list of amendments. Even if that part be not accepted, this will practically accomplish all that is desired. There may be some difficulty in applying the clause. A man may not have power to walk into a factory to see under what conditions work is carried on. No right is given, but we know that men do make such inquiries
– How would an examination of the goods show the condition of their manufacture?
– In the United States, a man may walk into a factory and make inquiries.
– But how would an examination of goods show their manufacture in that sense?
– It is a question not of sense, but of what may take place under this clause. The certificate may indicate that the association has examined a particular factory, and found that its sanitation < is not good, whilst the hours of labour are ‘ long.
– How could they tell that by examining the goods?
– I admit that there are certain difficulties in the way of the application of the clause in the direction I SUE gest. I may be met* at the outset by the statement that ar manufacturer is not compelled to allow a man to enter his factory to ascertain the conditions under which his goods are manufactured. But if he were allowed, a man might go into a factory and inquire generally as to the conditions under which goods were produced there. He might say that the men were compelled to work ten hours a day for very low wages, that the apprentices were in excess of the number that should be employed, and that their wages were below the current rates. This clause will accomplish all that is desired by the union label.
– Not at all.
– If we object to the union label development, then we ought to attack this clause, which really recognises it and gives it a statutory protection. I think that the honorable and learned member for Corinella should have moved the excision of these words.
– The honorable and learned member should now move their omission.
– I do not wish to anticipate action on the part of the honorable and learned member, but some one must move their omission before the debate closes, because a division ought to be taken on the question of whether this clause should pass as it stands. The AttorneyGeneral may convince us that it is a very useful addition to the English legislation - that it will bring the Bill more into harmony with the Act of 1905 ; but until he is able to do so I shall remain of opinion that the words to which I have referred should be excised.
Mr. ISAACS (Indi- Attorney-General). - I can only say that my honorable friends have discovered a “mare’s nest.” The extent to which the clause departs from the English Act is perfectly plain on the face of it. First of all, the words “Any Commonwealth or State authority” have been inserted. We know that the Commonwealth authority has not yet done anything in this direction, although it may do so in connexion with the Commerce Bill. But the State authority does in many instances undertake the examination of goods for export, and for other purposes, to the advantage of the country.
– Take hall-marking, for example.
– Quite so. Trade unions could not come under this clause, and I never supposed that they could. I cannot understand how it can be said that a provision as to an association of persons who undertake the examination of goods for any one who asks them to do so can be applied to a trade union. What is the meaning of “association” as used in this clause? It is simply this: That there are some persons, whether in association or not, who hold themselves out as expert examiners of goods, and who may issue certificates in respect of goods that are submitted to them. We have, for instance, the goldsmiths, who issue certificates in respect of gold and silver plate; but this clause is to apply to all goods. Certificates may be issued by an association, and if it acquires a high reputation, theMinister, if he thinks it to the advantage of the public, may permit it to secure a trade mark. But this is not to apply to trade unions.
– That is all right so far as every part of the clause, except that relating to conditions of manufacture, is con*cerned.
– The word’s “conditions of manufacture “ are capable of a very different signification than that they apply to hours of labour and so forth. But I am willing to limit them to the Commonwealth and State authorities.
– Why not strike them out?
– No; the State authority might find the examination very advantageous to the people.
– The word “ conditions ‘* may refer to the sanitary condition.
– At all events, the State authority, and even the Commonwealth authority, may find it advantageous to the people to examine goods as to conditions of manufacture in any sense, and no fear need be entertained that trade unions are to impinge upon this matter. I am willing to insert a sub-clause providing that -
This section shall, as to conditions of manufacture, apply to Commonwealth and State authorities only.
– A most invidious distinction would be made if the State authority were allowed to march into factories^
– The State authority may do as it pleases. We do not compel it to take action, but if it chooses it may do so. In order to show honorable members that this clause was never intended to apply to trade unions, I am willing to move the amendment I have indicated. I never1 imagined for a moment that such a contention could be raised as that which we have just heard.
Mr. JOSEPH COOK (Parramatta).I should like to ask the Attorney-General one question. It is conceivable, we are told, that an examination of goods as to their conditions of manufacture may be necessary for purposes other than those relating to their origin, material, mode, and so forth, but for what other purposes?
– Butter, for instance, might be made in a cool chamber or otherwise.
– Would not that be a question affecting the quality or origin of the article?
– But that is a different thing. “ Conditions of manufacture “ may apply to the conditions under which it is manufactured.
– With what object ? Merely to find out what is the quality of the goods? If that be so, the elimination of these words would not make the clause less effective than it is.
– We cannot distrust the State authority or the Commonwealth authority.
– Why not? We have had reasons before to-day to distrust Commonwealth and State Cabinets, and I, for one, am not prepared to give the Minister of Trade and Customs any further powers in this direction than those which he now enjoys. In the marginal note we are told that this clause relates to the standardization of goods, and the application of trade marks to them. I find, on referring to the Commerce Bill, that there is to be no inquiry under that measure as to the nature of goods, although it has been specially charged with such matters. Reference is made in it, not to the method of manufacture, but to the manufacturer or producer. Why, therefore, should a distinction, be made in this instance ? There is nothing in the phraseology of the clause which would exclude trade unions from its operation.
– Did not the honorable member hear me state the amendment I was prepared to make?
– The Opposition are in a morbid condition of suspicion.
– We ought to have some straightforward dealing in connexion with this matter. The AttorneyGeneral now professes to be ready to so alter the clause as to meet the justifiable criticism which has been levelled against it. He therefore admits the possibility of that which has been suggested.
– I do not.
– Will the honorable and learned gentleman say that the word “ association “ does not cover a trade union ?
– I do not think that, as used in this clause, it could possibly cover a trade union.
– In what respect does the word “ association, ‘ ‘ as used in this clause, differ from the word in the definition clause?
– In this clause the association is one which undertakes the examination of any goods.
– Cannot a trade union do that?
– I never heard of such a thing.
– A trade union is formed for the specific purpose of making inquiry into the conditions under which goods are produced. It exists principally to see that goods are manufactured under fair conditions.
– Trade unions do not examine goods to arrive at that decision.
– They must necessarily examine the goods in order to do so. The honorable member knows that they do.
– I do not.
– In what other way could they appraise their work ? In what other way could they decide the conditions to be observed’ from the unionist stand-point ? “ Conditions of manufacture “ are words which refer to something other than quality or mode, or make-up of goods, and it would be part of the functions of a wellregulated trade union to see that only goods manufactured under union conditions were certified to. The insertion of the words in the clause may have been accidental, but the Attorney-General hag shown a recognition of the force of the criticism which they have provoked in his willingness to suggest an amendment to meet it.
Mr. McCAY (Corinella). - I intend to move the omission of the words “ or conditions,” but before doing so, I should like to know what suggestion the AttorneyGeneral has to make for meeting the criticism which has been offered to the clause?
– I propose to add as subclause 3 the words -
This section shall as to conditions of manufacture apply to Commonwealth and State authorities only.
Mr. GLYNN (Angas). - I think that the Attorney-General might consent to strike out the words “any association or person.” There is reason in the Commerce Bill, and possibly in some States Acts, for providing for the marks of a Commonwealth or State authority, though I do not know that it is very desirable to extend the functions of Government in the manner proposed.
– I do not think that the words “ association or person “ should be struck out, because there are associations - generally of employers - whose object it is to give a guarantee to the public of the quality or standard of certain goods which are not the property of the associations. If the word “association” were struck out, it would prevent the Wholesale Jewellers’ Association of Melbourne, for instance, from registering its hall mark, because it is not the owner of the goods to which t-hat mark is applied.
– I would prefer to see the words “ conditions of “ struck out-
Mr. McCAY (Corinella). - I move -
That the words “ or conditions,” line 4, be left out.
I cannot see under what circumstances the Commonwealth or State authority might be called upon to undertake the duty of marking goods in accordance with the conditions of their manufacture.
– Perhaps, under the Commerce Bill.
– Under the Commerce Bill, goods will be graded only as regards their quality. It is intended by the Bill to give buyers and consumers a guarantee that goods are of a certain standard of quality ; but the conditions of manufacture are not intended to be certified to.
– A State might legislate in that direction.
– A State might legislate in the direction of authorizing its officials to place a mark on goods which were, or were not, union made.
– Or which were, or were not, made under sanitary conditions.
– But it seems to me that we need not make provision for such legislation in advance.
– What harm could be done by leaving the words in?
– I see no advantage to be gained by retaining them ; and I think that they will be better left out. I am surprised that the Attorney-General, having practically admitted, by the amendment which he suggests, the justice and accuracy of my criticism will not go further. I think that it will be best to retain those words in the clause whose meaning is understood, and to leave out these additional words for the insertion of which there is at the present time no obvious reason..
– What is the objection to them ?
– The objection to them is that they are extraneous, and do not belong to this part of the measure. The English section, from which the clause has been adapted, deals specifically with marks indicating the character of goods.
– And their origin and mode of manufacture.
– If the honorable member thinks that origin and mode of manufacture cover the ground which would be covered by retaining the word “conditions,” why does he wish that word to be retained ? In my opinion, neither “origin” nor “mode of manufacture “ refer to the conditions under which the goods were made.
– They go beyond the quality of the goods.
– The honorable and learned member for Angas has shown, by his illustration in regard to machine-sewn and hand-sewn goods, how mode of manufacture is interpreted’. I trust that the AttorneyGeneral will accept the amendment in the spirit of compromise in which it is Offered.
Mr. ISAACS (Indi- Attorney-General). - When the honorable and learned member rose first he suggested a fear that trades unions might make use of the words “ conditions of manufacture “ in order to accomplish all that it was desired to achieve under the part of the Bill relating to the use of workers’ trade marks. I have absolutely removed that suggestion, and still he is not satisfied. If that were the only reason ‘that actuated the honorable and learned member, why is he still persisting in striking out the words?
– Because I think that the amendment affords the best means of achieving the end I have in view.
– The honorable and learned member is afraid that the State authority will undertake to tell its people that something is done under sweating conditions or non-sweating conditions. The honorable and learned member does not want the State to do that.
– The Attorney-General is as fair and ingenuous as usual.
– I want to face this question.
– Have we any constitutional authority to do what is proposed ?
– The State has the constitutional authority to do it for itself, and we say that if the State chooses to do it, we will permit it to register the mark which it puts upon the goods. I do not suggest that we have the authority to either order the State or to empower it to undertake any such work.
– It is proposed to enable the State to say whether goods are made by unionists or non-unionists.
– If the State chooses, why should it not do so?
– That is not the test of sweating.
– I have never put that as a test of sweating. The States would say whether the goods were made under sweating conditions or otherwise, and the only fear must be - and the honorable and learned member was challenged to state his reasons, and he did not do so - lest the State will undertake to inform the people whether or not the goods are made under humane conditions. I am not going to yield to an objection of that kind.
– What is to prevent the States from , doing that now ?
– When we legislate for trade marks the States will have no power to register their trade marks as trade marks unless we make provision for them in the Bill.
– But cannot the State prevent sweating without attaching a trade mark to goods?
– I am not dealing with that question. My point is that we are dealing with a proper subject for trade mark law. A similar provision has been adopted by the British Parliament. The principle of this clause is one that has been challenged in this House and outside of it. It has been held that you cannot have a proper conception of trade mark unless the mark belongs to the owner of the goods.
– Does this clause follow the exact wording of the English Act ?
– It follows the principle of the English Act, and the principle to which I am now referring is embodied in the English Act. The principle of this clause is that the ownership of the trade mark is not in the person in whom the proprietorship of the goods is. vested. If the words objected to are resisted on the ground that we should not permit the State if it chooses to inform the people as to the conditions of manufacture, I cannot accept the amendment.
Mr. McCAY (Corinella).- The AttorneyGeneral has charged me with being unwilling to allow the public to be informed as to whether or not goods have been manufactured under sweating or humane conditions. I want to tell him that that statement is utterly incorrect. My quarrel has all along been with the false theory that only union-made goods are turned out under humane and proper conditions, and it is for that reason that I have taken up the attitude of opposition to these particular words and to other clauses. If the Attorney-General had taken the trouble to read certain amendments I have suggested in connexion with other clauses, he would have found that I recognise that the real issue should be between sweated ‘ and non-sweated goods. In all the States that have Arbitration Acts or Wages Boards which control the hours and wages and kindred conditions of labour, those industries to which the awards of the Courts or the determinations of the Boards apply, are carried on under proper conditions, whether the employes be unionists or non-unionists.
– That has been disproved in a recent case.
– There are evasions, no doubt, and the evaders should be severely punished. The distinction between unionists and non-unionists does not affect the issue of sweating at all, and it is because that false issue has been raised - an issue alien to the whole spirit of Australian legislation - that honorable members are quarrelling with the proposal of the AttorneyGeneral. I thought that the AttorneyGeneral would have known better than to make such charges. He made an adcaptandum appeal to imagined ignorance, instead of an appeal to reason. It was unworthy of him, and unworthy of the position he occupies to use any such arguments. I object to the State or to an association making a distinction which is not a real distinction between fairly-made and unfairly-made goods.
– There is not a word about unionists or non-unionists in this clause.
– No; but the distinction between non-unionists and unionists could be made under the provisions of the clause, and that is the cause of my quarrel with it. My objection to the words proposed to be struck out is that they make it possible to introduce a false standard of comparison in Australia - one which is alien to the spirit of the wise Australian legislation which has provided fpr Arbitration Courts and Wages Boards to regulate the conditions of work.
– There is another phase of this question which I should like to present with a view to indicate the necessity of retaining the words which the honorable and learned member for Corinella wishes to strike out. Any one who has watched the trend of legislation in the States must realize that the interests of the public are being conserved to a greater extent every day. A Pure Foods Bill is before the Victorian Parliament, and measures of a similar character have already been passed by other States Legislatures, and we should, by means of the Bill now before us, endeavour to assist the States to carry on their good work. It can readily be recognised that in order to make effective the work of a State Department, or the work of an association which may be formed for the specific purpose of examining and certifying as to the quality of goods,, some provision must be made for the registration of the marks which will indicate that the goods have been made under satisfactory conditions, and that they are pure and up to standard. Let us take the case of the Victorian butter industry. Not only is the produce examined as to quality and branded accordingly, but inquiries are made as to the conditions under which it is manufactured. In the event of faulty samples of butter being received, inspectors are sent to the factories from which thev were received to instruct the managers in the most approved methods of production.
– Is that done under a Trade Marks Bill ?
– I am stating facts which I contend have an important bearing upon the amendment. Every one knows that the conditions of manufacture affect the quality of many goods - particularly articles of food. At present the States authorities make provision for the inspection of meat and rabbits, and other articles of food, with a view to protecting the public as far as possible against the dissemination of disease. It is well known that goods made in sweating establishments have been the means of spreading disease, and it is surely necessary to provide some safeguard against the sale of such articles. Unless goods are made under wholesome conditions they cannot be pure. I contend that if we agree to the amendment, we shall incur considerable risk in this connexion.
Mr. JOSEPH COOK (Parramatta).- I think that we are getting on splendidly. We only need to hear a few more speeches of a similar character to those which have been delivered by the Attorney-General and the honorable member for Darling, to realize exactly what is contained in this Bill. The Attorney-General has told us now that it is an anti-sweating Bill, and the honorable member for Darling has informed us that it is a Factories Bill and a Health Bill.
– The honorable member objects to those measures?
– No. But I object to introducing provisions of that nature into this Bill. We ought to have been told what was the intention and purport of the measure. It is not a Trade Marks Bill in the ordinary sense of the term at all. It is a measure which seeks to promote the health of the* people, and to insure that they shall work under fair conditions. I say that we have not the constitutional power to do anything of that kind. During the present and previoussessions, we have been endeavouring to secure an alteration in the Constitution, so as to permit the Commonwealth to legislate in regard to factory inspection and’ uniform industrial laws. We cannot do that without first securing an amendment of the Constitution, but we can “ sneak” those matters into this Bill, I suppose?
– Is that what the honorable member calls insuring fair conditions to the workers - “ sneaking ‘ ‘ them into the Bill?
– I do not see the relevance of the honorable member’s interjection. I am referring to the constitutional side of this matter.
– The honorable member does not want to see it.
– I am just as anxious as is the honorable member that the people shall work under good conditions. I believe that he is honestly seeking to benefit the workers. But surely he does not suppose that he is the only person who knows what is good for them?
– I endeavour to do my best.
– But the honorable member should credit others with endeavouring to do their best for the people.
– I am sure the honorable member is not trying to do that.
– I am obliged to the honorable member for his opinion. I do not value it. He is not doing the best that he can for the workers by indulging in this sort of humbug. The people outside will suffer as the result of his action.
– That is what the honorable member tells us in respect of every Bill.
– Trade marks do not affect the health of the people, or the conditions under which they live and labour. They affect solely the quality of articles of merchandise, and they have nothing necessarily to do with the conditions under which goods are produced. Certainly they have nothing to do with the health of the people. We require another set of laws entirely to compass those objects. What we cannot do under the Constitution by means of factory legislation, we are endeavouring to clandestinely effect in this Bill. That is not straightforward conduct; and I venture to say that it will be entirely ineffective for the purposes contemplated by honorable members opposite should it ever be placed upon our statutebook. We have not the power–
– To register a trade mark?
– We have not the power to register a trade mark which relates to the conditions of manufacture and the examination ofgoods. As far as I can see, we can get no trade mark which will take the place of a Factories Act. If we desire to enact factory legislation and to provide proper sanitary conditions for the workers let us support the honorable member for Melbourne Ports in his endeavour to secure an amendment of the Constitution which will enable us to obtain control of these powers. Then, we may use them throughout the length and breadth of Australia. I say again, that in this Bill we are seeking to usurp a function which is already provided for in the Commerce Bill. That measure inquires into the condition of rabbits, meat, &c, and vests the Minister with power to brand them.
– If persons wish to register any such brand as a trade mark, why should not they have power to do so?
– Why does the honorable member require to duplicate legislation? The Commerce Bill guarantees the quality of butter, meat,&c., and the States themselves possess extensive and expensive paraphernalia to do the rest. As a matter of fact they are doing it.
– They cannot register a trade mark.
– Would the registration of a trade mark enable them to examine a rabbit or a piece of beef any better than they are doing now ? Would it afford an additional guarantee that the beef was fit for human consumption? I say again that under the Attorney-General’s amendment we are setting up a piece of factory legislation which will enable us to assist the States in the inspection of factories and in the determination of the conditions which various goods shall be made. It is not within our legislative compass to do that. To insert this clause would, at the best, be a meddling interference with the States. If we want these further powers let us take thestraightforward course suggested by the honorable member for Melbourne Ports, and ask the States to grant them to us.
Mr. HENRY WILLIS (Robertson).After having listened to the discussion upon this measure, I am bound to confess that the honorable and learned member for Angas was right when he said that the clause is unnecessary, and should be struck” out. If the honorable and learned member for Corinella is sincere in his desire to nullify the bad effect of the provision, he will agree to the suggestion of the Attorney-General, who is willing to confine its operation to a State which may appoint an officer for the purpose of having a trade mark registered. Either the honorable and learned member is opposed to the clause entirely, or he is not. If he is opposed to it he should vote for its excision, but if he merely wishes to nullify its bad effect he will accept the suggestion of the Attorney-General. In my opinion, the deputy leader of the Opposition was right when he declared that the object of the clause is to give an additional power to trade unions. It amplifies what is proposed in Part VII. of the Bill. The amendment of the honorable and learned member for Corinella will have no more effect than will the proposal of the AttorneyGeneral, and, consequently, I decline to support it.
Mr. KNOX (Kooyong). - I admit at once that the Attorney-General has gone a considerable distance towards removing the fear that I had entertained in regard to the possible application of this clause. But in the most complete way he has justified the discussion which has taken place. He admits that he had in his mind that a State or Commonwealth authority might interfere with the conditions under which goods are produced. I am sure that the public did not for one moment believe that such a sinister proposal was hidden in this clause, and I regret that the Attorney-General has not dealt more frankly with the Committee. Honorable members opposite must not imagine that they possess a monopoly of the desire to protect the workers. I claim that I am as anxious as is any honorable member to improve the lot of the working classes, and in support of that statement would point to my record outside. The desire of the Opposition is that this Bill shall be so framed that the public will be able to tell at a glance for what purpose it is designed. We do not wish it to be converted into a Public Health Bill, a Wages Board Bill, or anything of that kind, and we hold, therefore, that it should relate strictly to trade marks. In the opinion of the Opposition, the proposed new Part VII. is opposed to the interests of the workers, and will afford ground for a fair fight between the opposing forces. But we did not expect that an outpost in the shape of this clause would be put forward lest the main army might be defeated. We have not been fairly treated, and I resent the suggestion made by the Attorney-General, that the Opposition, in opposing this clause, are influenced by a desire to prevent all work being carried out under humane conditions. Our opposition is based on the one ground that such a provision as this should not be introduced in this part of the Bill, and that we ought to have had from the Attorney-General a frank explanation of the effect of a new clause brought in by himself. If we cannot repose the fullest confidence in the AttorneyGeneral, we have reached a sorry stage. The honorable and learned gentleman told me the other day that he was Attorney-General not only for the Ministry, but for the House, and I should like him to deal with the Committee from that stand-point. He must have made the mental reservation that there was a power in this clause which did not appear on the surface, and he should have acted frankly–
– To what power does the honorable member refer?
– The power to make examinations as to the conditions of manufacture
– I say that that is the argument of those who oppose the clause.
– I hold that it is highly important that it should be clearly understood that the clause goes further than we at first believed.
Mr. McCAY (Corinella). - In order to expedite business, I wish to withdraw my amendment in favour of that suggested by the Attorney-General. It covers a good deal of the ground, although, perhaps, not the whole of it.
Amendment, by leave, withdrawn.
Mr. ISAACS (Indi- Attorney-General). - Before moving the amendment which I have indicated, I desire to intimate that I propose to add it to the end of the clause, so that if any honorable member has a prior amendment to move, he should at once submit it. As it appears that no one desires to move a prior amendment, I move -
That the following new sub-clause be added : - “ (3) This section shall, as to conditions of manufacture, apply to Commonwealth and State authorities only.”
Amendment agreed to.
Proposed new clause, as amended, agreed to.
Mr. ISAACS (Indi- Attorney-General). - I understand that it is the desire of honorable members that we should proceed now to deal with the non-contentious clauses.
Honorable Members. - Hear, hear.
– That brings us to proposed Part VIII. - protection of trademarks. I move -
That the following new clause be inserted : - “78Q. Whoever-
forges a registered trade mark ; or
falsely applies a registered trade mark to any goods; or
makes any die, block, machine, or instrument for the purpose of forging or of being used for forging a registered trade mark; or
disposes of or has in his possession any die, block, machine, or instrument for the purpose of forging or of being used for forging a registered trade mark, shall, unless he proves that he acted without intent to defraud, be guilty of an indictable offence, and liable to imprisonment for any term not exceeding three years.”
Mr. McCAY (Corinella). - I wish the Attorney-General to state what will be the effect of the departure from the ordinary clause in the criminal code, which is embodied in the provision, that the person charged -
Unless he proves that he acted without intent to defraud, shall be liable to imprisonment. The ordinary forgery provisions of a criminal code make the forgery and the mens re the two things necessary for a conviction. Here, apparently, the principle observed in the Customs Act of assuming the guilt of a person until he proves his innocence is applied to a limited extent. I would ask the Attorney-General what are the reasons for departing from the ordinary form of the criminal code ?
Mr. ISAACS (Indi- Attorney-General). - I cannot for the moment place my hand on the English Act from which this is taken, but I think that it is in the ordinary form. The offence referred to in paragraph a speaks for itself. The false application of a registered trade mark to any goods, which is dealt with in paragraph b may be the mere fact of false application, whilst I think that the offences mentioned in the succeeding paragraphs are of such a class that the person charged should at least prove that he had no intent to defraud So far as. three of these cases are concerned. I do not know how we could do otherwise than presume the guilt of the person concerned. But, as to one of them, I can understand–
– If a man forged a trade mark, I do not think that any one would believe his statement that he had no intention to deceive.
– The provision to which the honorable and learned member has called attention may be quite right, so far as paragraph b is concerned ; and, perhaps, that is the only reason why it has been inserted. I do not think he can complain of the words in question.
Mr. McCAY (Corinella). - In proposed new clause 78V, we have the following definition of “ forgery of trade mark “ -
A person shall be deemed to forge a registered trade mark who either -
without the assent of the proprietor of the trade mark or the authority of this Act makes it or a mark so nearly resembling it as to be likely to deceive…..
That provides a new terror for imitators of trade marks.
– These words are in the English Act.
– What commonly happens when B is sued for using a colourable imitation of A’s trade mark is that he is cast in damages, ordered to account, and restrained from continuing the infringement. The Bill, however, also calls the offence forgery.
– It is not the applying, but the making, of the mark which is forgery.
Proposed new clause agreed to.
Amendments (by Mr. Isaacs) agreed to -
That the following new clauses be inserted : - 78R. Whoever sells or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods to which any forgery of a registered trade mark is applied or to which any registered trade mark is falsely applied, shall be guilty of an offence against this Act, unless he proves -
that he acted without intent to defraud ; or
Penalty : One hundred pounds. 78s. Whoever imports into Australia any goods to which any forgery of a registered trade mark is applied or to which a registered trade mark is falsely applied shall, unless he proves that he did not knowingly import the goods in contravention of this Act, be guilty of an offence against this Act.
Penalty : One hundred pounds. 78T. Whoever aids abets counsels or procures or is in any way knowingly directly or indirectly concerned in or privy to -
Penalty : One hundred pounds.
Amendment (by Mr. Isaacs) proposed -
That the following new clause be inserted : - 78U. - (1) The following goods are prohibited to be imported, and shall, if imported, be forfeited to the King : -
All goods to which any forgery of a registered trade mark is applied, or to which any registered trade mark is falsely applied ; and
all goods manufactured at any place outside Australia and having applied to them any trade mark being the registered trade mark of any manufacturer dealer or trader in Australia unless the trade mark is accompanied by a definite indication of the country in which the goods were made or produced.
All imported goods forfeited under this section may be seized by any officer of Customs.
The provisions of the Customs Act 1901 shall apply to the seizure and forfeiture of goods under this section to the same extent as if they were prohibited imports under that Act.
Before taking any action under this section or permitting any officer of Customs to act thereunder, the Collector of Customs for the State may require the person requesting any action on the part of the Customs to give security in accordance with the regulations.
Mr. McCAY (Corinella). - I wish to point out to the Attorney-General that an importer might import goods to which a forgery of a registered trade mark was applied without knowing that there was anything improper about them.
– Sub-clause 4 might meet that case.
– I do not think that it meets the case to which I am referring. It prevents blackmailers from pretending to be honest friends of the public, but it does not protect the importer who has innocently contravened the provisions of the Act. I shall not propose any amendment, but I think that the Minister or the Collector of Customs should be empowered to forego forfeiture of goods when satisfied that the importer has not wilfully contravened the Act, provided that the forged trade mark is erased, and, perhaps, some penalty paid. I do not think that an innocent Australian consignee should suffer for the wrong-doing of a foreign consignor.
– Paragraph b provides that goods imported into Australia bearing the registered trade mark of any locally-manufactured article shall be forfeited to the King. It is desirable that the Customs authorities shall have power to confiscate goods to which a locally-registered trade mark has been fraudulently applied, but the paragraph to which I refer may be used by a local manufacturer as a weapon against an importing competitor. An imported article may bear as its registered trade mark, let us say, a lion, and under this provision a local manufacturer, by registering a lion as his trade mark, could prevent further importations.
– Not if the trade mark on the imported goods were accompanied by definite indications of the country in which they were made.
– The manufacturer abroad would not immediately know of the action of his rival in this country. Australia is only a small market for many of the manufacturers of other countries. Knives go from Sheffield to all parts of the world, but the Australian market is not large enough to justify Sheffield manufacturers in using special trade marks to meet Australian conditions, until they know that that is absolutely necessary. If a local manufacturer were to register one of these trade marks, he could cause the forfeiture of all goods then in transmission.
Mr. ISAACS (Indi- Attorney-General). - I propose to move several amendments in this clause, which I think will meet the objection which has been raised to it. The new sub-clause which I intend to insert is similar to a provision in the Commerce Bill.
Proposed new clause amended to read as follows, and agreed to -
Amendments (byMr. Isaacs) agreed to -
That the following new clauses be inserted : - 78V. A person shall be deemed to forge a registered trade mark who either -
without the assent of the proprietor of the trade mark or the authority of this Act, makes it or a mark so nearly resembling it as to be likely to deceive ; or
falsifies any registered trade mark, whether by alteration, addition, effacement, or otherwise. 78w. - (1.) A trade mark Shall be deemed to be applied to any thing if it is woven in, impressed on, worked into, or annexed or affixed to. the thing.
A trade mark shall be deemed to be applied to goods if -
it is applied to the goods themselves ; or
it is applied to any covering, label, reel, or thing in or with which the goods are sold or exposed or had in possession for any purpose of trade or manufacture; or
) it is used in any manner likely to lead to the belief that it refers to or describes’ or designates the goods.
” Covering “ includes any stopper, glass, bottle, vessel, box, capsule, case, frame, or wrapper; and “ label “ includes any bond or ticket.
A trade mark shall be deemed to be falsely applied to goods if, without the assent of the proprietor of the trade mark or the authority of this Act, it or a mark so nearly resembling it as to be likely to deceive is applied to the goods. 78X. In any indictment, information, pleading, or proceeding in relation to a registered trade mark, it shall not be necessary to set out a copy or fac-simileof the trade mark’ or a description of it, but the trade mark may be referred to as a registered trade mark. 91A. - (1) Any address for service Stated in any application or notice of opposition shall for all purposes of the application or notice of opposition be deemed to be the address of the applicant or opponent, as the case requires, and all documents in relation to the application or notice of opposition may be served by leaving them at or sending them to the address for service of the applicant or opponent, as the case requires.
Any address for service may be changed by notice in writing to the Registrar.
Extra Sitting Days : Close of the Session.
– In moving -
That the House do now adjourn, at this comparatively early hour, I desire to inform honorable members that we can scarcely hope to conclude our sittings at this time in future. In view of the early, close of the session, we must sit not only. for longer hours, but upon more days than we have hitherto devoted to the business of the country. I hope that honorable members after this early adjournment will give us their best assistance in disposing of the Trade Marks Bill this week, because, even with the extra days and hours at our disposal, our strength will be taxed to the utmost to dispose of the measures awaiting our attention before Christmas.
– It will be fairer to honorable members, especially those who are in the habit of returning to their homes at the week end, if the Prime Minister at once informed them whether he proposes to sit after the usual hour of adjournment On Friday next, and on the following day.
– Certainly ; unless we have disposed of the Trade Marks Bill.
– It would be almost as great a pity to interfere with the private liberties of honorable members in regard to going to and returning from their homes, as it would be to endeavour to force through the Trade Marks Bill by the application of the “ gag.” It seems to me that we ought to know definitely what we may expect, because many of us have to make arrangements ahead. For instance, I have made an appointment to proceed to my constituency with a Minister in order to attend to certain departmental requirements. If the House is to sit late on Friday next, and meet on the following day, I shall have to abandon all my plans. It should be fully understood that the decision to sit on extra days is not due to any action on the part of the Opposition in delaying business, but to the desire of the Government to push through an undue amount of work before the session closes.
Mr. HENRY WILLIS (Robertson).If it were the intention of the Government to close the session at the end of next week, Icould quite understand the proposal to sit on extra days. I trust that the Prime Minister will not this week sit later than the usual hour of adjournment on Fridays. I see no reason, however, why we should not afterwards sit on Mondays, or meet at an earlier hour on the ordinary sitting days.
– I hope the Prime Minister will adhere to his determination to make the fullest possible use of the time atour disposal between now and Christmas. In view of the time that has been lost, if not wasted, during the last few months, it is extraordinary to hear honorable members in opposition raising an objection to devoting a little extra time to the business of the country. They should have some consideration for representatives of the distant States, who are anxious to return as soon as possible to their constituents, whom they have no opportunity of visiting more than once during the year. We have very little to show for the time that we have been in session, and I hope that the Government will insist upon carrying through their programme. I shall give them all the assistance I can.
Question resolved in the affirmative.
House adjourned at 10.40 p.m.
Cite as: Australia, House of Representatives, Debates, 29 November 1905, viewed 22 October 2017, <http://historichansard.net/hofreps/1905/19051129_reps_2_29/>.